### No. 80-394 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

TIM YANZICK, Petitioner and Respondent,

SCHOOL DISTRICTNO. 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,Montani 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



### ClerkMr. JusticeFred J. Weber delivered the Opinion of the Court

# . This 

### is an appeal from the judgment of the District Court of the FirstJudicial District, Lewis and Clark County, dated August 22, 1980, under theAdministrative Procedure Act. The DistrictCourt found forTim Yanzick, a tenured school teacher, reversing the decision of the StateSuperintendent of Public Instruction. The Superintendent of Public Instruction had affirmed the decision of theLake County Superintendent of Schools, who had affirmed the determination by the Board of Trustees of School District No. 23 not torenew Yanzick's contract. Wereverse the DistrictCourt and reinstatethe decisions of the StateSuperintendent and theCounty Superintendent. The issueswhich 

### we find tobe determinative are: (1) What 

### is the standard of review which 

### is tobe applied by the County Superintendent, the StateSuperintendent, the District Court and this Court? (2) Did the County Superintendent, StateSuperintendent, and DistrictCourt each actwithin 

### 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 arethe pertinent factsdisclosed by the record before the County Superintendent: TimYanzick 

### was a tenured teacher of seventh grade science and math atPolson Middle School inLake County, Montana. He had taught there for seven years. In the fall of 1976 problems arosewith regard toYanzick'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 DistrictNo. 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 schoolyear 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 inwhich you have been employed and such a lack of fitness as indicated in all statementsmade to your class of Junior High School studentsbetween the ages of 11and 14years,with the effect that your

'girlfriend'had to move out of your home because somepeople did not like your living arrangements, which statementswere made under circumstanceswhere itwas 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 furtherdemonstrated a lack of fitness for the teaching position inwhich 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 thatyou 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 yourclassroom of human fetuses brought by one of your studentswho 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 thatyou lack fitnessfor the classroom teaching position inwhich 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. Hisrequest was denied. Litigation followed, culminating inan order from the Montana Supreme Court requiring the Board of Trustees tohold 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 tothe 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 torenew theYanzick contract. The pertinentportions 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 DistrictNo. 23 for nonrenewal of the teaching contract of Appellant for the school year 1977-78 and which 

### werereaffirmed after reconsideration hearing on

### August 9, 1978were as follows: (samefive 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 scienceand math teacher at the PolsonMiddle 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 (121/2) years. "9. That on January 18, 1977,Appellantmet with Dr. Lee Christensen, Superintendentof Schools of DistrictNo. 23, and PolsonMiddle 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' knowledgeof his living situationwas having an adverse effect on his classroom teaching. "11. That subsequent to the abovementioned 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 certainpeople in the community about his living relationship with Miss Scott and that she had moved out of his house. "12. ThatAppellant 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 DistrictNo. 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 situationwith Miss Scott. "b. Appellant's living arrangementwith Miss Scott had become amatter of public knowledge within the school community and had become a matter of discussionwithin his classroom thereby fostering a lack of respect forAppellant by his students."c. Appellant's living arrangement with Miss Scotthad 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 tohis classes on human reproduction which were voluntarily furnished tohim by a student whose fatherwas chief laboratory technician atthe local hospital, has not provided the School Board with an independent basis ineither instance for a finding that Appellant was unfit tobe a teacher. "15. That, though standing alone the above mentioned abortion statement and display of fetuses areinsufficient grounds for dismissal, the fact that thesematters had become sources of seriousprotest lodged by parents and had emerged 

### as morality-oriented issues inthe dismissal of Appellant 

### is directly indicative of the factthatAppellant's living relationship with MissSharon Scott

### was having an adverse effectupon his performance as a teacher." Pursuant to section 20-4-204 

### (4)

## , Yanzick appealed tothe Superintendent of Public Instruction (StateSuperintendent). The StateSuperintendent 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 inturn supported reasons 1, 4 and 

### 5 of the Board of Trustees. The StateSuperintendent did not discuss reasons 2 and 3. The StateSuperintendent 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 (AdministrativeProcedure Act) and 20-3107(2) (Education Title, Superintendent of Public Instruction Controversy Appeal), MCA. In substance, thepetition alleged thatYanzick was aggrieved by the order refusing torenew his contract, and alleged thatYanzick 

### is entitled torelief inthat 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 reinstateYanzick and to determine his lostwages. The District Court made an extensive review of the evidence and concluded that the finding that Yanzick and Scottwere living together out of wedlock and the finding that this arrangementwas 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 ithad an adverse effect upon his performance as a teacher. We comment on this finding later. School DistrictNo. 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 considerationby this Court. 11. 

### The State Superintendent contends that the Montana ~dministrative Procedure Act (MAPA)is not applicable. Aspreviously mentioned, the procedure followed in the appeal tothe District Court was under MAPA. A consideration of statutory definitions inMAPA shows that 

### it 

### is applicable. In order forMAPA toapply, the County Superintendent and StateSuperintendent must come under the definition of "agency" asdefined inMAPA. 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 stateor local government authorized by law tomake 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, inpart states: "(4) 'Contested case' means any proceeding before an agency inwhich a determination of legal rights, duties, or privileges of a party 

### isrequired by law tobe made after an opportunity forhearing

# . . ."

We conclude that the present controversy 

### is a contested case

as defined inMAPA, making theMAPA code sections on Contested Cases (section2-4-601 to 2-4-631, MCA) and Judicial Review of Contested Cases (section 2-4-701 to 2-4-711, MCA) applicable. The parties followed theseprocedures in thepresent case.

Wediscuss issue (1)which is the standard of review tobe applied by the County Superintendent, State Superintendent, DistrictCourt and this Court. As

### we proceed through the statutory sections, we willcomment on issue (2), whether the County Superintendent, State Superintendent, and District Court, each acted within 

### its authority.As faras 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 districtin

### a position requiring teacher certification

# . .

# . the teacher shallbe deemed tobe reelected from year toyear 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 inwriting by certifiedor 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 inthe facts previously outlined, the foregoing procedures 

### were followed inthe Yanzick case. The provision for appeal of the Trustees' determination tothe County Superintendent 

### is contained in section 20-4-204, MCA, which states inpertinent part: "(3)

# . . . If the trustees affirm their decision toterminate the teacher's employment, the tenure teacher may appeal their decision to the county superintendent who may.appoint a qualified attorney atlaw aslegal advisor who shall assistthe superintendent inpreparing findings of fact and conclusions of law. "(4) Subsequently, either the teacher or the trustees may appeal to the superintendent of public instructionunder the provision for the appeal of controversies inthis title." The procedure isbriefly described in section 20-3-210, MCA, which also describes the use of an attorney 

### as a legal advisor, and states:

### " (1) 

# . . . [TIhe 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 superintendentmay appoint a qualified attorney at law to act as a legal advisor who shall assist the superintendentin 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 controversywhich ismade 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 Superintendentare 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 otherwiseprovided 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 knowledgemay 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 onmatters 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 decidematters 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 shallmake his decision on the basis of the transcript of the fact-finding hearing conducted by the county superintendent 

# .

# . . and documentspresented atthe hearing. 

## . 

# . The decision of the superintendent

# . . . shall be final, subject totheproper legal remedies inthe statecourts. Such proceedings shallbe commenced no later than 60 days after the date of the decision of the superintendent. 

# .."

In this case the State Superintendent didmake 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 factbe based exclusively on the evidence and that the conclusions of law be supported by authority, are applicable to the State Superintendent as

### wellas the County Superintendent. The State Superintendent stated as follows: "Bearing inmind that the county superintendent 

### isproperly the judge of the credibility of thewitnesses, I find substantial evidence inthe record to support findings of fact 9, 10, 

### 11, and 12, which inturn support the reasons 

### 1, 4, and 5 given by the board to justify appellant's termination." The StateSuperintendent then affirmed the decision of the County Superintendent upholding the termination of Yanzick

asa tenured teacher. Wehold that the procedure followed by the State Superintendent inher determination was correct under the applicable statutes. The DistrictCourt 

### is subject toMAPA provisions in

### its judicial review of contested cases. The standard of review applicable to the DistrictCourt is setforth in section 2- 4-704, MCA, inpertinentpart as follows: 

### "(1) The review shallbe conducted by the courtwithout a jury and shallbe confined tothe record. 

# .. The court, upon request, shall hear oral argument and receive written briefs. (Inthiscase, thematter 

### was submitted upon briefs.) "(2) The courtmay not substitute itsjudgment for that of the agency as to the weight of the evidence on questions of fact. The courtmay affirmthe decision of the agency or remand thecase for further proceedings. The courtmay reverse ormodify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, 

# .

# . . conclusions, 

# . .

# . are:

"(e) Clearly erroneous inview of the reliable, probative, and substantial evidence on thewhole record; 

# . .." Under this section, the District Court may not substitute 

### itsjudgment for that of the County Superintendent as to theweight of the evidence on questions of fact. Under this section, the DistrictCourt was given the right toreverse the decision if substantial rights of Yanzick were prejudiced because the administrative findings and conclusions were "clearly erroneous inview of the reliable, probative,and substantial evidence on the whole record." The District Court properly followed thatprocedure inreaching 

### its conclusion inthe present case. While we disagreewith the conclusion of the DistrictCourt, 

### we conclude that the DistrictCourt did actwithin the scope of 

### its statutory authority. So faras this Court isconcerned, the MAPA procedures

are setforth in section 2-4-711, MCA, which inpertinent part reads: "An aggrieved party may obtain review of a finaljudgment of a districtcourt under thispartby appeal tothe supreme court within 60 days after entry of judgment. Such appeal shallbe taken inthemanner provided by law for appeals from districtcourts in civil cases 

# .

# .."

From the foregoing, 

### it is apparent that the procedure in appealing tothis Court is identical tothat used inan appeal from any other districtcourt decision. In this proceeding the District Court 

### was not the trier of fact. We have here an appeal from a lower appellant tribunal whichinturn based 

### its conclusions on a review of theprinted record, without the benefit of listening toand observing the demeanor, conduct and testimony of witnesses. We hold that this Court should not substitute

### itsjudgment for that of the County Superintendent astotheweight of the evidence

on questions of factand that this Court may reverse or modify the decision if substantialrights of the appellant have been prejudiced because the administrative findings and conclusions areclearly erroneous inview of the reliable, probative and substantial evidence on thewhole record. As this review demonstrates, here

### wehave had the following basic procedure: (1) An initialdeterminationby the Board of Trustees that the Yanzick contract should not be renewed. (2) A rehearing atthe request of Yanzick by the Board of Trustees which affirmed 

### its prior decision. (3) An appeal tothe County Superintendent which was a trial de novo with witnesses and record evidence.



### (4) An appeal to the StateSuperintendent based upon the record. (5) A further appeal tothe DistrictCourt based upon the record. (6) Last an appeal to this Court again involving a review of the record. We suggest that the initialhearings followed by three separate and inpart 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 legislativeconsideration. 

### IV. The remaining issue iswhether, based upon the transcript and record before the reviewing agency (StateSuperintendent) and the reviewing courts(theDistrictCourt and thisCourt.),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 aswell as the appellate decision of the District Court. The general power of the Trustees of a school district tohire and fireteachers is setforth in section 20-3-324, MCA, which inpertinent part states: 

# ".

. . the trustees of each district shall have the power and 

### it shallbe their duty toperform the following duties or acts: "(1) employ or dismiss a teacher, principal, or other assistantupon 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, inaccordance with theprovisions of the school personnel part of this title." [Now

# ".

.

# . inaccordance 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 consistentwith the constitutionalprovisions 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 shallbe vested ina board of trustees tobe elected asprovided by law.

### " The legislature has indicated 

### its desire toplace local control of schools inthe local school districts. In School DistrictNo. 12, Phillips County v. Hughes (1976), 170 Mont. 267, 272-273, 552 P.2d 328, 331, this Court quoted the proceedings of the 1972Montana Constitutional Convention in which thematter of local control 

### was discussed by delegates who stated:"I. 

# .

# . no matter what 

### we say, perhaps, they'd 

### stillhave that fear that the local school districtsaregoing tolose some 

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

### will 

### --- note inmy remarks when 

### we get tonine, ten and eleven, you 

### willnote thatwe have eliminated theword, control inthe 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 districtsand I

- - heartily support it." 

# ".

. . I feel, therefore, that

### we should give constitutional recognition and status to the localboards to

## -- firstof all, toallay the fearswhich have been expressed, which I think are

### wellfounded concerning the preservation of local autonomy 

# . .

# .I 11 

### - In cases determined prior tothe 1972 Constitution, this Court affirmed thewide discretion reposed inthe Board of Trustees. In Kelsey v. School DistrictNo. 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 electedby popular vote, and, presumably, are chosen by reason of their standing inthe community, sound judgment, and their interest inthe educational development of the young generation which is so soon totake 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 totheir fitness tomaintain the integrity of schools, inAdler 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 inwhich they live. In this, the statehas a vital concern. Itmust 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 tomaintain 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 thepower and duty toboth 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 substantialrightwhich cannot be taken away except forgood cause. This Court stated in Stateex rel. Saxtorph



### v. DistrictCourt, Fergus County (1954), 128Mont. 353, 361, 275 P.2d 209, 214, as follows: "The right of a school teacher toteach in a school, or school district, from year to year, afterhaving 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 toinsure toteachers who have held teaching positions for three ormore consecutive years, security inthe position, the grade or the statuswhich they have thus attained. 

# . .I II In this case, Yanzick's tenure 

### is a substantial and valuable rightwhich can be taken away by the Board of Trustees only forgood cause. Section 20-4-204, MCA, sets forth procedural requirements which apply upon the termination of a tenured teacher, including themanner of giving notice, hearing, and appeal. The sectiondoes not setforth specific standards which a tenured teacher is required tomeet, or particular grounds which the Trustees arerequired tofind prior tothe termination of a tenured teacher's services. Counsel forYanzick 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 

### itsterms, that section applies to the situationwhere 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 todismiss Yanzick during the 

### termof his employment contract. They chose not torenew 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 consistentwith section 20-3-210(1), which refers toappeals made under section 20-4-204, MCA, relating tothe termination of services of a tenured teacher, and which alsorefers to section 20-4-207 relating tothe dismissal of 

### a teacher under contract. This interpretation also 

### is consistentwith section 20-4-203(1), which provides that trustees by majority votemay resolve toterminate the services of a tenured teacher inaccordance 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 theprovisions of section 20-4-203 and 20-4-204, MCA. In view of our reversal of the DistrictCourt, it is necessary that

### we review the record insome detail. Wehave 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 todirectly 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:

### "Inour view whatmight otherwisebe considered private conductbeyond 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 DistrictCourt 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 inMorrison 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 Californiaboard sought to revokeMorrison's life diploma to teach, thereby completely eliminating his ability to work in California as a teacher. Therewas 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 conductbroadly known throughout the community and to the Board of Trustees, which the Board of Trustees found adversely affected Yanzick's performance as a teacher. Inview 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 1the Trustees concluded thatYanzick has demonstrated a lack of fitness for teaching in statements made tohis junior high student class tothe effectthat his "girlfriend" had tomove out of his house because some people did not like his living arrangements In reason 4, the Trustees concluded thatYanzick had demonstrated

a lack of moral values by cohabiting with a female teacher not his wife inPolson 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 Scottwere living together out of wedlock was clearly erroneous. The record indicates tothe contrary. The record shows that Dr. Christensen, Superintendent of School DistrictNo. 23, met with Yanzick on a number of occasions inrelation tothematters covered by reasons 

### 1 and 

### 4. Dr. Christensen described a portion of one interview with Mr. Yanzick as follows: "Q. What further transpired atthismeeting on January 18th? "A. Atthatpoint, I stated tohim, 'I distinctly recall talking toyou lastyear about comments inthe community relative toyour shacking up with MissScott, the indicator being your coming towork across the bridge every morning, sometimes together.' "And I asked him 

## -- and this 

### is verbatim 

### -- 'Why inheaven's name have you now moved her into your house and openly decided tolivetogether? What possessed you toenter into such a situation.' "Q. How did Mr. Yanzick respond tothat question? "A. Mr. Yanzick stated that, 'I decided todo this because I 

### was recently divorced. I didn't want tomake the same mistake again.' "He rambled on for about 20 minutes, pretty much uninterrupted. Attimes, he was emotional about the situation. He stated that the relationshipwith MissScotthad started rocky, but had now developed intoa beautiful relationship, 'one that means a great deal.' I pointed out tohim that it's obvious with the students inhis 

### classes possessing fullknowledge of this, talking, joking, 

### etcetera, about it, that 

### it was having a detrimental, adverse effect on his classroom teaching. He stated that 'This appears tobe the case, and thisworries me. I likemy job. I feel that I'm a good teacher.' "Q. Dr. Christensen, letme interrupt once again, there. Do you indicate those 

### as being auditory responses toyou, rather than your conclusion from any conclusion you might have drawn from his action or silence? "A. These were his statements. 'This appears 

### tobe the case. This worries 

### me, because I likemy 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 thathe should have Miss Scottmove out." It 

### is important tonote thatMr. 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 inpart 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 toexplain that living arrangement. "Q. What did you mean when you said, 'Yes, you might say that1? "A. Well, when you refer tothe term, most people, I think

## -- or, when Dr. Christensen asked the question, 

### I'm sure thathe meant were we occupying thathouse ashusband and wife in fullterms of the sense, probably, and I did not mean thatby 

## -- my concept of living together does not necessarily include allof those aspects. "Ithink you can be livingwith someone without sharing the bed with them, necessarily, allthe time. I won't deny that I went with MissScott. I won't deny our relationship. But I was not technically living inthathouse.'' With regard to the discussion before his junior high class of his girlfriendmoving out, Superintendent Christensenfurther testified: 

### "Q. Did anything further concerning Mr. Yanzick then occur relative tocomplaints 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 inclass tothe effect that, 'My girlhas moved outbecause people didn't approve of our arrangement.

## ' "Iwent to Mr. Dupuis's office this time, and inMr. 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 tonote that Superintendent Christensen believed the living arrangements and statements of Mr. Yanzick should be considered only tothe extent that they affected his classroom performance. On this aspect, Superintendent Christensen testified: "A. I recommended tothe Board of Trustees at that time that it was my opinion thatMr. Yanzick had repeatedly shown such a lack of judgment in acts as

### wellas statementsmade tohis classes to make him unfit forclassroom duty in dealings with young, immature teenagers, who, I might add, are atan impressionable stage of development. "Q. With respect to any moral issues or questions involved, did you venture an opinion tothe 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 inhis classroom and were having a demonstrated adverse effect on his classroom performance. "The Board members, by and large, agreed with that, and said yeah, thatwas true, and thatwas prettymuch the end of the discussion regarding his living arrangements as such." The County Superintendent was inthe position of the

### trier of fact, and sowas able tohear and evaluate the testimony of thevarious witnesses. Some of the evidence definitely is conflicting. Under such circumstances, the conclusions of the 

### trier of factdeserve particular weight. The County Superintendent and the State Superintendentboth found thatTrustees' reasons 

### 1, 4 and 5

### were supported by the evidence. Applying the standard of section 2-4-704, MCA,



### we findreasons 1, 4 and 5 arenot clearly erroneous inview of the reliable, probative and substantial evidence on the whole record. The County Superintendent's finding of factNo. 15 stated that, although the abortion discussion (reason 2) and the display of fetuses (reason 3) 

### were not inthemselves sufficient grounds for dismissal, they, together with the resultant controversy, 

### were indicative of theadverse impact that Yanzick's living arrangement with MissScott

### was having upon his teaching. While the finding is not totally 

### clear, it does afford a factual basis for this Court toconsider reasons 2 and 3. Inreason 2, theTrustees concluded thatYanzick had demonstrated a lack of fitness for teaching because of introduction of the subject of abortion inthe classroom when he inquired of theboys inthe 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

asto statements made tohim by Mr. Yanzick inthepresence of the principal: "Q. Now, could you please relate to the Superintendent what took place atthat conference, what 

### was said toMr. Yanzick, and what his replies were? Firstof all, you kept

## -- did you keep the notes thatyou 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, "Howmany 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, 'Howmany 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." SuperintendentChristensen concluded that this was an improper approach to be takenwith 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. 

### (ByMr. 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 Ihad a hard time believing it of Mr. Yanzick." After questioning to showhis 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 questionwould 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, Iwent 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 threeplastic sacks. One of the sacks contained an identifiablehuman 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 thathe 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 feelvery strongly that 11 

### and 12 and 13 year old kids are at a really highly impressionable stage of development. Theirmaturity is not such that they can handle shocking things like the public display of a human body in a plastic bag. They cannothandle statements to the effect, 'Howmany 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, 18year 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 Trusteeswould have testified in the same

manner had they been called as witnesses. Under section 2-4-704, MCA, this Courtmay reverse or modify the decision only if substantialrights 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 DistrictCourt. We reinstate the decisions of the State Superintendentand the County Superintendent.

We Concur:

CxefJustice f

### Justices

Mr. Justice Shea dissents and will file a 

### written dissent later.Mr. Justice Frank B. Morrison, Jr., dissenting:

I respectfully dissent from themajority opinion. The majority opinion does not adequately present the record. The question before this Court iswhether therewas substantial credible evidence tosupport a finding that Yanzick was unfit toteach. Yanzick was a tenured teached and inthe 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 thatyou have demonstrated a lack of fitness for teaching inthe position inwhich you have been employed and such 

### a lack of fitness as indicated inall statementsmade toyour class of Junior High School students between the ages of 

### 11 and 

### 14years, with the effect thatyour 'girlfriend' had tomove out of your home because some people did not likeyour living arrangements, which statements were made under circumstances where 

### it

### was common knowledge toyour students and some of theirparents thatyou and MissSharon Scott, a physical education teacher inthe Polson School district, 

### were living together atthat 

### time inyour home inPolson, Montana. "2. The Board of Trustees believe you have further demonstrated a lack of fitness for the teaching position inwhich you have been employed by reason of your introduction of the subject of abortion inyour classroom, whereinyou inquired of the boys inyour class, ages 11 to 14, 'How many of you boys would have your girlfriendget an abortion if she were pregnant?' "3. The Board further feels thatyou have alsodemonstrated a lack of fitness for employment inthe teaching position by a serious lack of good judgment inpermitting the use inyour classroom of human fetuses brought by one of your studentswho had obtained them without authorization from St. Joseph's Hospital Laboratory without theknowledge 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 knowledgeof which fact among your students,has adversely affected your performance as a teacher. "5. 

### The Board is of the opinion thatyou 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 Superintendentheld a hearing. She concluded that Yanzick had 

### - not demonstrated a lack of fitnessby having made the statementregarding abortion nor had lack of fitness been demonstrated by showing that Yanzick displayed human fetuses to his classes on human reproduction. However, the County Superintendentdid uphold the school board's determination that Yanzick was unfit to teach because of his relationship with a teacher to whom he was notmarried. Yanzick then appealed to the Superintendentof 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 Superintendentwas 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 thatYanzick be reinstated and paid lostwages. Yanzick was a teacher of seventh grade science and math at PolsonMiddle School and had taught there for sevenyears. Some 

### timeduring the 1975-76 school year, Yanzick and a young woman began dating. Atthat 

### timethe young

woman was living on the west shore of Flathead Lake and Yanzick was living inhis camper. In September of 1976, she moved intoYanzick's house asa rent-paying tenant. Yanzick remained inhis camper which was parked within 15 feetof the house. The problem of the living arrangement firstcame tothe 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 tobelieve that the two 

### were actually living together. Yanzick was concerned about students talking about his living situation and decided tohave 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 girlfriendmoved outbecause 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 atme. I can sleep and eatwherever I please." Yanzick admitted making the statement tohis class about his girlfriendmoving outbecause of objections voiced by others, but denied making the other statement. There was no corroboration for Mrs. Herreid's testimony. Yanzick did respond toa student's question about hispersonal relationshipby tellingthe class thathis personal lifewas not a subject for classroom discussion. On March 10, 1977, another parent had

an informal discussion with Dr. Christensen, complaining thatYanzick's relationship with the young woman was a bad influence on his daughter, who now feltthat living with a

man out of wedlock was an acceptable way of life. Atthe hearing before the County Superintendent only

one other parent testified on behalf of the school board. That person testified that his daughter told him thatYanzick said the subject of his personal lifewas nobody else's business. The school board did not have any students testify. Inmaking findings of fact, the District Court said: "The finding that the petitioner and MissScott were living together out of wedlock and that this arrangement was a matter of public knowledge 

### is clearly erroneous inview of the reliable, probative and substantial evidence. The evidence to the contrary 

### is overwhelming. Mr. Yanzick testified thathe never lived with MissScottbefore they were married 

### (tr.230). MissScott also sotestified 

### (tr. 388). Four rent checks paid by MissScott tothe petition

### er for themonths she lived inhis house were admitted into evidence (petitioner's exhibit E). Three witnesses, 

### JimSturm, Clay Herrin and Dennis Day testified that they were friends of the petitioner's, spent 

### timewith him and never observed him and MissScott cohabitating 

### (tr. 173, 174, 346, 380). Not one single

### witness testified thathe knew that the petitionerand MissScottwere infact living together. Not a singleparent who testifiedhad any idea astothe source of their information, or their childrens' information, about the living arrangement or 

### itsbasis in fact 

### (tr. 117, 128, 134, 187, 188). There isno evidence that thepetitioner ever told his classes thathe 

### was living with MissScott. The evidence on the record compels the conclusion that the petitioner and MissScott did not livetogether during the 1976-77 school year. The 'public knowledge within the school community' was nothing but rumor. There 

### is simply no basis infact on the record toreach any other conclusion. It 

### is evident that thepetitionermisled the school officials atthe January 18, 1977, 

### meeting intobelieving thathe was cohabiting with 

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

### (tr. 232), but we certainly cannot attributethatmeeting to the spread of rumors in the town. No one can deny that 

### smalltowns 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 MissScott crossing the Polson bridge together a number of times early inthemorning (Miss Scott lived on thewest shore atthat 

### timeand crossed the bridge toget into town). Dr. Christensen warned him about being more discretewith his relationship with MissScott, although he did not inquire as tothe status of theirrelationship 

### (tr. 50, 52). This bridge crossing incident was also discussed atthe January 18thmeeting (ayear later), ascausing talk in the community 

### (tr. 60). The bridge crossing issuewas clarified, without conflicting evidence, by Miss Scott: (Thepetitioner drove MissScott to school three times when she had car trouble) 

### (tr. 400, 401). Thus, based on the evidence inthe 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 thatYanzick and MissScott 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 orwhether they actually cohabitated in the sense charged by the school board. Cohabitation outof wedlock does not render one an unfit teacher. The problem with this 

### case is that there 

### is

no "substantialcredible evidence" to show that Yanzick's private lifehad an adverse effectupon his teaching. Any such findingby the County Superintendent was necessarily based upon hearsay testimony. The hearing had tobe conducted pursuant tothe statutory rules of evidence, sections 20-3- 210(2), 2-4-612 (2),MCA. Hearsay testimony could not provide thebasis for 

### a finding that Yanzick's private living arrangements adversely affected his teaching. In fact, the uncontradicted testimony 

### is tothe contrary. The school district could not offer any proof toshow diminishedperformance on the part of Yanzick. The school superintendent and principal both feltthathe was an average or better teacher. Mr. Dupuis, his immediate supervisor, recommended hisbeing retained as lateof March 

### 1, 1977. Ralph Campbell,

a board member, never received any complaints about Yanzick and testified thathe

### was a very skilled teacher. The law governing the school board in this matter was stated by the Montana Supreme Court inBoard of Trustees of School DistrictNo. 9, Glacier County 

### v. The Superintendent of Public Instruction (1977), 171Mont. 323, 327, wherein the Court said: "'While school boards arenot 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 administrativeproceedings, it must appear that the dismissal is -- 

### -- based upon evidence supporting the specific charge or charges against the teacher and -nother evidence. 

## * 

## * *'" L--- Such evidence before the school board 

### was lacking. Furthermore, the proceedings before the County Superintendent

werenot informal and were bound by the statutory rules of evidence, aspreviously indicated. The record inthis case fails toreveal a singlewitness with firsthand knowledge which would substantiate a finding thatYanzick was unfit to teach. While theremay have been evidence he was cohabitating with MissScott, this, inand of itself, would not provide a sufficientbasis forhis termination. I believe that school boards should be afforded a great deal of latitude ingoverning local school districts.However, inmy opinion, the Court is countenancing a "witch hunt" inthiscase. The Court 

### is condoning a legal determination based upon rumor and hearsay. In doing so, the securityof tenure has been dealta serious blow. The precedential effect

### willnecessarily diminish academic freedom inMontana. For the foregoing reasons, 1x;egister a vigorous dissent.