                                 NO. 88-22

                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1988



LORINDA BECK,
                 Petitioner and Appellant,
         -vs-
BOARD OF TRUSTEES, CASCADE COUNTY
SCHOOL DISTRICT NO. 1 and HIGH SCHOOL
DISTRICT A, and ED ARGENBRIGHT, SUPER-
INTENDENT OF PUBLIC INSTRUCTION,
                 Respondents.


APPEAL FROM:     District Court of the First Judicial District,
                 In and for the County of Lewis & Clark,
                 The Honorable Henry Loble, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Emilie Loring argued, Big Fork, Montana
         For Respondent:
                 Waite, Schuster & Larson; Leslie S Waite, I11 argued,
                 Great Falls, Montana
                 Rick Bartos, Office of Public Instruction, Helena,
                 Montana
         For Amicus Curiae:
                 Bruce W. Moerer, Mt. School Boards, Helena, Montana


                                    Submitted:   June 28, 1988
                                     Decided:    August 22, 1988

Filed:   m
         6
                                   Clerk
Mr. Justice R.   C. McDonough delivered the Opinion of the
Court.

     This appeal concerns a dispute over the renewal of
appellant Beck's teaching contract with Cascade County School
District (School District) .    Beck claimed tenure rights
denied by the School District.     The County Superintendent
initially ruled in favor of Beck. The State Superintendent
reversed, and the District Court affirmed the State
Superintendent. Beck appeals this decision.
     The School District cross-appeals the issue of whether
Beck's collective bargaining agreement (CBA) is admissible.
The County Superintendent and the State Superintendent agreed
that the CBA was irrelevant, and excluded the document. The
District Court reversed and allowed the CBA, but interpreted
the CBA against Beck.
     We reverse the District Court on the tenure issue, and
remand for further proceedings.        In regard to the
admissibility of the CBA, we affirm the District Court in
that we agree that the CBA is relevant. However, we hold
that the proper remedy for the County Superintendent's
exclusion of the CBA       is to remand to the County
Superintendent to consider the effect of the CBA on Beck's
tenure rights.
     The issue on appeal is whether the District Court abused
its discretion in sustaining the decision of the State
Superintendent of Public Instruction that appellant Beck was
a nontenured teacher in 1985-86?
     The issue on cross-appeal is whether the District Court
erred in overruling the County Superintendent's decision that
the CBA was inadmissible?
     The relevant facts and procedure are as follows: Beck
achieved tenure by teaching from 1980 to 1984. She was not
rehired for the 1984-85 school year, but she was rehired for
the 1985-86 school year.
     Beck testified before the County Superintendent that at
the end of the 1984 school year she was let go as part of a
reduction in force (RIF). Beck also contended that she was
recalled pursuant to her collective bargaining agreement when
the School District rehired her in 1985.      School District
Representative Jerry Hatch testified that Beck's employment
and tenure were terminated in 1984, and that she was simply
reemployed, without tenure, for the 1985-86 school year.
     In proceedings before the County Superintendent, Beck
attempted to bolster the contention that she was a tenured
teacher during the 1985-86 school year by pointing to the
resolution of a grievance she had filed against the School
District during the 1985-86 school year.  In the grievance
Beck had claimed she was entitled to reinstatement of her
past sick leave and seniority, and the School Board had
granted Beck's demands.
     When Beck sought to testify on the grievance in the
proceedings before the County Superintendent, the School
District objected on relevancy grounds, and the County
Superintendent allowed the testimony over the objection.
However, when President of the Great Falls Education
Association Terry Browning attempted to testify on the CRA
and the grievance, the School District objected and the
County Superintendent sustained the objection ruling that the
agreement was irrelevant to the tenure issue.
     In addition to the disagreements over the relevance and
effect of the grievance and the CBA, the parties disagree on
the proper interpretation of § 20-4-203, MCA. The County and
State Superintendents, as well as the District Court, also
have differing views.
     The County Superintendent concluded that 5 20-4-203,
MCA, controls the termination of the services of tenured
teachers, but not the termination of tenure itself.       The
State Superintendent reversed holding that both tenure and
services may be terminated pursuant to 5 20-4-203, MCA, and
that the method for termination prescribed by S 20-4-203,
MCA, (the trustees vote to terminate), cannot be modified by
contract. Thus, according to the State Superintendent, the
CBA was irrelevant, and Beck waived her right to contest loss
of tenure when she failed to object to her termination in
1984.
     The District Court affirmed on different grounds. First,
the District Court held the CBA relevant, and after analyzing
the agreement, the lower court concluded that termination of
Beck's tenure may be deduced from reading the CBA together
with the letter noticing Beck that her services would not be
needed for the 1984-85 school year. The lower court reasoned
that because the CBA differentiated between non-renewal, and
reduction in force (or layoff), and inasmuch as the letter
noticing that the contract would not be renewed used the term
non-renewal instead of reduction in force or layoff, Beck's
tenure was terminated.
     The District Court also analyzed the effect of S
20-4-203, MCA, on the issue of termination of tenure as
opposed to termination of services.        According to the
District Court, Beck could not be deemed a tenured teacher in
1986 because tenured teachers are elected from year to year
unless terminated.     See 5 20-4-203, MCA.     Beck was not
elected from year to year following the non-renewal of her
contract, and thus she was not a tenured teacher.
     Broadly speaking, "a contract made in violation of a
statute is illegal, hut the true rule seems to be that the
question is one of legislative intent". 17 C.J.S. Contracts
5 201 (1963). The School District contends that the State
Superintendent correctly ruled that S       20-4-203, MCA,
prohibits recall rights for tenured teachers terminated by
vote of the trustees. We reject this interpretation of the
statute.
     This Court has previously stated that:
          Tenure for teachers is unique in public
     contracts of employment.    Its basis is academic
     freedom; freedom within the law to teach the truth
     and to stimulate the thinking of free men in a free
     society without fear of reprisal.        Its scope
     assures, with certain exceptions, both continuing
     employment and economic security. Our society has
     long since determined the desirability of teacher
     tenure and this state has enacted legisl..ationto
     implement it as public policy.

Sibert v. Community College of Flathead County (1978), 1?9
Mont. 188, 191, 587 P.2d 26, 28. We hold here that given the
policy of providing for tenure; i.e., academic freedom,
continuing employment, and economic security, a school
district may contract with a teacher's union to allow
retention of tenure without violating the statute. Thus, the
District Court correctly reversed the County Superintendent
and the State Superintendent on the relevancy of the CBA.
     After finding the CBA admissible, the District Court
interpreted what it found to be the pertinent parts of the
CBA. The parties had no real opportunity to argue the effect
of the CBA.   The parties had no real opportunity to submit
what may be admissible evidence relating to the CBA. Under
these circumstances, the District Court abused its discretion
in not remanding the case to the County Superintendent.
Section   2-4-704,   MCA.   Thus,   we   remand   to   the   County
Superintendent for resolution of the issue of Beck's tenure
rights.



                                            Justice
We Concur:
