                              NO. 83-75
               IN THE SUPREME COURT OF THE'STATE OF MONTANA

                                      1983



ADELINE DONNES ,
               Petitioner and Appellant,


STATE OF MONTANA, ex rel., SUPERINTENDENT OF
PUBLIC INSTRUCTION, and BOARD OF TRUSTEES,
CARBON COUNTY SChOOL DIST. #1,
               Respondent and Respondent.




APPEAL FROM:   District Court of the First Judicial District,
               In and for the County of Lewis & Clark,
               The Honorable William J. Speare, Judge presiding.

COUNSEL OF RECORD:
      For Appellant:
               Utick, Grosfield   &   Uda; Joan A. Uda argued, Ilelena,
               Montana
      For Respondent:
               John W. Larson argued, Helena, llontana
               Arthur W. Ayers, Jr., argued, Red Lodge, Montana



                              Submitted:      September 15, 1983

                                  Decided:    November 23, 1983


Filed:




                                                    -
                              Clerk
The Honorable Douglas G. Harkin delivered the Opinion of the
Court.
        Petitioner         Adeline           Donnes    (Donnes)     appeals       her
termination as a tenured teacher by the Carbon County Board
of Trustees         (Trustees).          The decision of the Trustees to
terminate Donnes was reviewed and sustained by the County
Superintendent of Schools (County Superintendent), and the
State         Superintendent            of      Public      Instruction       (State
Superintendent) and the First Judicial District Court.                             At
each level, sufficient evidence was found to support her
termination         because       of    her     poor     relationship     with    her
students in the sixth grade.                   We affirm.
    The following issues are raised by appellant:
        1.    Are   the     administrative and            court decisions upon
which        this   appeal       is    based    fatally defective under           the
Montana Administrative Procedure Act, and is the District
Court's decision clearly erroneous because not supported by
reliable, probative and substantial evidence on the record as
a whole?
        2.    Was the Trustees' termination of Donnes as a tenured
teacher in violation of due process requirements, and in
violation of the covenant of good faith and fair dealing in
employment contracts?
        3.    Did    the    County       Superintendent        commit     reversible
error in adopting verbatim the proposed findings of fact and
conclusions         of     law    submitted       by     the   attorney    for    the
Trustees?
    Donnes was a tenured teacher with 35 years of teaching
experience.         The evidence suggests that she performed well
"in the cognitive area," but, despite warnings, received
negative        evaluations,           had     frequent     confrontations       with
parents and the school principal, and was abusive, arbitrary
and insensitive to the students1 feelings.                    Donnes is now in
her late sixties and asks not that this Court reinstate her,
but that it award back pay to her if her termination is
overturned.
     Donnes was first notified of her termination in March of
1977,     after        the     Trustees      followed       the     principal's
recommendation and voted unanimously not to rehire her.                       Upon
her request, Donnes was furnished with a specific statement
of reasons for her termination and was granted a hearing by
the Trustees, who then affirmed their decision to fire her.
They also ad.ded reasons 5 and 6 to the following statement of
reasons for her termination:
     1.   Belittling           and      ridiculing     students      by     making
degrading     comments         about     students      in   the    presence     of
students.
     2.   Failure        to     satisfactorily         correct     problems     as
outlined in a post-evaluation with the principal.
     3.   Creating           negative     feeling    toward       school,   which
substantially impairs normal educational progress.
     4.    Inconsistent and erratic grading practices.
     5.   Failure to sign Evaluation according to Trustees1
policy.
     6.   Repeated           physical     abuse   or    corporal     punishment
contrary to statute.
     In May       of    1977, upon Donnes' petition, the County
Superintendent conducted a hearing.                    A transcript was made

and records of Trustees' meetings and letters, were entered
into the record.             The principal testified extensively, but
much of his evidence of specific instances of Donnes1 conduct
was hearsay.       The hearsay evidence from the principal was
admitted     by    the   County    Superintendent        for   the    limited
purpose of showing that complaints had been received, not
that the accusations were true.                  The only other witness
actually testifying about Donnes' conduct was the mother of a
girl who had       received a      "U"    (unsatisfactory) grade from
Donnes.     This witness was also the wife of a member of the
Trustees.
     There    is much     conflict in the transcript regarding
Donnes' awareness of the problems and complaints, whether she
actually abused the students, and whether she had been warned
by the principal that he would recommend her termination if
her conduct did not improve.             The record includes evidence
that the Trustees had attempted to terminate Donnes two years
earlier for physically disciplining certain children, but
that attempt was unsuccessful because it was not properly
effected, and was overturned after review by                      the County
Superintendent.
    On July 1, 1977, the County Superintendent upheld the
Trustees'     termination     of     Donnes.           However,    the   only
significant finding supporting the County Superintendent's
decision     was   that     "[tlhe       Board    of    Trustees     . . . had
substantial evidence upon which to base its decision."
     The State Superintendent denied Donnes' petition for a
        de novo, and held reasons 5 and 6 must be stricken.
hearing - -
After a hearing at which Donnes testified and was allowed to
present     additional     evidence,       the     State    Superintendent
concluded    that even without reasons 5 and 6, there was
sufficient evidence to support the County Superintendent's
decision.    The State Supperintendent issued detailed findings
of fact based upon (1) its review of the written transcript
of   the    hearing       before     the    County     Superintendent,       (2)
testimony of Donnes before the hearing examiner appointed by
the State Superintendent and (3) the remainder of the record.
     Donnes petitioned the District Court for administrative
review, reinstatement and an award of back pay or, in the
alternative, an order directing the State Superintendent                     to
hold a hearing - -
               de novo.              The District Court affirmed the
decision     of     the    State     Superintendent      and    this     appeal
followed.
MAPA DEFECTS
     Donnes argues two substantial defects in the decision of
the County Superintendent.            First, the County Superintendent
failed to include findings of fact with an explicit statement
of the underlying facts supporting the findings as required
by the Montana Administrative Procedure Act (MAPA) at Section
2-4-623(1), MCA.          Second, the County Superintendent failed to
rule on Donnes' proposed findings of fact as required by the
MAPA at Section 2-4-623 (4), MCA.             Donnes argues that because
of these defects, the administrative decision was "made upon
unlawful procedure", was             made    in violation of           statutory
provisions    and     substantially         impaired the      rights of     the
appellant because findings of fact were not made.                       Section
2-4-704 (2)(a), (c), (g), MCA.
     The    provisions       of MAPA       became    applicable    to    school
controversies on July 1, 1977 when the statutory definition
of   "agency"     was      amended    to     include    state     and    county
superintendents.           See Yanzick -
                                       v.          School District -
                                                                   No.       -
                                                                             23
(Mont.     1982),    641     P.2d    431,     39    St.Rep.     191;    Section
2-4-102(2) (c), MCA amd. Section 2, Ch. 285, Laws of Montana
(1977)   .    July 1, 1977 was also the date of the decision of
the County Superintendent.
     Although the 1977 amendments to the MAPA do not contain
an   express       provision    defining      the      effect    upon    pending
proceedings, the MAPA, at its original enactment in 1971,
provided that "pending proceedings shall not be affected".
Section       26   of   Ch.    2,   Ex.   Laws    of     1971.      Consistent
application of such a clear statement of legislative intent
mandates that the 1977 amendment to the MAPA does not apply
to the Donnes proceeding that was then pending before the
County       Superintendent.        Donnes'      argument    that       the   MAPA
applies to the proceeding before the County Superintendent is
without merit.
SUFFICIENCY OF EVIDENCE
     Donnes also argues that the District Court's decision is
clearly erroneous because it was not supported by reliable,
probative and substantial evidence on the record as a whole
pursuant to Section 2-4-704(2)(e), MCA.                 Specifically, Donnes
urges that (1) the evidence of incidents of improper conduct
was merely a list of complaints admitted into evidence for
the purpose of establishing the fact of the complaints only,
and that for any other purpose the incidents were hearsay,
(2) the only other evidence was unreliable as it was the
testimony of Mrs. Maurlen Marcusson, the mother of a student
who received a "U" (unsatisfactory) grade from Mrs. Donnes.
     The District Court may not substitute its judgment for
that of the agency as to the weight of the evidence on
questions of        fact.      Section    2-4-704 ( 2 ) ,   MCA; Yanzick -
                                                                         v.
School District - - (Mont. 1982), 641 P.2d 431, 438, 39
                No. 23
St.Rep.      191, 200.        To effect a reversal of the District
Court's decision based on the weight 9f evidence, this Court
must find the decision of the District Court to be "clearly
erroneous1'. Section 2-4-704 (2)(e), MCA; Wheatland County -
                                                           v.
Bleeker (1978), 175 Mont. 478, 575 P.2d 48.
     It is true that much of the principal's testimony was

admitted solely for the purpose of establishing the fact of
complaints.       However, beyond that testimony, there is ample
evidence to support the decision of the District Court:
     1.     There were      a   great number of          complaints about
Donnes' treatment of her students;
     2.    Mr. Gist, the principal, investigated the complaints
and in his opinion most were well founded;
     3.    Mr. Gist testified as to his own observations of
students crying and disruptions in Donnes' classroom;
     4.    Mr.    Gist was of the opinion that Donnes was an
ineffective teacher from the standpoint of dealing with the
feelings of the school children;
     5.    Both    Mr.   Gist   and   Mrs.   Marcusson      knew    some of

Donnes1 students personally, and noted a very definite change
for the worse in the attitude of these students toward Donnes
and the school after attending her class;
     6.    Mr.    Gist   testified that he        did    not     feel Donnes
progressed in her relationships with her students between
November 1976 and March 1977;
     7.    Mrs. Marcusson personally observed the teachinq of
Donnes on a daily basis, for nearly three weeks; and
     8.    Mrs.    Marcusson    testified     that      Donnes    frequently
wasted    more    than   one-half     of   each   class bickering with
students   and     frequently disciplined         students erroneously.
    Donnes'           contentions         of    hearsay       and     unreliability
notwithstanding,           this     Court      finds    this       evidence    to   be
sufficient       to       support     the      independent          and     consistent
decisions of the Trustees, the County Superintendent and the
District Court.
GOOD FAITH AND FAIR DEALING
    Donnes         next       contends         that     her     firing       and    the
circumstances surrounding her firing were a violation of due
process and the covenant of good faith and fair dealing in
the employment contract.                 Donnes refers this Court to the
covenant    of     good      faith       and   fair     dealing       in    employment
contracts recognized by               this Court in Gates -
                                                          v.                  - -of
                                                                              Life
Montana - - (Mont. 1983), 668 ~ . 2 d
        Ins. Co.                     213, 215, 40 St.Rep.
1287, 1289.      This issue is not properly before this Court as
no such tort was pled in the District Court.                               It is well

settled that a party may not change his theory on appeal to
this Court from that advanced in the trial court.                            Velte -
                                                                                   v.
Allstate    Ins.      Co.
                      -       (1979), 181 Mont.            300, 593 ~ . 2 d 454;
Chamberlain -
            v         .   Evans (1979), 180 Mont. 511, 591 P.2d 237;
Sturdevant -
           v.         Mills    (1978), 177 Mont.              137, 580 ~ . 2 d923.
     Donnes'       allegations           of    denial    of     due       process   are
therefore relevant only to the extent that they demonstrate
prejudice     to       the    substantial         rights      of     the     appellant
justifying reversal of the agency decisions under Section
2-4-704 (2)(a), MCA.              None of the alleged breaches of due
process kept Donnes from having a full, fair and correct
adjudication of her substantive rights.
VERBATIM ADOPTION OF FINDINGS
     Finally, Donnes challenges the County Superintendent's
verbatim    adoption               the    proposed      findings             fact and
conclusions    of   law   submitted   by   the   attorney   for   the
Trustees.     Findings and conclusions which are "sufficiently
comprehensive and pertinent to the issues to provide a basis
for decision, and which are supported by the evidence," will
not   be    prejudicial   merely    because   the   court   followed
proposals of counsel.     In Re the Marriage of Parenteau (Mont.


      The decision of the District Court is affirmed.




                                   ~istrict- Judge, sitting        in
                                   place of Mr. Justice
                                   Frank B. Morrison, Jr.
We concur:

 %a&@&
Chief Justice




Justices
Mr. J u s t i c e J o h n Conway H a r r i s o n , d i s s e n t i n g .


          I respectfully dissent.                     In s o doing, I find t h a t the
f a c t s i t u a t i o n h e r e r e q u i r e s t h a t someone s p e a k o u t t o t h e
p o i n t o f d u e p r o c e s s and t h e c o v e n a n t o f good f a i t h and f a i r
dealing with t h i s teacher.                     A d e l i n e Donnes g a v e t h e s c h o o l

s y s t e m o f Carbon C o u n t y t h i r t y - t w o y e a r s o f f a i t h f u l s e r v i c e
p r i o r t o March 7 , 1 9 7 7 , when t h e Board o f T r u s t e e s v o t e d a t

a   s p e c i a l meeting        not    t o renew h e r          contract f o r the year
1977-78.         R e c o r d s r e v e a l t h a t s h e was n o t n o t i f i e d t h a t h e r

c o n t r a c t would      be d i s c u s s e d     a t t h a t meeting,          and was n o t
present.
          She was, h o w e v e r , n o t i f i e d o f t h e d e c i s i o n t o f i r e h e r
i n a l e t t e r d a t e d March 1 4 , 1977.                 She r e q u e s t e d a w r i t t e n

s t a t e m e n t " d e c l a r i n g c l e a r l y and e x p l i c i t l y s p e c i f i c r e a s o n

o r r e a s o n s " f o r s u c h t e r m i n a t i o n , by l e t t e r d a t e d March 2 1 ,
1977.

          On March 2 2 ,          t h e Board h e l d         another       s p e c i a l meeting
s p e c i f i c a l l y " t o f o r m u l a t e t h e r e a s o n s f o r n o t o f f e r i n g Mrs.
A d e l i n e Donnes a c o n t r a c t f o r t h e 1977-78 s c h o o l y e a r . "                The
r e a s o n s a r r i v e d a t by t h e Board d u r i n g t h e m e e t i n g w e r e :
                  "1.        B e l i t t l i n g and r i d i c u l i n g s t u d e n t s
                  by making d e g r a d i n g comments a b o u t
                  s t u d e n t s i n t h e presence of s t u d e n t s .
                  "2.   Failure t o satisfactorily                           correct
                  problem   areas   as    outlined                            in   a
                  post-evaluation with principal.
                   3  .  C r e a t i n g n e g a t i v e f e e l i n g toward
                  school,      which s u b s t a n t i a l l y i m p a i r s
                  normal e d u c a t i o n a l p r o g r e s s .
                  "4.    Inconsistent                 and     erratic        grading
                  practices."
          On March         22,     1977,      the     Board      mailed       Mrs.      Donnes       a
second        and      almost        identical           letter        notifying           her     of
t e r m i n a t i o n , w h i c h was d o n e b e c a u s e t h e f i r s t l e t t e r was n o t

s e n t by c e r t i f i e d m a i l , a s r e q u i r e d b y s t a t u t e .           The s e c o n d
l e t t e r was s e n t by c e r t i f i e d m a i l ,              but did not contain a

copy     of       Section       20-4-204,          MCA,    which       is    required           by     the
s t a t u t e t o accompany s u c h l e t t e r s .

          By l e t t e r d a t e d March 2 8 ,             1977,      t h e B o a r d g a v e Mrs.
Donnes        a    statement           of     its    reasons          for    termination               as

r e q u i r e d b y t h e s t a t u t e , w h i c h w e r e word f o r word a s q u o t e d
above,        from       the    Board's        minutes         of    its    March        22,      1977,

meeting;          Mrs.    Donnes       then requested a                termination hearing
b e f o r e t h e Board.
          By l e t t e r d a t e d A p r i l 8 ,          1977 ( a F r i d a y ) , t h e Board
n o t i f i e d Mrs. Donnes t h a t h e r t e r m i n a t i o n h e a r i n g would b e
h e l d o n A p r i l 11, 1 9 7 7 ( t h e f o l l o w i n g N o n d a y ) , a t 6 : 3 5 p.m.
          A s scheduled,           t h i s h e a r i n g was h e l d o n A p r i l 11, 1 9 7 7 .
It    commenced          at     6:30    p.m.       and    ended      at     7:15    p.m.,        after
which      the      Board       went        into    special         session        and    voted        to
affirm their             previous           decision      to    terminate          Mrs.        Donnes'

services.           The B o a r d a l s o t h e n v o t e d t o a d d two new r e a s o n s
f o r termination t o those previously decided:
          "5.      Failure        to    sign        Evaluation         according           to    Board
policy.
          "6.        Repeated p h y s i c a l abuse o r               c o r p o r a l punishment
contrary t o statutes."
          By a l e t t e r d a t e d A p r i l 1 9 , 1 9 7 7 , t h e Board n o t i f i e d

Mrs. Donnes t h a t t h e y had a f f i r m e d t h e t e r m i n a t i o n d e c i s i o n
and of a d d i t i o n a l r e a s o n s f o r t e r m i n a t i o n .
          Mrs. Donnes a p p e a l e d t h e d e c i s i o n t o t h e C a r b o n C o u n t y
Superintendent             of     Schools,          Peggy      Ann     Kotar,       who         held     a
h e a r i n g o n May 1 0 , 1 9 7 7 .              Superintendent Kotar                  issued her
findings and order sustaining the Board's decision on July
1, 1977.       Superintendent Kotar did not send a copy of the
order to Mrs. Donnes, and Mrs. Donnes did not become aware
of the order until August, 1977.                On August 16, 1977, Mrs.
Donnes appealed Superintendent Kotar's order to the State
Superintendent of Public Instruction.
      On October 13, 1977, the State Superintendent signed a
notice   of    hearing,      scheduling a hearing           to be    held   on
October 19, 1977.         This October 13th notice of hearing was
actually mailed out to the parties on October 17, 1977, two
days prior to the hearing.              On October 18, 1977, the State
Superintendent appointed Corbin Howard, her staff attorney,
as hearing examiner, and the hearing was held as scheduled
on October 19, 1977.
      This was a "supplementary hearing" and not a hearing
de novo as requested by Mrs. Donnes.
      The hearing        examiner       issued his       findings of    fact,
conclusions of law, ten months later on July 6 , 1978, and
exceptions were filed on behalf of Mrs. Donnes.                     The State
Superintendent filed the final order on November 6, 1978.
      On December         5, 1978, Mrs.           Donnes    appealed     this
decision      to   the District        Court.     Upon    Respondent    State
Superintendent's motion to dismiss, the Honorable Gordon R.
Bennett ruled:       (1) that Mrs. Donnes' appeal to the State
Superintendent was timely filed; (2) that Mrs. Donnes was
not   entitled      to   a     hearing    de    novo     before   the   State
Superintendent;          (3)    that     the    Montana     Administrative
Procedure Act, Section           2-4-101       et seq., MCA, applies to
teacher appeals; and           (4) that the State Superintendent's
motion to dismiss her appeal was denied.
       On November 1, 1979, Judge Bennett withdrew from the
case and the Honorable William J. Speare was substituted.
None of the parties were notified of the substitution at
that   time, due to an oversight by          the Clerk of Court's
office in failing to mail copies to any of the parties.
       After    further   preliminary       matters   the   case       was
submitted for the court's decision on June 13, 1980, the
District Court denied the State Superintendent's "renewed"
motion to dismiss on January 21, 1982, and also denied Mrs.
Donnes'   motion    for   a   supplemental hearing      before         the
District Court to take supplemental evidence on procedural
irregularities as permitted by Section 2-4-704, MCA.                   The
court then set a final briefing schedule and the matter was
submitted March     31, 1982 for     the final decision by             that
court on January 13, 1983.
       Of the three issues set forth in the appeal, I feel
that all are of the utmost importance, but in view of the
fact that the majority uphold          the procedures followed
herein, I will direct my comments to the first two issues,
that of the administrative and court decision upon which the
appeal was based being fatally defective under the Montana
Administrative Procedure Act and therefore erroneous, and
the due process question raised on the second issue.
       It is my opinion that the standard of review for the
Montana Administrative Procedure Act (MAPA) as applied to
teachers'      appeals was    set   forth    in   Yanzick v. School
District No. 23                                             Mont   .
at 387.   In Yanzick this Court stated, "Under this section,
[2-4-704, MCA]     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."                     Therefore,
Yanzick        requires     that    the    decision       of   the   County
Superintendent be the key decision for the judicial review
of termination of a tenured teacher.
         Under Montana law it is clear that the provisions of
Section 2-4-623, MCA, apply to the findings and conclusions
prepared by both the State and County Superintendents in
tenured       teacher    appeals.    Additionally,        this Court made
clear in Yanzick, supra, our scope of review when the case
is presented to us.
                "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."   641 P.2d at 439, 196 Mont. at
                388.
         In my opinion, in the instant case, the findings of
fact and conclusions are defective in a number of instances,
and     are    "clearly erroneous         in view    of    the    reliable,
probative, and substantial evidence on the whole record."
         First, the County Superintendent made no findings of
fact from the evidence presented before her on the May 10,
1977 hearing.           Her findings of fact concerned solely the
procedural events which preceded that hearing.                   She ignored
the elementary facts before her and made no comment on the
weight she placed upon those facts as required by Section
2-4-623, MCA.           Nor was the deficiency corrected by either
her findings of fact and conclusions of law, or her order
which    states    her     conclusion     that   "substantial evidence"
existed, without      indication as         to what   the    substantial
evidence was.
       I note    that    the   sole    witness    before     the   State
Superintendent was Mrs. Donnes.         No witnesses for the Board
of Trustees appeared before the State Superintendent.              Thus,
the State Superintendent was not in the position of "trier
of fact;" she did not have the benefit of hearing all the
witnesses.   What she did in my opinion, is precisely what
Section 2-4-704(2), MCA, forbids: she attempted, by issuing
her own findings of fact, to substitute her judgment on
evidentiary questions for that of the County Superintendent.
These after-the-fact findings do not correct the glaring and
totally deficient hearings of this County Superintendent.
       The   Carbon      County    Superintendent's           decision,
therefore, is the central decision upon which the validity
of this case rests, and is in my opinion entirely defective
and clearly erroneous.         Here,    the County     Superintendent
never ruled on the weight of the evidence presented by the
Principal of the school, Mr. Gist.            The list of complaints
that Mr. Gist presented contained the "substance" of most of
his testimony.    This was objected to by Mr. Worswick, the
MEA   representative, who on a two day notice appeared to
assist Mrs. Donnes in her difficulties and who made                  the
objection that the testimony was hearsay.
       In addition the County Superintendent's decision is in
my opinion defective because she failed to rule on Mrs.
Donnes' proposed findings and conclusions, as required by
Section 2-4-Q23(4), MCA.
       Also, under Section 2-4-704(2) (c), MCA, the County
Superintendent's        decision      was     "made   upon     unlawful
procedure," because she did not clearly follow the statutory
decision-making         requirements of            Section         2-4-623, MCA,        in
that she failed to make findings of fact, failed to cite
authorities, failed to give reasoned opinions and failed to
rule on Mrs. Donnes' proposed findings and conclusions.                                 In
addition       she   did    not      make     findings        of    fact   on    issues
essential to the decision, even though the proposed findings
and conclusions were submitted on behalf of Mrs. Donnes.
        More    important, I           find    that      the       evidence here        is
incredible       upon      which      to    base    a    finding of         fact and
conclusion upon.            Although several witnesses appeared to
testify on Board procedures only two, Mr.                             Gist and Mrs.
Marcuson,       appeared      to      testify      on        substantial natters
concerning Mrs. Donnes.
        In regard to Mrs. Marcuson, she is the mother of a
student who had some difficulties in the appellant's class
due    to    alleged    discipline          complaints.             Mrs.   Marcuson's
husband, was a member of the School Board who was present
and voted on April 11, 1977, to terminate the services of
Mrs. Donnes.

        The relationship between the School Board member and
Mrs. Marcuson, is in my opinion, a very telling factor in
the unfair       procedure           that Mrs.      Donnes          suffered.        Mr.
Marcuson was         not, although attorney was present for                            the
Board,       requested      to       decline       to        participate        in   the
proceedings, since his wife was the sole parent to appear,
and this to me is fatal.
        Next for consideration, I feel that the Board's firing
of    Mrs.    Donnes    was      a    violation         of    due    process     and    a
violation of covenant of good faith and fair dealing in the
employment c o n t r a c t s .           T h i s Court h e l d r e c e n t l y i n Gates v.
L i f e o f Montana I n s . Co.               (Mont. 1 9 8 2 ) , 638 P.2d            1063, 1067,
39 S t . R e p .     1 6 , 20,     t h a t t h e r e i s a c o v e n a n t o f good f a i t h

and f a i r d e a l i n g i n employment c o n t r a c t s .                   T h a t good f a i t h
i n my o p i n i o n       should        be    applicable           to   a     tenured      teacher
case.       I n t h e i n s t a n t c a s e , t h e d e n i a l s o f good f a i t h , f a i r

d e a l i n g s a n d d u e p r o c e s s a r e numerous and a p p a l l i n g .

          I find         t h a t t h e Board of T r u s t e e s '         procedures i n the
A p r i l 11, 1 9 7 7 , " h e a r i n g " d o n o t come e v e n c l o s e t o m e e t i n g

the     elementary           and      fundamental          principles           of    a    judicial
inquiry.            Nor    was     the     "truth     or       falsity"        of    the    charges

against        Mrs.       Donnes      ever      proven,        as     required        by     a   long
series        of     cases     following          S t a t e e x r e l . Howard v . I r e l a n d

( 1 9 4 3 ) , 1 1 4 Mont. 488, 4 9 5 , 138 P.2d                 569.
          It       may    we11     be      that     the        time      for     Mrs.       Donnes'
departure           from t e a c h i n g      the s i x t h grade,           one of        t h e most

d i f f i c u l t g r a d e s i n t h e s c h o o l s y s t e m , had come.                However,

s h e g a v e t h e b e s t p a r t of h e r l i f e t o t h e s c h o o l s y s t e m , and
she     was        entitled      to      more     than     a    shanghai            operation      to
terminate her services.                       I would      r e v e r s e and remand t o t h e
C o u n t y S u p e r i n t e n d e n t f o r a f u l l h e a r i n g on t h i s m a t t e r .
