                               No.    89-552

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1990



CAROLYN BIRGENHEIER,
          Petitioner and Respondent,                         --
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TRUSTEES, YELLOWSTONE COUNTY SCHOOL                                   -- -.
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DISTRICT NO. 2, and ED ARGENBRIGHT,                                   C i
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Superintendent of Public Instruction,                                               ,
          Respondents and Appellants.                                 -.--    .,J




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APPEAL FROM:    District Court of the First Judicial District,
                In and for the County of Lewis and Clark,
                The Honorable Thomas Honzel, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Laurence R. Martin and Sol Lovas, Billings Montana
                Beda Lovitt, Chief Legal Counsel, Office of Public
                     Instruction, Helena, Montana
           For Respondent:
                Emilie Loring, Missoula Montana
           Amicus Attorneys:
               Catherine Swift, Montana School Boards Assn.,
               Helena, Montana


                                Submitted on Briefs:     March 16, 1990
                                               Decided: May 1 5 , 1990
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

     Plaintiff, a nontenure teacher, filed this action requesting
reinstatement, after her temporary, one-year contract was not
renewed. The District Court of the First Judicial District, Lewis
and Clark County, ruled that the School District's notice of non-
renewal did not properly comply with 820-4-206, MCA, and remanded
the matter to the School District for the District to provide
plaintiff with a statement of reasons for her termination.       The

School District appeals.   We affirm.
     We restate the issues for consideration as follows:
     1.   Did the School District follow adequate procedure in
terminating the nontenure teacher?
     2.   Even though plaintiff had been terminated, was she
entitled to a further statement of reasons under 520-4-206, MCA?
     On August 22, 1985, plaintiff, Carolyn Birgenheier, signed an
llAcknowledgement Temporary Appointment1'
                of                       with School District No.
2, Yellowstone County, Montana (School District), which stated:
    This will acknowledge my understanding that my
    appointment by the Billings Public Schools is temporary,
    and that I cannot presume reappointment. The term of
    this temporary appointment is from August 26, 1985 until
    June 7, 1986.
On September 10, 1985, she signed a one-year "Teacher's Contractw
with the School District as an elementary music teacher.        That
contract stated in pertinent part:
    1. That the teacher is hereby employed to teach, as and
    where assigned, in the schools of District for and during
    the school year beginning on or about 08/26/85 and
    terminating on or about 06/7/86.
     In April 1986, plaintiff received a letter from Billings
Public Schools which stated:
          Thank you for your service to Billings Public
     Schools during this school term. As you are aware, you
     were hired under a one-year contract for the 1985-86
     school year. Please be notified that your contract will
     have reached its term by the end of the current school
     year, and will not be renewed by the Board of Trustees.
          As we advertise to fill the position you now hold,
     we hope that you will feel free to make application for
     it. Thank you again for your year of service. We hope
     you have enjoyed your time with us.
     The "Master Agreement", the contract between the teachers and
the School District, provided as follows with regard to nontenure
teacher termination:
     Section 7        Non-Tenure Teacher Severance Policv:
           Subd. 1. Every non-tenured teacher shall be entitled to
           the following rights if his/her contract is not being
           renewed.
                 (a) The teacher shall be notified by the
                 Superintendent, in writing, that his or her contract
                 will not be renewed pursuant to Montana statutes.
                 (b) The notice shall state the specific reasons
                 for non-renewal.
                 (c) The teacher may appeal his/her non-renewal to
                 the Board of Trustees or a committee thereof, by
                 May 1. The Board, or its committee, shall reach a
                 decision within twenty (20) days of the submittal
                 of the appeal.
     Plaintiff gave her notice of non-renewal appeal to the Board
of Trustees pursuant to the Master Agreement.    The School District
affirmed the decision not to renew without a further statement of
reasons.   Plaintiff then appealed to the County Superintendent.
The Findings of Fact of the County Superintendent established that
the notice of non-renewal of nontenure teacher was timely; that
plaintiff's appeals to the School Board and County Superintendent
were timely; that plaintiff was non-renewed "for the reason:
 expiration of temporary one-year contract    ;   and that plaintiff
signed a standard teaching contract and an Acknowledgement of
Temporary Contract prior to the 1985-86 school term. The pertinent
conclusion of law by the County Superintendent was that the School
District was bound to provide nontenure. teachers with          some
indication of the reason or basis for the decision to terminate.
While not denominated either a finding of fact or conclusion of
law, the key conclusion on the part of the County Superintendent
was that "this Hearing Officer does agree with the Petitioner
[plaintiff] that this particular one-year contract stipulation is
an attempt to evade the 'specific reasont test of the Bridqer
case." Bridger Educ. Assln v. Board of Trustees (1984), 209 Mont.
31, 678 P.2d 659.   The County Superintendent then ordered that the
decision of the Board of Trustees was overturned and that the
plaintiff was reinstated with full salary and benefits for the
1986-1987 year.
     The School District appealed that decision to the State
Superintendent of Public Instruction (State Superintendent).     The
State Superintendent reversed the County Superintendent, holding
that this was "not a termination situation as covered by Bridqer,
but rather, a contractual issue resolved in accordance with the
terms of the agreement.I1     He pointed out that plaintiff was
notified and acknowledged that she accepted a temporary position
which would terminate at the end of the next school year and that
such acknowledgement was made in addition to the regular teaching
contract.    In addition he pointed out that at the end of the
temporary appointment she was notified that she was given the
opportunity to reapply for the position and was encouraged to do
so.    He further concluded there was nothing in the record to
support the County Superintendent's conclusion that the School
District was using temporary appointments to evade the requirement
of a statement of reasons.
      Plaintiff    requested   judicial   review   of   the   State
Superintendent's decision, contending that the State Superintendent
erred in concluding that Bridser did not apply; that the State
Superintendent erred in ignoring the requirements of 5 20-4-206,
MCA, that terminated nontenure teachers be given the reasons for
termination; and    that because   all teachers are on one-year
contracts, the expiration of such a contract is not a Itreasonl1for
termination.
      The District Court concluded as follows:
      [elven though the school district may be immune from suit
      under Section 2-9-111, MCA, it still must comply with the
      requirements of Section 20-4-206(3), MCA, and the Bridser
      decision. Under Bridser, a school district must provide
      a nontenured teacher with a statement of reasons which
      states what undesirable qualities merit a refusal to
      enter into a further contract. Since the school district
      did not provide such a statement, it is the opinion of
      the Court that under Bridser the matter must be remanded
      to the school district for a statement which complies
      with that decision.
The District Court ordered a remand to the School District for a
statement of reasons. The District Court did not address the issue
of the reinstatement of the plaintiff.     From that decision, the
School District appeals.
        Did   the   School    District   follow   adequate   procedure   in
terminating the nontenure teacher?
        It is important that we consider the specific provisions which
apply to the termination of a nontenure teacher.             Section 20-4-
206, MCA, as set forth in 1989, has not been changed since the 1975
amendment, and in pertinent part states:
              (1) The trustees shall provide written notice by
     May 1 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.


          (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.
     After a consideration of the argument by counsel, including
the references to Bridqer, we conclude that it is necessary for us
to restate our interpretation of 5 20-4-206, MCA, as it applies to
nontenure teachers.          Under that statute, the School Board was
required to give written notice to the plaintiff nontenure teacher
by May 1.     Had such notice not been given, the nontenure teacher
would have been automatically reelected for the following school
year.     Here the School District timely gave the required notice.
As a result of the giving of that notice, the plaintiff was
terminated for the ensuing school fiscal year. Under the statute,
a statement of reasons was not required in order to effectively
terminate the plaintiff. We emphasize that under the statute, the
notice of termination is sufficient even in the absence of any
statement of reasons.   Under the provisions of     5 20-4-206, MCA,
we hold that the School Board properly gave written notice by May
1 to the plaintiff of her termination, and that such notice was
effective to terminate the contract relationship between the
plaintiff and the School District so that she would not be
automatically reelected for the following year.
                                I1

     Even though plaintiff had been terminated, was she entitled
to a further statement of reasons under   §   20-4-206, MCA?
     As mentioned, the School District advised the plaintiff that
the reason for her non-renewal was that her temporary one-year
contract had expired.    The School District maintains that is a
sufficient statement under the statute.
     Plaintiff contends that all teachers are on one-year contracts
so that the expiration of a one-year contract is not a Itreason"for
termination.   Her argument essentially is grounded in our Bridser
decision.   She believes that decision requires a more enlarged
statement of reasons.
     It is apparent that Bridser has caused interpretive problems
for the parties.   In Bridser, the key statement was:

     The non-tenured teacher is entitled to a notice which
     states what undesirable qualities merit a refusal to
     enter into a further contract.
That statement was not required for the holding in Bridser.      In
addition, it is somewhat inaccurate.      It suggests that in the
                                7
absence of undesirable qualities which merit a refusal to enter
into a further contract, a nontenure teacher may not be terminated.
That is not a requirment of     §   20-4-206, MCA.   That section only
requires a statement in writing of the reasons for termination upon
request of the nontenure teacher.          We therefore overrule the
statement in Bridser that a nontenure teacher is entitled to notice
which states what undesirable qualities merit a refusal to enter
into a further contract. If there are undesirable qualities on the
part of the teacher, it would be reasonable for a school district
to inform the teacher of those undesirable qualities; but there is
no statutory standard that the reasons must be somehow sufficient
to merit a refusal to enter into a contract. We conclude and hold
that under 3 20-4-206, MCA, upon written request, a teacher is
entitled to a statement in writing of the reasons for termination
of employment.   As we have mentioned, 5 20-4-206, MCA, does not
contain any specific requirements with regard to the extent or
nature of the statement of reasons.         In a similar manner, the
Master Agreement does not contain any such specific requirements.
We conclude that under the statute the trustees are obligated to
furnish a statement stating the "reasons for terminationvvin
reasonable detail.
    We note that     §   20-4-206(4),   MCA, provides that when the
financial condition of the school district requires a reduction in
the number of teachers and the reason for the termination is the
reduction in the number of teachers employed, the provisions of
this section do not apply.      This case does not involve such a
reduction in force.
     We recognize that the School District may have hesitated to
give details of its reasons in order to eliminate an argument under
Bridser that the reasons were not sufficient to justify the non-
renewal of the teacher. We trust that concern has been eliminated
by this opinion.      While we have concluded that a teacher is
entitled to a statement setting forth reasons for termination of
employment in reasonable detail, we emphasize that the inadequacy
of such a statement will not in any way affect the termination,
assuming that timely notice of termination was given.
     We   conclude that under the facts of this case, it is
reasonable to require the School District to give a further
explanation of the reasons for termination in view of the request
by the teacher.    We therefore remand to the District Court, and
ultimately to the School District, for the furnishing to the
plaintiff of a statement in writing of the reasons for the
termination of her employment in reasonable detail, in addition to
the previous reason given by the School District, that being
expiration of the temporary one-year contract.
     Affirmed.



We Concur:
Justice John Conway Harrison, dissenting.

     I dissent.    I can find no reason to remand this case to the
School District.    The plaintiff was hired for a one-year period

and was later given the opportunity and was encouraged to reapply
for the job.
