                               No. 8 7 - 5 1 0
               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    1988


TRUSTEES OF LINCOLN COUNTY SCHOOL
DISTRICT NO. 13, EUREKA, MONTANA
                Respondent and Appellant,


CARL R. HOLDEN , JR. ,
                Appellant and Respondent



APPEAL FROM:    District Court of the Fourth Judicial District
                In and for the County of Missoula
                The Honorable Leif B. Erickson, Judge presiding.
COUNSEL OF RECORD:
       For Appellant:
                Susan Loehn, County Attorney, Libby, Montana
                Richard P. Bartos, Office of Public Instruction,
                Helena, Montana
For Respondent:
                Robert S. Keller; Keller and German, Kalispell, Montana


                                   Submitted on Briefs:   March 18, 1 9 8 8
                                      Decided: M ~ Y1 1988
                                                   3




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

     Mr.   Holden1s teaching   contract   with   the   Appellant
 (School District) was terminated.    He appealed administra-
tively. Following administrative review, the District Court
for the Fourth Judicial District, Missoula County, ordered
the School District to pay Mr. Holden the salary due under
his contract of employment. The School District appeals. We
affirm.
      The issues are:
      1. Did the District Court err in finding that the
County Superintendent' s findings of fact and conclusions of
law were not clearly erroheous?
      2. Was there sufficient evidence to support the deter-
mination of the County Superintendent that the Board of
Trustees did not have good cause to dismiss Mr. Holden?
     Mr. Holden was employed by the School District, in
Eureka, Montana, beginning in October 1983.      In his first
year, he taught music, chorus, and band for grades 3 through
12. Mr. Holden's formal evaluation, completed in April 1984,
was marked satisfactory in all areas except rapport with
students.
      In the 1984-85 school year, Mr. Holden1s contract was
renewed and grades 1 and 2 were added to his teaching load.
On October 2, 1984, Mr. Holden called a girl a "slob" in
class because she was not paying attention and was slumped
down in her chair. The elementary school principal and the
superintendent met with Mr. Holden regarding this incident.
In a letter of reprimand dated October 3, 1984, the superin-
tendent informed Mr. Holden that another such incident of
abuse would be grounds for dismissal.
     Five days later, Mr. Holden made the comment, "move
over, Goodyear," to a child or group standing in front of a
tape machine.   The children reported the incident to the
school administrators, as a comment directed to one child who
was "heavy built."    The superintendent and the elementary
principal met again with Mr. Holden and gave him the option
of resigning or being suspended until a hearing could be held
on the charges against him. He also was informed that he had
the right to be present at the hearing and to have counsel
present.   He did not attend the hearing, but submitted a
letter to be read into the record. After hearing the evi-
dence, the Board of Trustees voted to dismiss Mr. Holden.
     Mr. Holden appealed to the Lincoln County Superintendent
of Schools (County Superintendent), before whom a second
hearing was held, pursuant to       20-4-207(2), MCA (1983):

         Any teacher who has been dismissed may in
    writing within 10 days appeal such dismissal to the
    county superintendent.    Following such appeal a
    hearing shall be held within 10 days.       If the
    county superintendent, after a hearing, determines
    that the dismissal by the trustees was made without
    good cause, he shall order the trustees to rein-
    state such teacher and to compensate such teacher
    at his contract amount for the time lost during the
    pending of the appeal.
The County Superintendent concluded that the School District
had failed to substantiate good cause for termination and to
ensure Mr. Holden's due process rights.      She ordered the
School District to pay Mr. Holden the money to which he was
entitled under his 1984-85 contract.     The School District
appealed to the State Superintendent of Public Instruction,
who reversed the County Superintendent and affirmed the Board
of Trustees' original decision. Then Mr. Holden appealed to
District Court, which reversed the decision of the State
Superintendent and ordered the School District to pay Mr.
Holden his salary due under the 1984-85 contract. The School
District appealed that decision to this Court.
     Did the District Court err in finding that the County
Superintendent's findings of fact and conclusions of law were
not clearly erroneous?
     The School District raises three separate arguments
under this issue. It first argues that the County Superin-
tendent was clearly in error when she ordered the School
District to pay Mr. Holden the sums due to him under his
1984-85 contract. The County Superintendent made her deci-
sion in January 1985, and the School District asserts that
she had no jurisdiction to award any judgment for contract
amounts due beyond that date.
     Mr. Holden does not dispute that the County Superinten-
dent erred in awarding him his wages for the entire year.
The District Court, too, concluded that the County Superin-
tendent exceeded her authority. We order this award stricken
from the County Superintendent's decision.      However, the
District Court pointed out that by the time it considered
this matter, the school year had expired, so that the award
of the full contract amount was appropriate. The District
Court properly ordered that these monies be paid to Mr.
Holden as damages.
     The School District next argues that the County Superin-
tendent improperly declined to make fact findings on an
alleged incident in October 1983, despite the existence of
evidence as to that event.     In that incident, Mr. Holden
apparently had said something to the third grade class which
distressed them.   Mr. Holden's personnel file contains no
written evidence of this incident. The County Superintendent
stated:

     Exactly what was said, to whom it was said, and the
     follow up discussion with the principal are vaguely
     and inconsistently presented in the testimony.
The School Board correctly points out that Mr. Holden was not
given notice of the above incident as a reason for his termi-
nation. As a result, the incident could not properly be used
as a reason for his dismissal. See Bd. of Trustees, Etc. v.
Super. of Pub. Inst. (1977), 171 Mont. 323, 327, 557 ~ . 2 d
1048, 1050-51. The County Superintendent properly noted in
her conclusions that she was limited to consideration of the
evidence supporting the specific charges given as a reason
for Mr. Holden's dismissal. We hold that it was not error to
omit additional findings on the incident.
     Third, the School District argues that the County Super-
intendent improperly discussed the issue of progressive
discipline. This discussion appears under the heading "other
due process considerations" in the County Superintendent's
order and was not necessary to the determination of whether
the School District had good cause for terminating Mr.
Holden's contract. We hold that the discussion is not essen-
tial to the good cause determination by the County Superin-
tendent and does not constitute clear error.
                             I
                             !:
    Was there sufficient evidence to support the determina-
tion of the County Superintendent that the Board of Trustees
did not have good cause to dismiss Mr. Holden?
     Under § 20-4-207, MCA, a school district may dismiss a
teacher before his contract has expired "for immorality,
unfitness, incompetence, or violation of the adopted policies
of such trustees." The County Superintendent concluded that:

         Only 2 incidents of inappropriate language
    were deemea worthy of written documentation and
    clear directives for Mr. Holden.     This does not
    seem to be a preponderance of evidence, nor suffi-
    cient cause for dismissal.
         The ability to maintain control and/or moti-
    vate students seems clearly to me to be a matter of
     competence  . .  . Although sarcastic and cutting
     language is totally inappropriate in the classroom,
     it was not proven that Mr. Holden's language im-
     paired his ability to "discharge the duties of his
     position."
      Under § 20-4-207, MCA, neither the State Superintendent
of Public Instruction nor the District Court may substitute
its judgment for that of the County Superintendent on issues
of fact. Frazer School Dist. No. 2 v. Flynn (Mont. 1987),
732 P.2d 409, 410, 44 St.Rep. 248, 250. The transcript used
on appeal is from the hearing before the County Superinten-
dent.      Sections 20-3-107 ( 2 ) , MCA, and 20-3-210 (3) , MCA.
Further, findings of the reviewing agency cannot be included
as facts when they are not part of the County Superinten-
dent's findings. Frazer, 732 P.2d at 411. The decision of
the State Superintendent of Public Instruction includes a
number of findings which were not part of the County Superin-
tendent ' s findings.   After reviewing the findings of the
County Superintendent, we conclude that they are supported by
substantial evidence in the record.
      The District Court stated that the County Superintendent
had the discretion to decide that the two incidents were not
so serious as to merit dismissal of Mr. Holden. We agree.
Without condoning the remarks Mr. Holden made to his stu-
dents, we hold that it was not error for the County Superin-
tendent to conclude that the two incidents were not good
cause for Mr. Holden's dismissal.
     Affirmed.
>LA    4.29
      Justices
