No. 12878 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

ROBERT S. BITNEY, 

Plaintiff and Appellant, 

-vs - 

SCHOOL DISTRICT NO. 44 et al., 

Defendants and Respondents. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable Jack D. Shanstrom, Judge presiding. 

Counsel of Record: 

For Appellant : 

C. W. Jones argued, Billings, Montana 

For Respondents: 

Landoe and Gary, Bozeman, Montana 

Donald E. White argued, Bozeman, Montana 

Submitted: March 4, 1975 

Decided : ,, ; ,. ,,~ d ,- , , "- 

Filed: ' 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal from an amended judgment of the district 

court, Gallatin County, awarding plaintiff $166.47 in sick leave, 

and $1,347.90 in annual leave as compensation upon termination of 

his employment as superintendent of schools for School District No. 

44, Gallatin County. 

Plaintiff Robert S. Bitney was hired by defendant school 

district as school superintendent for the school years 1970-71, 

1971-72, and 1972-73, under three separate written contracts of 

employment. Defendant school district at a board meeting held on 

January 9, 1974, resolved to terminate plaintiff's employment with 

the school district at the expiration of his contract for that 

school year. 

Upon completion of the school year, plaintiff filed a claim 

with the school board for $4,537.93 for 75 days of unused annual 

leave; $513.34 for 34 days of unused sick leave; and $144.28 for 

fringe benefits. Plaintiff arrived at these figures by dividing 

his yearly salary by 12 for a monthly salary figure; divided that 

figure by 20, the average number of working days per month, for a 

daily rate of pay. He followed that procedure for each year he was 

employed by the school district; then multiplied the resulting 

figure by the number of days of annual leave and sick leave he had 

not used during that year. 

Defendant school district denied his claim, but tendered 

plaintiff $166.47 as compensation for unused sick leave. 

During the period of his employment plaintiff attended 

classes at Montana State University working towards his doctor of 

philosophy degree. The school board was aware of this at the time 

they entered into each of the employment contracts. 
Plaintiff brought this action to recover the amount 

alleged due him by the school district. The cause was tried 

before the district court, sitting without a jury. The court 

in its original findings of fact and conclusions of law held 

that under the contract with the school district plaintiffs 

annual leave did not accrue from year to year and consequently 

plaintiff was entitled to only 20 days annual leave under his 

contract, but under section 59-1002, R.C.M. 1947, plaintiff is allowed, as a state employee, to accrue up to 30 days annual leave. 

The court further found that plaintiff had taken 3 days of annual leave 

during the school year and that he was away from his job attending 

classes at Montana State University for a period of time equivalent 

to 19 working days. The court found plaintiff had used 22 days 

of annual leave during the school year 1972-73, and under his 

contract was entitled to no reimbursement for annual leave, but 

under section 59-1002, he was entitled to 8 days of compensation for 

annual leave (30 days accumulated leave - 22 days used). 

To find plaintiff's daily earnings, the court divided 

plaintiff's 1972-73 annual salary of $15,400 by 365, the number of 

days in a year, which results in a daily rate of $42.19. The 

court multiplied the daily rate by the 8 days found to be owing 

plaintiff, to arrive at $337.52, the amount the court stated the 

school district owed plaintiff for annual leave. 

The court further found plaintiff was entitled to 12 days 

sick leave for 1971-72 and 12 days for 1972-73. The court then 

found that plaintiff's daily earnings for 1971-72 was $40.00 per day. 

Therefore, the school district owed as unused sick leave $480 

to plaintiff for 1971-72, and $506.28 for 1972-73, for a total of 

$666.28. Under section 59-1008, R.C.M. 1947, plaintiff is entitled 

to a lump sum payment of one-quarter of that amount or $166.47. 

Therefore, the court held the school district owed plaintiff $337.52 as compensation for annual leave and $166.47 as compensation for sick leave, or a total compensation of $503.99. The 
court further ordered that each party pay its own attorney fee. 

Plaintiff challenged those findings of fact and conclusions 

of law. A hearing was held on the challenge. The court then 

amended its findings and conclusions, finding that plaintiff was 

still entitled to $166.47 for sick leave, but was entitled to a 

full 30 days annual leave in addition to those days used in the 

1972-73 school year. The court then took plaintiff's 1972-73 salary, 

found to be $16,400 rather than $15,400 previously used, and divided 

it by 365 days, which came to a daily rate of $44.93, which, multiplied by 30, came to $1,347.90 the amount due plaintiff for unused 

annual leave. The annual leave and sick leave total $1,514.37. 

From that amended judgment, plaintiff and defendant school district 

appeal. 

The three contracts between plaintiff and the school district were identical, except for a yearly increase in salary, and 

read : 

"THIS AGREEMENT between Robert S. Bitney, a 

Superintendent duly qualified to supervise, 

administer, and teach in the Public Schools of 

Montana, Party of the First Part, and the Board 

of Trustees of Belgrade School District No. 44, 

County of Gallatin, State of Montana, Party of 

the Second Part: 

"WITNESSETH THAT: Party of the First Part agrees 

mperform the regular duties of a school administrator of such Second Class School during the ensuing year beginning July 1, 1972 and ending June 

30, 1973: 

"AND THAT the Party of the Second Part further 

agrees to grant the Party of the First Part, one 

(1) full month's leave from his school duties, with 

full remuneration, in addition to the regular full 

sick leave allowed other teachers in the school 

system. 11 

The question presented for review on appeal is whether 

plaintiff is entitled to accumulated annual leave, sick leave, 

a.nd attorney fees. 
Before plaintiff's right to accumulated annual leave and 

sick leave can be ascertained, it first must be determined whether 

his right to annual leave and sick leave is -mk$contractual, or 

whether he can bring himself within the purview of section 59-1002, 

and section 59-1008, R.C.M. 1947, which govern annual leave and 

sick leave of an employee of the state, county or city. 

There is no doubt Mr. Bitney, as superintendent of schools, 

was an employee of the school district, and therefore a public 

employee. Section 59-1007, R.C.M. 1947, excludes school teachers 

from that part of the act allowing annual leave and sick leave. 

The question then becomes -- whether or not Bitney, as school superintendent, can be classified as a school teacher. 

In State ex rel. Howard v. Ireland, 114 Mont. 488, 138 

P.2d 569, this Court held that there is a distinction between a 

superintendent and a teacher in matters of hiring and dismissal. 

The distinction there, however, evolved from two different statutes 

for hiring and dismissal, one covering teachers and the other 

covering superintendents. Here, there are not two different statutes 

regulating the compensation of teachers and superintendents. Both 

are hired on a contractual relationship between the individual and 

the school board. 

The contract itself states Bitney is qualified to teach 

in the school district and states he is entitled to "regular full 

sick leave allowed other teachers in the school system." (Emphasis 

ours). Such language implies both parties considered Bitney a 

school teacher. So for the purpose of interpreting this contract 

only, we classify Bitney as a school teacher, which would make 

sections 59-1002 and 59-1008, R.C.M. 1947, not applicable to him. 

This problem then arises--teachers, because of the 9 month 

school year, do not receive vacation time. Superintendents serve 

the entire year, therefore annual leave becomes a necessity to their 

contracts. Here, Bitney contracted with the school board for one 

month's vacation time with full remuneration. The contract is 

silent as to accumulation and/or remuneration on termination. There 
is only one superintendent to a school district and this problem 

rarely arises so there is no school district policy which would 

assist in the interpretation of the contract language. 

The parties agree that we must look to the contract to 

determine ~itney's and the school district's rights and obligations. 

But, what standard should apply when the contract is silent or vague 

in this area? Does Bitney have a right to compensation for unused 

vacation time? Does he have a right to compensation for unused 

sick leave? 

First, we consider the question of sick leave. plaintiff's 

contract explicitly states : 

"AND THAT the party of the Second Part further 

agrees to grant the Party of the First Part, one (1) 

full month's leave from his school duties, with full 

remuneration, in addition to the regular full sick leave 

allowed other teachers in the school system." (Emphasis 

ours). 

Therefore, we find plaintiff contracted for the regular sick leave 

granted to all teachers of the school district. 

The "~oard ~olicy/~eacher Handbook", a book distributed 

to all faculty members by the school district was entered into 

evidence. It states this policy of the school district as to sick 

leave compensation: 

"(a) Eight days of sick leave, with full pay, shall 

be given each year of contract employment. 

"(b) A teacher on contract may accumulate a total of 

forty days of sick leave during continuous tenure in 

the Belgrade Schools. It 

The book then goes on to explain the procedare if a 

teacher is sick and his or her sick leave accumulation. But nowhere does it provide for compensation for accumulated sick leave 

upon the termination of employment. Therefore we find there was 

no policy for compensation of unused sick leave by the school district upon termination of employment. The district court erred 

in awarding plaintiff $166.47 for accumulated unused sick leave. 
As to the annual leave, the contract provides plaintiff 

shall receive one month's annual leave with full remuneration. 

And again, there is no school district policy concerning vacation 

time, and nothing mentioned in the handbook for teachers and 

superintendents. In or&er to interpret the contract, we feel 

compelled to turn to the overall policy established by the legislature concerning annual leave and its accumulation. Section 

59-1002, R.C.M. 1947, before amendment in 1974, provided: 

1 I Annual vacation leave may be accumulated to a total 

not to exceed thirty (30) working days. I I 

Since government agencies must work within the confines 

of a fiscal budget, it is only logical that the legislature limited 

the accumulation of annual leave. That way departments of government 

can estimate more precisely the annual leave compensation for 

employees terminating their employment. School districts must also 

work within budgets. They too, must know what to expect in compensating terminating employees. 

Here, the contract in question is silent on the matter so 

we will apply the same standard established by the legislature 

"for all public employees", which would entitle plaintiff to 30 

days accumulated annual leave upon termination of his employment 

with the school district. 

It follows that we must determine how much compensation 

plaintiff is to be paid for the 30 day annual leave. There is no 

authority cited by either party as to the computation which must 

be used. Plaintiff argues that his annual salary should be divided 

by twelve to determine his monthly compensation; that amount should 

be divided by 20, for 20 working days in a month, to arrive at the 

daily wage; then that amount should be multiplied by the number of 

days of annual leave allowed. 

Since there has been no authority cited by either party 

to demonstrate that the district court erred in determining the 

amount of annual leave compensation by dividing plaintiff's annual 
salary by 365 to determine a daily wage, then multiplying the amount 

by the 30 days of annual leave accumulated, this Court finds the 

district court acted properly in its determination. 

We find nothing in the record to support the annual salary 

figure of $16,400 for the 1972-73 school year. The amount of 

annual salary shown on the face of the 1972-73 contract is $15,400. 

That amount divided by 365 establishes a daily rate of $42.92. 

When that daily rate is multiplied by the 30 days of accrued leave 

it equals $1,287.60. This is the accrued vacation pay the school 

district owes plaintiff. 

There is some controversy as to whether or not plaintiff 

should be charged annual leave for the time taken to attend school. 

The parties were aware of this arrangement at each contract time 

and selected to ignore it. The school district did not question the 

arrangement until this litigation arose and it appears that plaintiff's attendance at school benefited both plaintiff and the school 

district for the three year period in question. It is much too late 

now to examine into the arrangement and reform their mutual executed 

agreement. 

The final issue for this Court's determination is the question 

of attorney fees. Plaintiff argues he is entitled to attorney fees 

as section 41-1306, R.C.M. 1947, expressly states that any judgment 

for wages shall include attorney fees. The school district counters 

that section 41-1301(3) (b) , R.C.M. 1947, expressly excludes plaintiff 

from recovering attorney fees. It provides: 

"'Employer' includes an individual, partnership, 

association, corporation, business trust, a legal 

representative, or any organized group of persons, 

actinz directlv or indirectlv in the interest of an 

emploTer in relation to an ekployee, but shall not - 7 

include the United States, state of-~ontana, or any 

legal subdivision thereof." (Emphasis ours). 

The general rule is that attorney fees are not recoverable 

by successful litigants either in law or equity, except where 

they are expressly provided for by contract or statute. Roseneau 

Food, Inc. v. Coleman, 140 Mont. 572, 374 P.2d 87. Although section 
41-1306, R.C.M. 1947, provides for attorney fees in judgments 

for wages, this Court finds that section does not apply to state 

government or any of its subdivisions which would include defendant school district, for it is expressly excluded in the 

definition of employer as above quoted in section 41-1301(3)(b), 

R.C.M. 1947. Therefore, the district court properly denied 

attorney fees to plaintiff. 

That part of the judgment of the district court granting 

sick leave terminative pay to plaintiff is reversed. We affirm 

that part of the judgment that awarded 30 days annual leave pay 

and denied attorney fees to plaintiff. We remand the cause to the 

district court for an order correcting the computation of annual 

leave awarded, consistent with this opinionf'" 

Justice / 

We Concur: 

................................. Justices. 

Mr. Chief Justice James T. Harrison did not participate in this 

cause.