No. 12878 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

ROBERT S. BITNEY, Plaintiff and Appellant,

-vs

# - SCHOOL DISTRICT NO. 

### 44 etal., 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 isan 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 DistrictNo. 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 ata board meeting held on January 9, 1974, resolved to terminate plaintiff's employment with the school district atthe expiration of his contract for that school year. Upon completion of the school year, plaintiff fileda 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 fringebenefits. Plaintiff arrived atthese figuresby dividing his yearly salaryby 12 for a monthly salary figure; divided that figureby 20, the average number of working days per month, for a dailyrate of pay. He followed that procedure for each year he was employed by the school district; then multiplied the resulting figureby thenumber 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 forunused sick leave. During the period of his employment plaintiff attended classes atMontana StateUniversityworking towards his doctor of philosophy degree. The schoolboard was aware of this atthe time they entered into each of the employment contracts.Plaintiff brought this action torecover the amount alleged due him by the school district. The causewas tried before the district court, sittingwithout a jury. The court in 

### its original findings of fact and conclusions of law held that under the contract with the school districtplaintiffs annual leave did not accrue from year toyear and consequently plaintiff was entitled toonly 20 days annual leave under his contract, but under section 59-1002, 

### R.C.M. 1947, plaintiff 

### is allowed, as a stateemployee, toaccrue 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 hisjob attending classes atMontana StateUniversity for a period of time equivalent to 19working days. The court found plaintiff had used 22 days of annual leave during the school year 1972-73, and under his contract was entitled tono reimbursement forannual 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, thenumber of days ina year, which results in a dailyrate of $42.19. The court multiplied the dailyrateby the 

### 8 days found tobe owing plaintiff, to arriveat$337.52, the amount the court stated the school district owed plaintiff for annual leave. The court further found plaintiff was entitled to 12days 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 asunused 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 toa 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 sickleave, ora totalcompensation of $503.99. Thecourt 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 stillentitled to $166.47 for sick leave, but was entitled to a full 30 days annual leave inaddition to those days used in the 1972-73 school year. The court then took plaintiff's 1972-73 salary, found tobe $16,400 rather than $15,400 previously used, and divided itby 365 days, which came toa dailyrate of $44.93, which, multiplied by 30, came to $1,347.90 the amount due plaintiff forunused annual leave. The annual leave and sick leave total $1,514.37. From that amended judgment, plaintiff and defendant school district appeal. The three contractsbetween plaintiff and the school districtwere identical, except for a yearly increase in salary, and read: "THISAGREEMENT 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, Stateof 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 ensuingyear beginning July 

### 1, 1972 and ending June 30, 1973:

"AND THAT the Party of the Second Part further agrees togrant the Party of the First Part, one (1) fullmonth's leave from his school duties, with fullremuneration, inaddition to the regular full sick leave allowed other teachers in the school system. 11 The question presented forreview on appeal iswhether plaintiff is entitled toaccumulated annual leave, sick leave, a.nd attorney fees.Before plaintiff's right toaccumulated annual leave and sick leave canbe ascertained, it firstmust be determinedwhether hisright 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 isno 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 leaveand sick leave. The question then becomes

# -- whether ornot Bitney, as school superintendent, can be classified as a school teacher. In Stateexrel. Howard v. Ireland, 114Mont. 488, 138 P.2d 569, this Court held that there 

### isa distinctionbetween a superintendent and a teacher inmatters of hiring and dismissal. The distinction there, however, evolved from two different statutes forhiring and dismissal, one covering teachers and the other covering superintendents. Here, there arenot two different statutes regulating the compensation of teachers and superintendents. Both

arehired on a contractual relationshipbetween the individual and the schoolboard. The contract itself statesBitney 

### is qualified to teach in the school district and stateshe 

### is entitledto "regular full sick leave allowed other teachers in the school system." (Emphasis ours). Such language impliesboth parties considered Bitney a school teacher. So for the purpose of interpreting this contract only, we classifyBitney as a school teacher, which would make sections 59-1002 and 59-1008, R.C.M. 1947, not applicable tohim. This problem then arises--teachers, because of the 

### 9 month school year, do not receive vacation time. Superintendents serve the entireyear, therefore annual leavebecomes a necessity to their contracts. Here, Bitney contracted with the schoolboard for one month's vacation time with fullremuneration. The contract is silent as to accumulation and/or remuneration on termination. There

### is only one superintendent toa school district and this problem rarely arises so there 

### isno school district policy which would assist inthe 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 applywhen the contract is silent or vague in this area? Does Bitney have a right tocompensation forunused vacation time? Does he have a right to compensation forunused 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)

fullmonth'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 theregular sick leave granted toallteachers of the school district. The "~oard ~olicy/~eacher Handbook", a book distributed to allfacultymembers by the school districtwas entered into evidence. It states this policy of the school district as to sick leave compensation: "(a) Eight days of sick leave, with fullpay, shall

be given each year of contract employment. "(b) A teacher on contract may accumulate a total of fortydays of sick leave during continuous tenure in theBelgrade Schools.It The book then goes on to explain the procedare if a teacher 

### is sick and his orher sick leave accumulation. But nowhere does it provide for compensation foraccumulated sick leave upon the termination of employment. Thereforewe find therewas
no policy for compensation of unused sick leaveby the school districtupon termination of employment. The districtcourt erred inawarding plaintiff $166.47 for accumulated unused sick leave.As to the annual leave, the contract provides plaintiff shallreceive one month's annual leavewith fullremuneration. And again, there 

### isno school districtpolicy concerning vacation time, and nothing mentioned in the handbook for teachers and superintendents. In or&erto interpret the contract, we feel compelled to turn to the overallpolicy established by the legislature concerning annual leave and 

### itsaccumulation. Section 59-1002, 

### R.C.M. 1947, before amendment in 1974, provided:

1IAnnual vacation leavemay be accumulated to a total not toexceed thirty 

### (30) working days. II Since government agencies must work within the confines of a fiscalbudget, it 

### isonly logical that the legislature limited the accumulation of annual leave. That way departments of government

can estimatemore precisely the annual leave compensation for employees terminating their employment. School districtsmust also work withinbudgets. They too, must know what to expect incompensating terminating employees. Here, the contract inquestion is silent on the matter so

we willapply the same standard established by the legislature "for allpublic employees", which would entitleplaintiff to 30 days accumulated annual leaveupon termination of his employment with the school district. It follows that we must determine how much compensation plaintiff is tobe paid for the 30 day annual leave. There 

### isno authority citedby 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 ina month, toarrive atthe dailywage; then that amount should be multiplied by thenumber of days of annual leave allowed. Since there has been no authority citedby eitherparty todemonstrate that the district court erred in determining the amount of annual leave compensation by dividing plaintiff's annualsalaryby 365 to determine a dailywage, then multiplying the amount by the 30 days of annual leave accumulated, this Court finds the district court acted properly in itsdetermination. We find nothing in therecord 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 dividedby 365 establishes a dailyrate of $42.92. When that dailyrate ismultiplied 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 towhether ornot plaintiff should be charged annual leave for the timetaken to attend school. The partieswere aware of this arrangement ateach contract time and selected to ignore it. The school districtdid 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 inquestion. It 

### ismuch 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 toattorney fees

as section 41-1306, 

### R.C.M. 1947, expressly states that anyjudgment forwages 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, orany organized group of persons,

actinz directlv or indirectlv in the interest of an emploTer inrelation toan ekployee, but shallnot - 7 include the United States, state of-~ontana, or any legal subdivision thereof." (Emphasis ours). The general rule is that attorney fees arenot recoverable by successful litigants either in law or equity, except where they are expressly provided forby contract or statute. Roseneau Food, Inc. v. Coleman, 140Mont. 572, 374 P.2d 87. Although section41-1306, R.C.M. 1947, provides for attorney fees injudgments forwages, this Court finds that section does not apply to state government or any of its subdivisionswhich would include defendant school district, for it 

### is expressly excluded in the definition of employer asabove quoted in section41-1301(3)(b), R.C.M. 1947. Therefore, the district court properly denied attorney fees toplaintiff. That part of thejudgment of the districtcourt granting sick leave terminative pay toplaintiff 

### is reversed. Weaffirm that part of thejudgment that awarded 30 days annual leave pay and denied attorney fees toplaintiff. 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.