IN THE SUPREME COURT OF THE STATE OF MONTANA 

MICHAEL BIRRER, 

petitioner and Appellant, 

-vsTRUSTEES, WHEATLAND COUNTY SCHOOL DISTRICT 

NO. 15, and NANCY KEENAN, Superintendent of 

public Instruction, 

Respondents and Respondents. 

APPEAL FROM: District Co.urt of the First ~udicial District, 

In and for the County of Lewis & Clark, 

The Honorable Thomas Honzel, J.udge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Emilie Loring; Hilley & ~oring, Missoula, Montana 

For Respondent: 

Chadwick Smith; smith Law ~irm, Helena, Montana 

Beda J. ~ovitt, Office of public Instruction, Helena, 

Montana 

Filed: 

submitted on ~riefs: Nov. 21, 1989 

Decided: February 6, 1990 

(0, 1, - '# I 

r - 

4 Clerk 
~ustice John C. Sheehy delivered the Opinion of the Court. 

In this case, we affirm the termination of a tenured teacher 

by the Wheatland County School District No. 16, not on the grounds 

of ltsubstantial compliancen with the applicable termination 

statute, but upon the grounds that there was an unrefuted necessity 

for a reduction in force by the School District and because the 

procedure used by the Board in termination did not offend the 

purposes of the termination procedure statute (3 20-4-204, MCA). 

Accordingly, we affirm the decision of the District Court, 

First Judicial District, Lewis and Clark County, which in turn 

affirmed the decision of the State superintendent of public 

Instruction, the Wheatland County Superintendent of Schools and the 

School District. 

Michael Birrer was a tenured music teacher employed in the 

Wheatland County High School at Harlowton. On March 9, 1987, the 

school trustees accepted the written recommendation of Harlowton 

superintendent Gary Scott that the teaching positions held by 

Birrer and one other teacher be eliminated because of overstaffing at the secondary level and lack of available funding. 

This recommendation required that the contracts of the two teachers 

not be renewed for the 1987-1988 school year. On March 9, 1987, 

the trustees accepted the recommendation of the Superintendent. 

On March 10, 1987, the Board, through its chairman, notified Birrer 

in writing that the Board had voted not to renew his contract. A 

hearing on Birrerls termination was set for a special meeting of 

the Board on March 30, 1987. Birrer appeared at the special 

meeting but did not offer any evidence or testimony refuting the 

necessity for the reduction in force. The Board decided to let the 

decision of termination llstandll and on April 1, 1987, the chairman 

wrote Birrer a letter that the Board "did reaffirm by unanimous 
vote their decision made at the regular March 9, 1987 meeting not 

to renew your teaching contract.I1 

Birrer appealed to the Wheatland Superintendent of Schools who 

affirmed the termination, as did the Superintendent of Public 

Instruction on further appeal. ~irrer then appealed to the 

District Court which affirmed the termination and this appeal 

followed. 

The acceptance by the trustees on March 9, 1987, of the 

recommendation for a reduction in force and to terminate Birrer, 

a tenured teacher, before notifying the teacher of the 

recommendation and giving the teacher a hearing thereon, clearly 

violated 5 20-4-204, MCA. That statute provides: 

20-4-204. Termination of tenured teacher services. 

(2) Whenever the trustees of a district receive a 

recommendation for termination, the trustees shall, 

before May 1 of the current school fiscal year, notify 

the teacher of the recommendation for termination and of 

the teacher's right to a hearing on the recommendation. 

(4) The trustees shall: 

(b resolve at the conclusion of the hearing to 

terminate the teacher or to reject the recommendation for 

termination. 

The statute comprehends that the Board of Trustees not make 

a decision respecting a recommendation for the termination of a 

tenured teacher until after a hearing. In this case, the trustees 

accepted a recommendation before the hearing was granted, and 

reaffirmed the decision after the hearing. 

The language of 5 20-4-204, MCA, foregoing, is the result of 

an amendment to this statute in 1985 (Ch. 56, Laws of Montana 

(1985)). Until 1985, the trustees were empowered to act on a 
termination recommendation, and then notify the teacher of the 

termination and of the right to a hearing. The 1985 amendment was 

an attempt to correct what had been perceived as an unfair 

procedure for terminating tenured teachers. The purpose of the 

amendment was to prevent pre-formed opinions by the trustees 

against which the efforts of a teacher to overturn at a subsequent 

hearing would be ineffectual. 

Birrer maintains in this appeal that the clear violation of 

the procedural statute entitles him to reinstatement and that the 

District Court erred in holding that llsubstantial compliance with 

the relevant statute" was sufficient for a valid termination. The 

trustees, on the other hand, claim that Birrer was afforded due 

process in this case and that technical irregularities in the 

procedure of termination do not affect the legality of his 

termination. 

The trustees rely on language contained in the decision of 

this Court in Montana Power Co. v. Fondren (1987), 226 Mont. 500, 

511, 737 P.2d 1138, 1145, that due process requires only notice and 

hearing "at a meaningful time and in a meaningful manner." That 

language is not applicable here, however, because in the 

termination of a tenured teacher, the legislature has specified the 

procedures to be taken. Section 20-4-204, MCA, in itself defines 

due process for the termination of a tenured teacher. 

We must also reject the argument of the school trustees that 

the procedure followed in the termination of Birrer was merely a 

lltechnicalll irregularity, not affecting due process. The 

lltechnicalityll here goes to the very heart of the 1985 amendment 

by the legislature. It is obviously the public policy adopted by 

the legislature to protect tenured teachers from unjustified 

terminations by requiring that school trustees keep an open mind 

relating to the suggested termination until both sides have an 

opportunity to be heard. 

Notwithstanding the foregoing, however, we affirm the 

termination of Birrer because of the obvious rectitude of the 

trustee's decision. This is not a case where the teacher was 
terminated for some personal reason. He was not accused in any way 

of incompetence, immorality, unfitness or violation of Board 

policy. He faced no bias or unfair attitude. He was personally 

liked. What ~irrer faced at the March 30 special meeting was the 

undeniable and overwhelming state of the school finances and the 

requirement that two teachers be eliminated in order to meet 

budgetary constraints. The trustees may have had a pre-formed 

opinion on March 9, 1987, when they accepted the recommendation of 

the School superintendent. That conclusion, however, was not 

singly the result of the Superintendent's recommendation; the 

trustees, in the very performance of their duties as trustees, were 

surely aware of the financial situation, and were as much forced 

to a reduction in force by that knowledge as by the recommendation 

of the Superintendent. 

We find, therefore, under the peculiar facts of this case, 

that the purposes of the procedural statute, 5 20-4-204, MCA, to 

protect the tenured teacher from pre-formed opinions or ex parte 

presentations to the school trustees were not contravened here. 

Birrer was terminated not because of lack of due process, but by 

the inevitable force of financial events over which neither the 

School District nor Birrer had any real control. For those 

reasons, we affirm the District Court, but we do not hereby condone 

the failure of the trustees to follow the procedures of 5 20-4- 

204, MCA. Costs on appeal to Birrer., 

We Concur: , -' / 

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