No. 80-394 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

TIM YANZICK, 

Petitioner and Respondent, 

SCHOOL DISTRICT NO. 23, LAKE COUNTY 

MONTANA et al., 

Appellants and Respondents. 

Appeal from: District Court of the First Judicial District, 

In and for the County of Lewis and Clark. 

Honorable Gordon Bennett, Judge presiding. 

Counsel of Record: 

For Appellants: 

Garlington, Lohn and Robinson, Missoula, Montana 

Sherman V. Lohn argued, Missoula, Montana 

Boone, Karlberg and Haddon, Missoula, Montana 

Sam Haddon argued, Missoula, Montana 

Richard P. Heinz, County Attorney, Polson, Montana 

For Respondents: 

Datsopoulos, MacDonald and Lind, Missoula, Montana 

Christopher Swartley argued, Missoula, Montana 

For Amicus Curiae: 

Smith Law Firm, Helena, Montana 

Chadwick Smith argued,Mt. School Boards Assoc., Helena, Montan

John Larson argued, Superintendent of Public Instruction, 

Helena, Montana 

Emily Loring argued, Montana Education Association, Great 

Falls, Montana 

Submitted: September 16, 1981 

Decided : FEB i m: 

Ar 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court . 

This is an appeal from the judgment of the District 

Court of the First Judicial District, Lewis and Clark County, 

dated August 22, 1980, under the Administrative Procedure 

Act. The District Court found for Tim Yanzick, a tenured 

school teacher, reversing the decision of the State Superintenden

of Public Instruction. The Superintendent of Public Instruction 

had affirmed the decision of the Lake County Superintendent 

of Schools, who had affirmed the determination by the Board 

of Trustees of School District No. 23 not to renew Yanzick's 

contract. We reverse the District Court and reinstate the 

decisions of the State Superintendent and the County Superintendent. 

The issues which we find to be determinative are: 

(1) What is the standard of review which is to be 

applied by the County Superintendent, the State Superintendent, 

the District Court and this Court? 

(2) Did the County Superintendent, State Superintendent, 

and District Court each act within its authority? 

(3) Based upon the transcript and record before the reviewin 

agency and courts, was the decision of the County Superintendent clearly erroneous? 

Following are the pertinent facts disclosed by the 

record before the County Superintendent: 

Tim Yanzick was a tenured teacher of seventh grade 

science and math at Polson Middle School in Lake County, 

Montana. He had taught there for seven years. In the fall 

of 1976 problems arose with regard to Yanzick's living 

arrangements with Sharon Scott, a fellow teacher, and with 
regard to various events taking place both in and out of the 

classroom. These will be detailed in our review of the 

findings of fact of the County Superintendent. In January, 

1977, Dr. Christensen, Superintendent of School District No. 

23, and Mr. Dupuis, the principal of Yanzick's school, met 

with Yanzick. There were extensive discussions which will 

be reviewed later. Following further conferences between 

Yanzick and Christensen, and upon the recommendation of 

Christensen, the Board of Trustees decided not to renew 

Yanzick's contract for the school year 1977-78. Yanzick was 

notified of the decision on March 15, 1977. Pursuant to 

Yanzick's request, the specific reasons for the Board of 

Trustees' decision were contained in the letter to Yanzick 

dated March 24, 1977. The letter sets forth the following 

reasons for non-renewal of Yanzick's contract as follows: 

"1. The Board of Trustees believe that you 

have demonstrated a lack of fitness for teaching in the position in which you have been 

employed and such a lack of fitness as indicated in all statements made to your class of 

Junior High School students between the ages 

of 11 and 14 years, with the effect that your 

'girlfriend' had to move out of your home because some people did not like your living 

arrangements, which statements were made under 

circumstances where it was common knowledge 

to your students and some of their parents 

that you and Miss Sharon Scott, a physical 

education teacher in the Polson School 

district, were living together at that time 

in your home in Polson, Montana. 

"2. The Board of Trustees believe you have 

further demonstrated a lack of fitness for the 

teaching position in which you have been employed by reason of your introduction of the 

subject of abortion in your classroom, wherein you inquired of the boys in your class, 

ages 11 to 14, 'How many of you boys would 

have your girlfriend get an abortion if she 

were pregnant?' 

"3. The Board further feels that you have 

also demonstrated a lack of fitness for employment in the teaching position by a serious lack 

of good judgment in permitting the use in your 
classroom of human fetuses brought by one of 

your students who had obtained them without 

authorization from St. Joseph's Hospital Laboratory without the knowledge of the administration of that hospital or of the owner of the 

specimens. 

"4. The Board of Trustees further believe that 

you have demonstrated a lack of moral values 

by openly and notoriously cohabitating with a 

female teacher, not your wife, within the relatively small community of Polson, Montana, 

which fact, and the knowledge of which fact 

among your students, has adversely affected 

your performance as a teacher. 

"5. The Board is of the opinion that you 

lack fitness for the classroom teaching position in which you have been employed because 

of the lack of respect for you as a teacher 

which has developed among your students as a 

consequence of the above-mentioned occurrances." 

(Hereafter the above reasons are referred to 

as reasons 1, 2, 3, 4 and 5.) 

Yanzick requested a hearing before the Board of Trustees as 

provided in section 20-4-204(3), MCA. His request was denied. 

Litigation followed, culminating in an order from the Montana 

Supreme Court requiring the Board of Trustees to hold a 

hearing and reconsider their decision. The hearing was held 

August 9, 1978; the Board of Trustees affirmed their original 

decision not to renew Yanzick's contract. Yanzick then 

appealed to the County Superintendent. On August 24 and 25, 

1978, the County Superintendent of Schools held a hearing 

and extensive testimony was presented. The County Superintendent 

upheld the decision of the Board of Trustees not to renew 

the Yanzick contract. The pertinent portions of the findings 

of fact and conclusions of law of the County Superintendent 

are: 

"FINDINGS OF FACT: 

"7. That the reasons given by the Board of 

Trustees of School District No. 23 for nonrenewal of the teaching contract of Appellant 

for the school year 1977-78 and which were reaffirmed after reconsideration hearing on 
August 9, 1978 were as follows: (same five 

reasons as previously set forth in the letter 

to Yanzick dated March 24, 1977) . . . 

"8. That during the school year 1976-77 

Appellant was a seventh grade science and math 

teacher at the Polson Middle School District 

No. 23 and that his classes included approximately one hundred (100) students ranging in age 

from eleven (11) to fourteen (14) years and of 

an average age of twelve and one-half (12 1/2) 

years. 

"9. That on January 18, 1977, Appellant met with 

Dr. Lee Christensen, Superintendent of Schools 

of District No. 23, and Polson Middle School 

Principal Darryl Dupuis and was asked why he had 

moved Miss Sharon Scott into his house in the 

city of Polson and openly lived together after 

he had been previously admonished about public 

knowledge of this living arrangement; that 

Appellant admitted to Dr. Christensen and Darryl 

Dupuis that he and Miss Sharon Scott were living together without the benefit of marriage. 

"10. That at said meeting of January 18, 1977, 

Appellant further acknowledged that his students' 

knowledge of his living situation was having an 

adverse effect on his classroom teaching. 

"11. That subsequent to the above mentioned 

meeting of January 18, 1977, Appellant made a 

statement to one of his classes regarding the 

fact that complaints had been registered against 

him by certain people in the community about 

his living relationship with Miss Scott and 

that she had moved out of his house. 

"12. That Appellant has demonstrated a lack 

of fitness as a teacher in that his living 

arrangement with Miss Sharon Scott in this 

community had an adverse effect upon his 

performance as a teacher by reason that: 

"a. Numerous parental complaints had been 

registered against Appellant during the school 

year with the District No. 23 Administration 

which necessitated District Superintendent 

Christensen's and Middle School Principal 

Dupuis' counseling of Appellant on several 

occasions during the 1976-77 school year; 

that these parental complaints stemmed either 

directly or indirectly from Appellant's living situation with Miss Scott. 

"b. Appellant's living arrangement with Miss 

Scott had become a matter of public knowledge 

within the school community and had become a 

matter of discussion within his classroom thereby fostering a lack of respect for Appellant 

by his students. 
"c. Appellant's living arrangement with Miss 

Scott had a negative influence upon the formation of moral judgements by his students. 

"14. That Appellant, by having made a statement 

within the context of his classes on human reproduction regarding abortion and by having 

displayed human fetuses to his classes on human 

reproduction which were voluntarily furnished 

to him by a student whose father was chief laboratory technician at the local hospital, has not 

provided the School Board with an independent 

basis in either instance for a finding that 

Appellant was unfit to be a teacher. 

"15. That, though standing alone the above 

mentioned abortion statement and display of 

fetuses are insufficient grounds for dismissal, 

the fact that these matters had become sources 

of serious protest lodged by parents and had 

emerged as morality-oriented issues in the dismissal of Appellant is directly indicative of 

the fact that Appellant's living relationship 

with Miss Sharon Scott was having an adverse 

effect upon his performance as a teacher." 

Pursuant to section 20-4-204 (4) , Yanzick appealed to the 

Superintendent of Public Instruction (State Superintendent). 

The State Superintendent considered the record without 

taking other evidence. The State Superintendent found there 

was substantial evidence in the record to support the above 

quoted findings of facts 9, 10, 11 and 12, which in turn 

supported reasons 1, 4 and 5 of the Board of Trustees. The 

State Superintendent did not discuss reasons 2 and 3. 

The State Superintendent upheld the decision of the County 

Superintendent terminating Yanzick as a tenured teacher. 

Yanzick petitioned for review in the District Court 

under Sections 2-4-702 (Administrative Procedure Act) and 

20-3107(2) (Education Title, Superintendent of Public Instruction 

Controversy Appeal), MCA. In substance, the petition alleged 

that Yanzick was aggrieved by the order refusing to renew 

his contract, and alleged that Yanzick is entitled to relief 

in that his substantial rights have been prejudiced because 
the decision violates constitutional and statutory provisions, 

and clearly is erroneous in view of the reliable, probative 

and substantial evidence on the whole record. The petition 

and the response to the petition do not delineate any specific 

issues for consideration by the District Court. 

In its memorandum and order dated August 22, 1980, the 

~istrict Court reversed the State Superintendent's order, 

and remanded to the County Superintendent, with instructions 

to revise the findings and conclusions in accordance with 

the District Court opinion, and to order the Board of Trustees 

to reinstate Yanzick and to determine his lost wages. The 

District Court made an extensive review of the evidence and 

concluded that the finding that Yanzick and Scott were 

living together out of wedlock and the finding that this 

arrangement was a matter of public knowledge is clearly 

erroneous in view of the reliable, probative and substantial 

evidence. We find to the contrary. The District Court also 

did not find sufficient evidence to support a finding that 

Yanzick's alleged cohabitation and the students' knowledge 

of it had an adverse effect upon his performance as a 

teacher. We comment on this finding later. 

School District No. 23 and the County Superintendent 

appealed to this Court from the "final Order of the Court 

entered in this action on August 22, 1980, reversing the 

decision and order of the Superintendent of Public ~nstruction 

not to renew the contract of Tim Yanzick, for the school 

year 1977-1978." The Notice of Appeal does not delineate 

any issues for consideration by this Court. 

11. 

The State Superintendent contends that the Montana 

~dministrative Procedure Act (MAPA) is not applicable. As 
previously mentioned, the procedure followed in the appeal 

to the District Court was under MAPA. A consideration of 

statutory definitions in MAPA shows that it is applicable. 

In order for MAPA to apply, the County Superintendent 

and State Superintendent must come under the definition of 

"agency" as defined in MAPA. Section 2-4-102, MCA, defines 

"agency" by reference to section 2-3-102, MCA, which in 

pertinent part states: 

"(1) 'Agency' means any board, . . . authority, 

or officer of the state or local government 

authorized by law to make rules, determine 

contested cases, or enter into contracts except: 

(exceptions not here applicable)." 

It is clear from that definition that the term "agency" 

includes both the County Superintendent and the State Superintende 

Next we must determine if the present case comes within 

the definition of "contested case" under MAPA. Section 2-4- 

102, MCA, in part states: 

"(4) 'Contested case' means any proceeding 

before an agency in which a determination of 

legal rights, duties, or privileges of a 

party is required by law to be made after an 

opportunity for hearing . . ." 

We conclude that the present controversy is a contested case 

as defined in MAPA, making the MAPA code sections on Contested 

Cases (section 2-4-601 to 2-4-631, MCA) and Judicial Review 

of Contested Cases (section 2-4-701 to 2-4-711, MCA) applicable. 

The parties followed these procedures in the present case. 

We discuss issue (1) which is the standard of review 

to be applied by the County Superintendent, State Superintendent, 

District Court and this Court. As we proceed through the 

statutory sections, we will comment on issue (2), whether 

the County Superintendent, State Superintendent, and District 

Court, each acted within its authority. 
As far as teacher tenure is concerned and termination 

of employment, Mr. Yanzick meets the qualification of a 

tenured teacher as defined in section 20-4-203, MCA: 

"Whenever a teacher has been elected by the 

offer and acceptance of a contract for the 

fourth consecutive year of employment by a 

district in a position requiring teacher 

certification . . . the teacher shall be 

deemed to be reelected from year to year 

thereafter as a tenure teacher . . ." 

Section 20-4-204, MCA, contains the provisions regarding 

termination of tenured teachers' services. This includes 

provisions for notification of the teacher in writing by 

certified or registered mail, including a printed copy of 

this code section; opportunity for the tenured teacher to 

request a written statement declaring clearly and explicitly 

the specific reasons for termination; with a hearing granted 

upon request of the teacher before the Trustees for reconsideration of the termination action. As described in the facts 

previously outlined, the foregoing procedures were followed 

in the Yanzick case. The provision for appeal of the Trustees' 

determination to the County Superintendent is contained in 

section 20-4-204, MCA, which states in pertinent part: 

"(3) . . . If the trustees affirm their decision 

to terminate the teacher's employment, the tenure 

teacher may appeal their decision to the county 

superintendent who may.appoint a qualified 

attorney at law as legal advisor who shall 

assist the superintendent in preparing findings of fact and conclusions of law. 

"(4) Subsequently, either the teacher or the 

trustees may appeal to the superintendent of 

public instruction under the provision for 

the appeal of controversies in this title." 

The procedure is briefly described in section 20-3-210, 

MCA, which also describes the use of an attorney as a legal 

advisor, and states: 
" (1) . . . [TI he county superintendent shall 

hear and decide all matters of controversy 

arising . . . as a result of decisions of the 

trustees of a district in the county. When 

appeals are made under 20-4-204 relating to 

the termination of services of a tenure 

teacher or under 20-4-207 relating to the 

dismissal of a teacher under contract, the 

county superintendent may appoint a qualified 

attorney at law to act as a legal advisor 

who shall assist the superintendent in preparing findings of fact and conclusions of law. 

Subsequently, either the teacher or trustees 

may appeal to the superintendent of public 

instruction under the provisions for appeal 

of controversies in this title . . . 

" (2) The county superintendent shall hear 

the appeal and take testimony in order to 

determine the facts related to the controversy 

and may administer oaths to the witnesses that 

testify at the hearing. He shall prepare a 

written transcript of the hearing proceedings. 

The decision on the matter of controversy which 

is made by the county superintendent shall be 

based upon the facts established at such hearing. 

"(3) The decision of the county superintendent 

may be appealed to the superintendent of public 

instruction, . . ." 

This section requires the County Superintendent to hear and 

decide controversies of the Yanzick type and to make the 

decision based upon the facts established at the hearing. 

In effect, this requires a hearing de novo before the County 

Superintendent. The hearing provisions which apply to the 

County Superintendent are set forth in MAPA section 2-4-612 

which in pertinent part states: 

"(1) Opportunity shall be afforded all parties 

to respond and present evidence and argument 

on all issues involved. 

"(2) Except as otherwise provided by statute 

relating directly to an agency, agencies shall 

be bound by common law and statutory rules of 

evidence. Objections to evidentiary offers 

may be made and shall be noted in the record 

"(4) All testimony shall be given under oath 

or affirmation. 
" (5) A party shall have the right to 

conduct cross-examinations required for a 

full and true disclosure of facts, . . . 

"(7) The agency's experience, technical 

competence, and specialized knowledge may be 

utilized in the evaluation of evidence." 

MAPA also sets forth the form of findings of fact and conclusions 

of law, stating in section 2-4-623, MCA, as follows: 

"(1) A final decision or order adverse to a 

party in a contested case shall be in writing 

or stated in the record. A final decision 

shall include findings of fact and conclusions 

of law, separately stated. Findings of fact, 

if set forth in statutory language, shall be 

accompanied by concise and explicit statement 

of the underlying facts supporting the findings. 

"(2) Findings of fact shall be based exclusively 

on the evidence and on matters officially noticed. 

"(3) Each conclusion of law shall be supported 

by authority or by a reasoned opinion. . ." 

The foregoing statutes contain the procedure to be followed 

by the County Superintendent in the de novo hearing before 

her. The statutes do not contain a limitation on the decisionmaking power of the County Superintendent. We find that the 

County Superintendent followed the statutory procedure, and 

acted within the scope of her authority. 

So far as the State Superintendent is concerned, section 

20-3-107, MCA, sets forth these essential elements for the 

appeal of the controversy to the State Superintendent: 

"(1) The superintendent of public instruction shall decide matters of controversy when 

they are appealed from: 

"(a) A decision of a county superintendent 

rendered under the provisions of 20-3-210; 

"(2) The superintendent of public instruction 

shall make his decision on the basis of the 

transcript of the fact-finding hearing conducted 

by the county superintendent . . . and documents 
presented at the hearing. . . The decision of 

the superintendent . . . shall be final, subject 

to the proper legal remedies in the state courts. 

Such proceedings shall be commenced no later 

than 60 days after the date of the decision of 

the superintendent. . ." 

In this case the State Superintendent did make her decision 

on the basis of the transcript of the hearing before the 

County Superintendent. The MAPA provisions of section 2-4- 

623, MCA, requiring that the findings of fact be based 

exclusively on the evidence and that the conclusions of law 

be supported by authority, are applicable to the State 

Superintendent as well as the County Superintendent. The 

State Superintendent stated as follows: 

"Bearing in mind that the county superintendent is properly the judge of the credibility 

of the witnesses, I find substantial evidence 

in the record to support findings of fact 9, 

10, 11, and 12, which in turn support the 

reasons 1, 4, and 5 given by the board to 

justify appellant's termination." 

The State Superintendent then affirmed the decision of the 

County Superintendent upholding the termination of Yanzick 

as a tenured teacher. We hold that the procedure followed 

by the State Superintendent in her determination was correct 

under the applicable statutes. 

The District Court is subject to MAPA provisions in its 

judicial review of contested cases. The standard of review 

applicable to the District Court is set forth in section 2- 

4-704, MCA, in pertinent part as follows: 

"(1) The review shall be conducted by the 

court without a jury and shall be confined 

to the record. . . The court, upon request, 

shall hear oral argument and receive written 

briefs. (In this case, the matter was submitted upon briefs.) 

"(2) The court may not substitute its judgment 

for that of the agency as to the weight of the 

evidence on questions of fact. The court may 

affirm the decision of the agency or remand the 
case for further proceedings. The court may 

reverse or modify the decision if substantial 

rights of the appellant have been prejudiced 

because the administrative findings, . . . conclusions, . . . are: 

"(e) Clearly erroneous in view of the reliable, 

probative, and substantial evidence on the whole 

record; . . ." 

Under this section, the District Court may not substitute 

its judgment for that of the County Superintendent as to 

the weight of the evidence on questions of fact. Under this 

section, the District Court was given the right to reverse 

the decision if substantial rights of Yanzick were prejudiced 

because the administrative findings and conclusions were 

"clearly erroneous in view of the reliable, probative,and 

substantial evidence on the whole record." The District 

Court properly followed that procedure in reaching its 

conclusion in the present case. While we disagree with the 

conclusion of the District Court, we conclude that the 

District Court did act within the scope of its statutory 

authority. 

So far as this Court is concerned, the MAPA procedures 

are set forth in section 2-4-711, MCA, which in pertinent 

part reads: 

"An aggrieved party may obtain review of a 

final judgment of a district court under 

this part by appeal to the supreme court 

within 60 days after entry of judgment. Such 

appeal shall be taken in the manner provided 

by law for appeals from district courts in 

civil cases . . ." 

From the foregoing, it is apparent that the procedure in 

appealing to this Court is identical to that used in an 

appeal from any other district court decision. In this 

proceeding the District Court was not the trier of fact. We 

have here an appeal from a lower appellant tribunal which 
in turn based its conclusions on a review of the printed 

record, without the benefit of listening to and observing 

the demeanor, conduct and testimony of witnesses. We hold 

that this Court should not substitute its judgment for that 

of the County Superintendent as to the weight of the evidence 

on questions of fact and that this Court may reverse or 

modify the decision if substantial rights of the appellant 

have been prejudiced because the administrative findings and 

conclusions are clearly erroneous in view of the reliable, 

probative and substantial evidence on the whole record. 

As this review demonstrates, here we have had the 

following basic procedure: 

(1) An initial determination by the Board 

of Trustees that the Yanzick contract should 

not be renewed. 

(2) A rehearing at the request of Yanzick 

by the Board of Trustees which affirmed its 

prior decision. 

(3) An appeal to the County Superintendent 

which was a trial de novo with witnesses and 

record evidence. 

(4) An appeal to the State Superintendent 

based upon the record. 

(5) A further appeal to the District Court 

based upon the record. 

(6) Last an appeal to this Court again involving a review of the record. 

We suggest that the initial hearings followed by three 

separate and in part duplicating appeals does not appear to 

be judicial economy or an appropriate manner of disposing of 

a contested case under MAPA without delay. We suggest this 

is an appropriate area for legislative consideration. 

IV. 

The remaining issue is whether, based upon the transcript 

and record before the reviewing agency (State Superintendent) 

and the reviewing courts(the District Court and this Court.), 
the County Superintendent's decision was clearly erroneous. 

In considering that issue, we must consider the administrative 

determinations of the County Superintendent and the State 

Superintendent as well as the appellate decision of the 

District Court. 

The general power of the Trustees of a school district 

to hire and fire teachers is set forth in section 20-3-324, 

MCA, which in pertinent part states: 

". . . the trustees of each district shall have 

the power and it shall be their duty to perform 

the following duties or acts: 

"(1) employ or dismiss a teacher, principal, 

or other assistant upon the recommendation of 

the district superintendent, the high school 

principal, or other principal as the board may 

deem necessary, accepting or rejecting such 

recommendation as the trustees shall in their 

sole discretion determine, in accordance with 

the provisions of the school personnel part 

of this title." [Now ". . . in accordance 

with the provisions of Title 20, Chapter 4." 

Section 20-3-324, MCA, 1981.1 

This section shows that the power and duties of the Trustees 

include the employment and dismissal of teachers. That 

statute is consistent with the constitutional provisions 

regarding the control of schools being vested in each school 

district. Montana Constitution, Article X, Section 8, 

provides: 

"The supervision and control of schools in 

each school district shall be vested in a 

board of trustees to be elected as provided 

by law. " 

The legislature has indicated its desire to place local 

control of schools in the local school districts. In School 

District No. 12, Phillips County v. Hughes (1976), 170 Mont. 

267, 272-273, 552 P.2d 328, 331, this Court quoted the 

proceedings of the 1972 Montana Constitutional Convention in 

which the matter of local control was discussed by delegates 

who stated: 
"I. . . no matter what we say, perhaps, 

they'd still have that fear that the local 

school districts are going --- to lose some 

control --- and some power. And if you will 

note in my remarks when we get to nine, ten 

and eleven, you will note that we have eliminated the word, control in the new public board 

of education where it is in the old Constitution, and only use the word, supervise. By 

this amendment the intent is shown. I think. 

that this body does want local cont rol to 

remain with -- the local school districts and I - - 

heartily support it." 

". . . I feel, therefore, that we should give 

constitutional recognition and status to the 

local boards to -- first of all, to allay the 

fears which have been expressed, which I 

think are well founded concerning the preservation - of local autonomy . . . I 11 

In cases determined prior to the 1972 Constitution, this 

Court affirmed the wide discretion reposed in the Board of 

Trustees. In Kelsey v. School District No. 25 (1929), 84 

Mont. 453, 458, 276 P. 26, 26, this Court stated: 

"A wide discretion is necessarily reposed in 

the trustees who composed the board. They are 

elected by popular vote, and, presumably, are 

chosen by reason of their standing in the 

community, sound judgment, and their interest 

in the educational development of the young 

generation which is so soon to take the place 

of the old." 

In emphasizing that a teacher's work is a very sensitive 

area and that school authorities have the duty to screen 

teachers as to their fitness to maintain the integrity of 

schools, in Adler v. Board of Education (1952), 342 U.S. 

485, 493, 72 S.Ct. 380, 385, 96 L.Ed. 517, 524, the United 

States Supreme Court said: 

"A teacher works in a sensitive area in a 

schoolroom. There he shapes the attitude 

of young minds towards the society in which 

they live. In this, the state has a vital 

concern. It must preserve the integrity of 

the schools. That the school authorities 

have the right and the duty to screen the 

officials, teachers, and employees as to 

their fitness to maintain the integrity of 

the schools as a part of ordered society, 

cannot be doubted." 
While it is true that the trustees of a school district 

do have the power and duty to both employ a teacher and 

terminate a teacher under the appropriate circumstances, the 

rights of the teachers must also be kept constantly in 

mind. The tenure of a teacher is clearly both a valuable 

and a substantial right which cannot be taken away except 

for good cause. This Court stated in State ex rel. Saxtorph 

v. District Court, Fergus County (1954), 128 Mont. 353, 361, 

275 P.2d 209, 214, as follows: 

"The right of a school teacher to teach in 

a school, or school district, from year to 

year, after having taught in such school or 

school district for three consecutive years, 

is called tenure. A teacher's tenure is a 

substantial, valuable and beneficial right, 

which cannot be taken away except -- for good 

cause. (~mphzis supplied) . 

". . . This court said 'the purpose of enacting the Teacher Tenure Act . . . is not merely 

to insure teaching employment but it is also 

to insure to teachers who have held teaching 

positions for three or more consecutive years, 

security in the position, the grade or the 

status which they have thus attained. . . I II 

In this case, Yanzick's tenure is a substantial and valuable 

right which can be taken away by the Board of Trustees only 

for good cause. 

Section 20-4-204, MCA, sets forth procedural requirements 

which apply upon the termination of a tenured teacher, 

including the manner of giving notice, hearing, and appeal. 

The section does not set forth specific standards which a 

tenured teacher is required to meet, or particular grounds 

which the Trustees are required to find prior to the termination 

of a tenured teacher's services. 

Counsel for Yanzick contends that section 20-4-207, 

MCA, contains the standards which apply in the event of 

termination of the services of a tenured teacher. By its 
terms, that section applies to the situation where trustees 

seek to dismiss a teacher before the expiration of his 

employment contract, that is, during the course of a normal 

school year. The Trustees here did not attempt to dismiss 

Yanzick during the term of his employment contract. They 

chose not to renew his contract for a subsequent school 

year. We conclude that section 20-4-207, MCA, is not applicable 

to the Yanzick fact situation. That interpretation is 

consistent with section 20-3-210(1), which refers to appeals 

made under section 20-4-204, MCA, relating to the termination 

of services of a tenured teacher, and which also refers to 

section 20-4-207 relating to the dismissal of a teacher 

under contract. This interpretation also is consistent with 

section 20-4-203(1), which provides that trustees by majority 

vote may resolve to terminate the services of a tenured 

teacher in accordance with the provisions of 20-4-204. We 

hold that section 20-4-207, MCA, which sets forth the grounds 

upon which the trustees may dismiss a teacher before the 

expiration of his employment contract is not applicable to 

the termination of the services of a tenure teacher under 

the provisions of section 20-4-203 and 20-4-204, MCA. 

In view of our reversal of the District Court, it is 

necessary that we review the record in some detail. We have 

already indicated that the record must show good cause for 

the termination of a teacher's tenure. In addition, the 

conduct of the teacher, including a characterization that it 

is immoral, must be such as to directly affect the performance 

by the teacher of his duties as a teacher. As stated in 

Jerry v. Board of Education of City School District of 

Syracuse (1974), 35 N.Y. 2d 534, , 364 N.Y.S.2d 440, 

446, 324 N.E.2d 106, 111: 
"In our view what might otherwise be considered 

private conduct beyond the scope of licit concern 

of school officials ceases to be such in at least 

either of two circumstances -- if the conduct 

directly affects the performance of the professional responsibilities of the teacher, or if, 

without contribution on the part of school 

officials, the conduct has become the subject of 

such public notoriety as significantly and reasonably to impair the capability of the particular 

teacher to discharge the responsibilities of his 

position. " 

The District Court considered the California case of 

Morrison v. State Board of Education (1969), 1 Cal.3d 214, 

82 Gal-Rep. 175, 461 P.2d 375, and concluded that the 

criteria set forth in Morrison should be applied to the 

facts in the present case. The facts of the blorrison case 

and its holding are not applicable here. Morrison was 

accused of homosexual conduct which had taken place, over 

a period of one week, in total privacy between him and 

another teacher. Morrison's conduct did not come to light 

until the involved teacher advised the school authorities. 

Thereafter, the California board sought to revoke Morrison's 

life diploma to teach, thereby completely eliminating his 

ability to work in California as a teacher. There was no 

suggestion in the Morrison case that the conduct of the 

involved teacher in any way affected his performance as a 

teacher. Yanzick's conduct was not some form of private 

conduct unknown to the community, but as will subsequently 

appear, was conduct broadly known throughout the community 

and to the Board of Trustees, which the Board of Trustees 

found adversely affected Yanzick's performance as a teacher. 

In view of the factual difference, it is not appropriate to 

apply the Morrison criteria to the present case. 
We now review the record evidence to support reasons 1, 

4 and 5 of the Board of Trustees. In reason 1 the Trustees 

concluded that Yanzick has demonstrated a lack of fitness 

for teaching in statements made to his junior high student 

class to the effect that his "girlfriend" had to move out of 

his house because some people did not like his living arrangements 

In reason 4, the Trustees concluded that Yanzick had demonstrated 

a lack of moral values by cohabiting with a female teacher 

not his wife in Polson which had adversely affected his 

performance as a teacher. The District Court concluded that 

the finding that it was a matter of public knowledge that 

Yanzick and Scott were living together out of wedlock was 

clearly erroneous. The record indicates to the contrary. 

The record shows that Dr. Christensen, Superintendent of 

School District No. 23, met with Yanzick on a number of 

occasions in relation to the matters covered by reasons 1 

and 4. Dr. Christensen described a portion of one interview 

with Mr. Yanzick as follows: 

"Q. What further transpired at this meeting 

on January 18th? 

"A. At that point, I stated to him, 'I distinctly recall talking to you last year about 

comments in the community relative to your 

shacking up with Miss Scott, the indicator being 

your coming to work across the bridge every 

morning, sometimes together.' 

"And I asked him -- and this is verbatim -- 

'Why in heaven's name have you now moved her into 

your house and openly decided to live together? 

What possessed you to enter into such a situation.' 

"Q. How did Mr. Yanzick respond to that question? 

"A. Mr. Yanzick stated that, 'I decided to do 

this because I was recently divorced. I didn't 

want to make the same mistake again.' 

"He rambled on for about 20 minutes, pretty much 

uninterrupted. At times, he was emotional about 

the situation. He stated that the relationship 
with Miss Scott had started rocky, but had now 

developed into a beautiful relationship, 'one that 

means a great deal.' I pointed out to him that 

it's obvious with the students in his classes 

possessing full knowledge of this, talking, joking, et cetera, about it, that it was having a 

detrimental, adverse effect on his classroom 

teaching. He stated that 'This appears to be 

the case, and this worries me. I like my job. 

I feel that I'm a good teacher.' 

"Q. Dr. Christensen, let me interrupt once 

again, there. Do you indicate those as being 

auditory responses to you, rather than your 

conclusion from any conclusion you might have 

drawn from his action or silence? 

"A. These were his statements. 'This appears 

to be the case. This worries me, because I 

like my job, and I feel I am a good teacher.' 

He asked what he should do. He concluded -- 

he formed his own conclusion. He said he felt 

that he should have Miss Scott move out." 

It is important to note that Mr. Yanzick agreed that his 

conduct was having a "detrimental, adverse effect" on his 

classroom teaching. While Mr. Yanzick's own testimony was 

enlightening, it did not constitute a denial of the Superintendent's testimony. On his own direct examination, Mr. 

Yanzick in part testified: 

"A. . . . He did ask me if we were living together, and I said, 'Yes, you might say that.' 

But I never did go into great detail to explain 

that living arrangement. 

"Q. What did you mean when you said, 'Yes, you 

might say that1? 

"A. Well, when you refer to the term, most 

people, I think -- or, when Dr. Christensen 

asked the question, I'm sure that he meant 

were we occupying that house as husband and 

wife in full terms of the sense, probably, and 

I did not mean that by -- my concept of living 

together does not necessarily include all of 

those aspects. 

"I think you can be living with someone without 

sharing the bed with them, necessarily, all the 

time. I won't deny that I went with Miss Scott. 

I won't deny our relationship. But I was not 

technically living in that house.'' 

With regard to the discussion before his junior high class 

of his girlfriend moving out, Superintendent Christensen 
further testified: 

"Q. Did anything further concerning Mr. Yanzick 

then occur relative to complaints of parents or 

your dealings with him over the subjects you 

had just discussed with him? 

"A. Yes. On January 26th of 1977, I received 

another phone call, again from Mrs. Herreid. 

She was concerned because he had made a statement in class to the effect that, 'My girl has 

moved out because people didn't approve of our 

arrangement. ' 

"I went to Mr. Dupuis's office this time, and 

in Mr. Dupuis's presence once again asked him 

if he had made that statement. He said yes, 

he had, that it was to clear the air. . ." 

It is important to note that Superintendent Christensen 

believed the living arrangements and statements of Mr. 

Yanzick should be considered only to the extent that they 

affected his classroom performance. On this aspect, Superintendent Christensen testified: 

"A. I recommended to the Board of Trustees at 

that time that it was my opinion that Mr. Yanzick 

had repeatedly shown such a lack of judgment in 

acts as well as statements made to his classes to 

make him unfit for classroom duty in dealings with 

young, immature teenagers, who, I might add, are 

at an impressionable stage of development. 

"Q. With respect to any moral issues or questions 

involved, did you venture an opinion to the Board 

of Trustees with respect to such issue? 

"A. Yes, I did. 

"Q. And what was that opinion communicated to 

the Board? 

"A. The concern of the community and of the Board 

about his living arrangements. The question was 

raised and I interrupted and pointed out to the 

Board that his living arrangements were really 

probably of no concern of ours, unless these living arrangements became an issue in his classroom 

and were having a demonstrated adverse effect 

on his classroom performance. 

"The Board members, by and large, agreed with 

that, and said yeah, that was true, and that was 

pretty much the end of the discussion regarding 

his living arrangements as such." 

The County Superintendent was in the position of the 
trier of fact, and so was able to hear and evaluate the 

testimony of the various witnesses. Some of the evidence 

definitely is conflicting. Under such circumstances, the 

conclusions of the trier of fact deserve particular weight. 

The County Superintendent and the State Superintendent both 

found that Trustees' reasons 1, 4 and 5 were supported by the 

evidence. Applying the standard of section 2-4-704, MCA, 

we find reasons 1, 4 and 5 are not clearly erroneous in view 

of the reliable, probative and substantial evidence on the 

whole record. 

The County Superintendent's finding of fact No. 15 

stated that, although the abortion discussion (reason 2) 

and the display of fetuses (reason 3) were not in themselves 

sufficient grounds for dismissal, they, together with the 

resultant controversy, were indicative of the adverse impact 

that Yanzick's living arrangement with Miss Scott was having 

upon his teaching. While the finding is not totally clear, 

it does afford a factual basis for this Court to consider 

reasons 2 and 3. 

In reason 2, the Trustees concluded that Yanzick had 

demonstrated a lack of fitness for teaching because of 

introduction of the subject of abortion in the classroom 

when he inquired of the boys in the class "How many of you 

boys would have your girlfriend get an abortion if she were 

pregnant?" The record evidence in support of reason 2 

includes the following testimony by Superintendent Christensen 

as to statements made to him by Mr. Yanzick in the presence 

of the principal: 

"Q. Now, could you please relate to the Superintendent what took place at that conference, 

what was said to Mr. Yanzick, and what his replies 

were? First of all, you kept -- did you keep 

the notes that you say you customarily keep regarding such? 
"A. I was jotting down notes as we were talking, 

yes. Mr. Yanzick admitted and stated, 'Yes, I 

did say, "How many of you boys would urge your 

girl to get an abortion if you got her in trouble?" 

"Q. How was that done, Doctor, so far as you 

can recollect? 

"A. I related the quote to him, 'How many of you 

boys would have your girl get an abortion if you 

got her in trouble?' He said, 'Yes, I did say 

that. ' 

"Q. In other words, he verbalized it? 

"A. Yes. Well, he did not repeat it, but he 

did say, 'I did say that.' 

"Q. His response, then, was verbal and not 

by a nod of the head or other indication? 

"A. That is correct." 

Superintendent Christensen concluded that this was an improper 

approach to be taken with 11 to 14 year olds. Dr. Campbell, 

a member of the Board of Trustees, and a pediatrician, was 

asked whether or not the abortion question demonstrated a 

lack of fitness as concluded by the Board of Trustees and 

stated: 

"Q. (By Mr. Heinz) Do you continue to support 

that assertion as a demonstration of lack of 

fitness for a teacher to continue in the district's employ? 

"A. I would. I would think it so inappropriate 

that I had a hard time believing it of Mr. Yanzick." 

After questioning to show his qualification as an expert to 

testify concerning growth and development of children, 

including physical and sexual development of children of the 

ages of 11 to 14, the doctor testified that the particular 

question would be very inappropriate for the age group 11 to 

14. 

In reason 3 the Trustees concluded that Yanzick had 

demonstrated a lack of fitness for employment in a teaching 

position by his lack of good judgment in the use of human 
fetuses in the classroom. After receiving a complaint, with 

regard to the use of fetuses in the classroom, Christensen 

testified as follows: 

"At seven fifteen, the morning of January 28th, 

I went to Mr. Yanzick's room. I walked around 

the room a couple of times; finally discovered 

a white plastic bucket sitting at the front of 

the room. I reached into the bucket and removed 

the contents. It contained three bottles and 

three plastic sacks. One of the sacks contained an identifiable human fetus of five or six 

inches in length. I placed the items back in 

the plastic bucket and took it to my office, 

removed it from the school building . . . 

"Q. What, if anything, then transpired between 

Mr. Yanzick and yourself concerning the plastic 

bucket? 

"A. I asked Mr. Yanzick where the fetuses had 

come from. He said that one of his students, . . ., had asked to bring them. He had said 

that -- Mr. Yanzick had said, 'Okay. Bring 

them Wednesday morning.' That he had looked 

at them, and that he had showed them to his 

class on Thursday. . ." 

In his testimony, Superintendent Christensen set forth 

the opinions on his own part which he had related to the 

Board of Trustees prior to the Trustees' decision with 

regard to Mr. Yanzick. He testified to these opinions as 

follows: 

"A. Well, I just feel very strongly that 11 

and 12 and 13 year old kids are at a really 

highly impressionable stage of development. 

Their maturity is not such that they can handle 

shocking things like the public display of a 

human body in a plastic bag. They cannot handle 

statements to the effect, 'How many of you boys 

would have your girlfriend get an abortion if 

you got her pregnant?' 

"I guess if Mr. Yanzick had been dealing with 

17, 18 year old seniors, I probably would have 

viewed some of the things he was saying as 

certainly not being proper, but not having the 

devastating effect that I felt they would have 

at that age level." 
The testimony of Superintendent Christensen, including his 

conclusions, is confirmed by the testimony and conclusions 

of the other board members who testified. In addition, it 

is stipulated between the parties that all the balance of 

the Board of Trustees would have testified in the same 

manner had they been called as witnesses. 

Under section 2-4-704, MCA, this Court may reverse or 

modify the decision only if substantial rights of Mr. Yanzick 

have been prejudiced because the administrative findings or 

conclusions are clearly erroneous in view of the reliable, 

probative and substantial evidence on the whole record. 

After a careful review of the whole record, we do not find 

that the administrative findings are clearly erroneous. We 

find that the County Superindent's findings of fact 7 to 15, 

inclusive, are supported by reliable, probative and substantial 

evidence. As a result, we further conclude that the record 

is sufficient to support the administrative conclusion that 

Mr. Yanzick demonstrated a lack of fitness as a teacher, 

and to establish good cause for the decision by the Board of 

Trustees not to renew his contract. 

We reverse the District Court. We reinstate the decisions 

of the State Superintendent and the County Superintendent. 

We Concur: 

Cxef Justice f 
Justices 

Mr. Justice Shea dissents and will file a written dissent 

later. 
Mr. Justice Frank B. Morrison, Jr., dissenting: 

I respectfully dissent from the majority opinion. 

The majority opinion does not adequately present the 

record. The question before this Court is whether there was 

substantial credible evidence to support a finding that 

Yanzick was unfit to teach. Yanzick was a tenured teached 

and in the absence of evidence demonstrating his unfitness 

termination was impermissible. 

The Board of Trustees gave its reasons for non-renewal 

by letter dated March 24, 1977: 

"1. The Board of Trustees believe that you 

have demonstrated a lack of fitness for teaching in the position in which you have been 

employed and such a lack of fitness as indicated in all statements made to your class of 

Junior High School students between the ages 

of 11 and 14 years, with the effect that your 

'girlfriend' had to move out of your home because some people did not like your living 

arrangements, which statements were made under 

circumstances where it was common knowledge 

to your students and some of their parents 

that you and Miss Sharon Scott, a physical 

education teacher in the Polson School 

district, were living together at that time 

in your home in Polson, Montana. 

"2. The Board of Trustees believe you have 

further demonstrated a lack of fitness for the 

teaching position in which you have been employed by reason of your introduction of the 

subject of abortion in your classroom, wherein you inquired of the boys in your class, 

ages 11 to 14, 'How many of you boys would 

have your girlfriend get an abortion if she 

were pregnant?' 

"3. The Board further feels that you have 

also demonstrated a lack of fitness for employment in the teaching position by a serious lack 

of good judgment in permitting the use in your 

classroom of human fetuses brought by one of 

your students who had obtained them without 

authorization from St. Joseph's Hospital Laboratory without the knowledge of the administration of that hospital or of the owner of the 

specimens. 
"4. The Board of Trustees further believe that 

you have demonstrated a lack of moral values 

by openly and notoriously cohabitating with a 

female teacher, not your wife, within the relatively small community of Polson, Montana, 

which fact, and the knowledge of which fact 

among your students, has adversely affected 

your performance as a teacher. 

"5. The Board is of the opinion that you 

lack fitness for the classroom teaching position in which you have been employed because 

of the lack of respect for you as a teacher 

which has developed among your students as a 

consequence of the above-mentioned occurrances." 

Yanzick appealed the adverse recommendation by the 

school board, to the County Superintendent of Schools. The 

County Superintendent held a hearing. She concluded that 

Yanzick had - not demonstrated a lack of fitness by having 

made the statement regarding abortion nor had lack of fitness 

been demonstrated by showing that Yanzick displayed human 

fetuses to his classes on human reproduction. However, the 

County Superintendent did uphold the school board's determination 

that Yanzick was unfit to teach because of his relationship 

with a teacher to whom he was not married. 

Yanzick then appealed to the Superintendent of Public 

Instruction. She concluded that there was substantial 

evidence to support the County Superintendent's reasons for 

termination based upon Yanzick's living arrangement. The 

issues of abortion and fetus demonstration were not discussed. 

The decision of the State Superintendent was appealed 

to the District Court. Judge Gordon Bennett reversed the 

State Superintendent's decision and remanded the matter to 

the County Superintendent for revision of her findings and 

conclusions. Judge Bennett also ordered that Yanzick be 

reinstated and paid lost wages. 

Yanzick was a teacher of seventh grade science and 

math at Polson Middle School and had taught there for seven 
years. Some time during the 1975-76 school year, Yanzick 

and a young woman began dating. At that time the young 

woman was living on the west shore of Flathead Lake and 

Yanzick was living in his camper. In September of 1976, she 

moved into Yanzick's house as a rent-paying tenant. Yanzick 

remained in his camper which was parked within 15 feet of 

the house. The problem of the living arrangement first came 

to the attention of the School Superintendent, Dr. Christensen, 

on January 18, 1977, when he received a call from Mrs. 

Herreid, a parent, complaining about Yanzick and the young 

woman's living relationship. She stated that she had heard 

the school children talking about their living arrangement. 

That same day, Dr. Christensen called a meeting with Yanzick 

and Mr. Dupuis, the school principal. They discussed the 

living arrangement between Yanzick and the young woman. A 

discussion ensued which led the school officials to believe 

that the two were actually living together. Yanzick was 

concerned about students talking about his living situation 

and decided to have the young woman move out of the house, 

which she did. On January 26, Mrs. Herreid called Dr. 

Christensen again complaining that her son stated that 

Yanzick told the class that his girlfriend moved out because 

people objected to their living arrangement. On February 2, 

she called again complaining that Yanzick told her son's 

class that "Nobody is going to take cheap shots at me. I can 

sleep and eat wherever I please." Yanzick admitted making 

the statement to his class about his girlfriend moving 

out because of objections voiced by others, but denied 

making the other statement. There was no corroboration for 

Mrs. Herreid's testimony. Yanzick did respond to a 

student's question about his personal relationship by telling 
the class that his personal life was not a subject for 

classroom discussion. On March 10, 1977, another parent had 

an informal discussion with Dr. Christensen, complaining 

that Yanzick's relationship with the young woman was a bad 

influence on his daughter, who now felt that living with a 

man out of wedlock was an acceptable way of life. 

At the hearing before the County Superintendent only 

one other parent testified on behalf of the school board. 

That person testified that his daughter told him that Yanzick 

said the subject of his personal life was nobody else's 

business. The school board did not have any students testify. 

In making findings of fact, the District Court said: 

"The finding that the petitioner and Miss Scott 

were living together out of wedlock and that 

this arrangement was a matter of public knowledge is clearly erroneous in view of the 

reliable, probative and substantial evidence. 

The evidence to the contrary is overwhelming. 

Mr. Yanzick testified that he never lived with 

Miss Scott before they were married (tr. 230). 

Miss Scott also so testified (tr. 388). Four 

rent checks paid by Miss Scott to the petitioner for the months she lived in his house were 

admitted into evidence (petitioner's exhibit 

E). Three witnesses, Jim Sturm, Clay Herrin 

and Dennis Day testified that they were friends 

of the petitioner's, spent time with him and 

never observed him and Miss Scott cohabitating 

(tr. 173, 174, 346, 380). Not one single witness testified that he knew that the petitioner and Miss Scott were in fact living together. 

Not a single parent who testified had any idea 

as to the source of their information, or their 

childrens' information, about the living arrangement or its basis in fact (tr. 117, 128, 134, 

187, 188). There is no evidence that the petitioner ever told his classes that he was living 

with Miss Scott. The evidence on the record 

compels the conclusion that the petitioner and 

Miss Scott did not live together during the 

1976-77 school year. The 'public knowledge 

within the school community' was nothing but 

rumor. There is simply no basis in fact on 

the record to reach any other conclusion. It 

is evident that the petitioner misled the 

school officials at the January 18, 1977, meeting into believing that he was cohabiting with 

Miss Scott (when asked if they were living together, he replied, 'You might say so.') (tr. 

232), but we certainly cannot attribute that 
meeting to the spread of rumors in the town. 

No one can deny that small towns usually make 

excellent breeding grounds for rumors. The 

town of Polson is evidently no exception. A 

year before this controversy erupted Dr. 

Christensen and Mr. Funk, another board member, observed the petitioner and Miss Scott 

crossing the Polson bridge together a number 

of times early in the morning (Miss Scott lived 

on the west shore at that time and crossed the 

bridge to get into town). Dr. Christensen warned him about being more discrete with his relationship with Miss Scott, although he did not 

inquire as to the status of their relationship 

(tr. 50, 52). This bridge crossing incident 

was also discussed at the January 18th meeting 

(a year later), as causing talk in the community 

(tr. 60). The bridge crossing issue was clarified, without conflicting evidence, by Miss 

Scott: (The petitioner drove Miss Scott to 

school three times when she had car trouble) 

(tr. 400, 401). Thus, based on the evidence 

in the record, the 'common knowledge' of the 

community was only rumor with absolutely no 

proven basis and fact. . ." 

There is some evidence in the record to support a 

finding that Yanzick and Miss Scott cohabitated out of 

wedlock. However, the only basis is the admission made by 

Mr. Yanzick. It is not entirely clear from Yanzick's testimony 

whether he was being facetious or whether they actually 

cohabitated in the sense charged by the school board. 

Cohabitation out of wedlock does not render one an 

unfit teacher. The problem with this case is that there is 

no "substantial credible evidence" to show that Yanzick's 

private life had an adverse effect upon his teaching. Any 

such finding by the County Superintendent was necessarily 

based upon hearsay testimony. The hearing had to be conducted 

pursuant to the statutory rules of evidence, sections 20-3- 

210 (2), 2-4-612 (2), MCA. Hearsay testimony could not provide 

the basis for a finding that Yanzick's private living arrangements 

adversely affected his teaching. 

In fact, the uncontradicted testimony is to the contrary. 

The school district could not offer any proof to show diminished 
performance on the part of Yanzick. The school superintendent 

and principal both felt that he was an average or better 

teacher. Mr. Dupuis, his immediate supervisor, recommended 

his being retained as late of March 1, 1977. Ralph Campbell, 

a board member, never received any complaints about Yanzick 

and testified that he was a very skilled teacher. 

The law governing the school board in this matter was 

stated by the Montana Supreme Court in Board of Trustees of 

School District No. 9, Glacier County v. The Superintendent 

of Public Instruction (1977), 171 Mont. 323, 327, wherein 

the Court said: 

"'While school boards are not bound to strict 

conformity with court rules and practices, 

they must, nevertheless, observe the elementary and fundamental principles of judicial 

inquiry. And although a degree of informality may attend the administrative proceedings, -- it must appear -- that the dismissal is 

based upon evidence supporting the specific 

charge or charges against the teacher and 

L--- 

-nother evidence. * * *'" 

Such evidence before the school board was lacking. 

Furthermore, the proceedings before the County Superintendent 

were not informal and were bound by the statutory rules of 

evidence, as previously indicated. 

The record in this case fails to reveal a single witness 

with first hand knowledge which would substantiate a finding 

that Yanzick was unfit to teach. While there may have been 

evidence he was cohabitating with Miss Scott, this, in and 

of itself, would not provide a sufficient basis for his 

termination. 

I believe that school boards should be afforded a great 

deal of latitude in governing local school districts. 
However, in my opinion, the Court is countenancing a "witch 

hunt" in this case. The Court is condoning a legal determination based upon rumor and hearsay. In doing so, the 

security of tenure has been dealt a serious blow. The 

precedential effect will necessarily diminish academic 

freedom in Montana. 

For the foregoing reasons, 1x;egister a vigorous dissent.