                                    No. 89-07
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1989




ROSE KELLER,
                   Plaintiff and Respondent,
       -vs-
SCHOOL DISTRICT NO. 5 and its
BOARD OF TRUSTEES, ED ARGENBRIGHT,
Superintendent of public Instruction,
Office of public Instruction, State of
Montana,
              Defendants and Appellants.




APPEAL FROM:       ~ i s t r i c tCourt of the First ~udicial~istrict,
                   In and for the County of ~ e w i s& Clark,
                   The Honorable Thomas Honzel, Judge presiding.
COUNSEL OF RECORD:
       For Appellant:
                   Loren Tucker, County Attorney, ~irginiacity, Montana
                   Beda Lovitt, office of Public Instruction, Helena,
                   Montana
       For Respondent:
                   J. C. ~eingartner,Helena, Montana
              &-




                                      Submitted on Briefs:    April 27, 1989
                                        Decided:    June 6, 1989
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.

      Rose Keller, petitioner, was informed by the Sheridan
School ~istrict, that her teaching contract was not to be
renewed. Petitioner appealed to the County Superintendent of
Public Instruction who upheld the decision of the School
Board, stating that petitioner had not filed timely for an
appeal. The State Superintendent affirmed the school board's
decision, but the ~istrictCourt reversed the Deputy County
superintendent's decision, finding that Keller's appeal was
timely and that she had followed the applicable statute
properly in questioning her dismissal.       Sheridan School
District appeals the District Court's decision. We reverse.
      The issues brought forth by appellant are:
      1. Whether an appeal by the nontenured teacher was
filed timely with the county superintendent, subsequent to
her termination.
      2. Whether petitioner is entitled to reasons for the
nonrenewal of her contract.
      On April 14, 1987, petitioner was informed in writing
that her teaching contract with Sheridan Public School
~istrictNo. 5 was not being renewed for the 1987-88 school
year. The letter informing her of nonrenewal gave no reasons
for the termination of her contract.   However, the minutes
from the school board meeting reflected that the reason all
nontenured teachers (of which Keller was one) had not been
rehired was financial.     Allegedly, all of the nontenured
teachers were released in anticipation that the upcoming mill
levy would not pass.
      Respondent argues in her brief that the mill levy for
the school district did pass in June 1987 and the board of
trustees considered a motion to rehire all of the nontenured
teachers, but the motion failed. The record discloses that a
motion to rehire all of the nontenured teachers, with the
exception of Rose Keller, was passed subsequently.
      Following the April 14 nonrenewal letter, petitioner
did not request reasons for her nonrenewal as permitted by S
20-4-206(3), MCA (1985). She allegedly relied on the school
board minutes which stated that the nontenured teachers were
being released "due to financial conditions of the district
at this time."
      Petitioner appealed her termination with the County
Superintendent on July 21, 1987. The appeal was dismissed on
motion of the school district, for Keller's failure to appeal
within the thirty days required by 10.6.103 (5), ARM.     The
State Superintendent of Public Instruction, Ed Argenbright.,
affirmed the decision of the Deputy County Superintendent.
      The school district appealed to the District Court and
on November 3, 1988, the court reversed the decision of the
Deputy County Superintendent of Schools, stating that Keller
had appealed in a timely fashion and was entitled to be given
reasons for the nonrenewal of her contract.
      The first issue is whether the appeal by petitioner
with the County Superintenderit of Public Instruction was
timely subsequent to her termination. We will address issue
two in conjunction with issue one as they are closely related
in the appeal process. Issue two is whether the teacher is
entitled to reasons for her termination.
      Upon the termination of a teaching contract, a
nontenured teacher has the option of requesting the reasons
for the nonrenewal release under S 20-4-206(3), MCA (1985).
           20-4-206.    Notification of nontenure
           teacher reelection -- acceptance --
           termination and statement of reason.
           (1) The trustees shall provide written
           notice by April- - 15 - to all nontenure
                               -                  -
           teachers who have been reelected. Any
           nontenure teacher who does not receive
           notice of reelection or termination
           shall be automatically reelected for the
           ensuing school fiscal year. (Emphasis
           added). . ..
           (3)     When the trustees notify a
           nontenure teacher of termination, the
           teacher may within 10 days after receipt
           of such notice make written request of
           the trustees for a statement in writing
           of the reasons for termination of
           employment.     Within 10 days after
           receipt of the request, the trustees
           shall furnish such statement to the
           teacher.


"The nontenured teacher is entitled to a notice which states
what undesirable qualities merit a refusal to enter into a
further contract." ~ridgerEducation ~ssociationv. Board of
Trustees, Carbon County School ~istrict No. 2 (1984), 209
Mont. 31, 34, 678 P.2d 659, 660. The request, in writing,
must be made within ten days.   A nontenured teacher also has
the right to appeal the decision of the board of trustees,
pursuant to 10.6.103(5), ARM, within thirty days of receiving
notice of her nonrenewal.    An exception to S 20-4-206(3),
MCA, is subsection (4) of the same statute which states:
          The provisions of this section shall not
          apply to cases in which a nontenure
          teacher is terminated when the financial
          condition   of   the   school   district
          requires a reduction in the number of
          teachers employed and the reason for the
          termination is to reduce the number of
          teachers employed.
section 20-4-206 (4), MCA.
      Petitioner did not request the reasons for termination
of her contract within ten days, nor did she appeal the
board's decision to not renew the contract within thirty
days. 10.6.103 (5), ARM.
      Teacher claims that there are special circumstances
involved here which did not require her to take action.
~ccording to the board of trustees' minutes, the nontenured
teachers were being released because "financial conditions"
required the reductions.  It is clear that if the board of
trustees are to meet the 5 20-4-206, MCA, statutory
requirement of informing teachers of their renewal or
termination, they must do so before April 15 (May 1, as of
the 1987 Montana Legislature, 5 20-4-206(3), MCA) of the
current school year. Section 20-4-206(1), MCA.   Therefore,
if the mill levy vote does not take place until after April
15, then it is apparent that the school board may release all
of the nontenured teachers until the board knows whether it
will have the funds to rehire the nontenured teachers.
      Because petitioner relied on the alleged financial
condition grounds for the cancellation of her contract, she
saw no necessity in requesting reasons for her termination,
pursuant to 5 20-4-206(3) or filing notice of appeal
according to 10.6.103, ARM. Only after Keller was the only
nontenured teacher not to be rehired did she appeal her
termination. Allegedly, by this time, the reasons of the
board had changed and, therefore, 5 20-4-206(4), "financial
conditions," was no longer applicable.     While Rose Keller
waited to be rehired after the mill levy vote, her chance for
appeal passed.
      The statute requires a two-step process. First, if a
teacher is not going to be rehired for the subsequent year,
the board of trustees is required to give written notice to
the nontenured teacher. Section 20-4-206(l), MCA.     Second,
the nontenured teacher has the right to request the reasons
for her termination, but must make written request within ten
days. Section 2 0 - 4 - 2 0 6 ( 3 ) , MCA.      The letter received by
Keller on April 14, informed her that she was not being
rehired. Keller did not request reasons for her termination
within the required ten days. The statute gives a nontenured
teacher the opportunity to find out upon what grounds
termination is based.              Even in those cases where "financial
conditions"is the alleged reason for termination, nontenured
teachers cannot assume this is the reason for termination
unless they request and receive from the district trustees
written confirmation of the reasons for termination.
          Having failed to comply with the requirement of
5 2 0 - 4 - 2 0 6 ( 3 ) , MCA, Keller is not entitled to reasons for her
termination. We hold that the decision of the District Court
must be reversed and the findings of the Deputy County
Superintendent reinstated.
          Reversed.




We concur:
Mr. Justice William E. Hunt, Sr., dissenting:


     I dissent. The Madison County Deputy Superintendent of
Schools and the State Superintendent of public Instruction
both found that the Sheridan Public School Board of Trustees
terminated four nontenured teachers, including appellant Rose
Keller, due to the financial condition of the school
district. Keller justifiably relied on this reason for her
termination and did not request further justification.          In
fact, under S 2 0 - 4 - 2 0 6 ( 4 ) , MCA, the trustees were not
required to give her reasons for her termination if the
financial condition of the school district was indeed the
reason for her nonrenewal.            The majority, however, holds
that, because Keller did not request a statement of reason
within 10 days after notification of termination, she lost
all rights of appeal. Under this reasoning, whenever a board
of trustees decides not to renew contracts due to the
financial condition of the school district, in order to
protect appeal rights, all nontenured teachers must request a
statement of reasons--just in case the trustees did not mean
what they said when they adopted the resolution.             If a
teacher cannot rely on the resolution of a school board, what
can she rely on?
     I would affirm the ~istrictC

                                             Justice
