                                No. 12410

      I N THE SUPREME C U T O THE STATE O MONTANA
                       OR    F           F

                                    1973



FLORENCE SCHWEIGERT,

                        P l a i n t i f f and Appellant,



BOARD O TRUSTEES O EVERGREEN SCHOOL
       F           F
DISTRICT # 50, KALISPELL, M N A A
                           OTN,

                        Defendants and Respondents.



Appeal from:     D i s t r i c t Court of t h e Eleventh J u d i c i a l D i s t r i c t ,
                 Honorable Robert C. Sykes , Judge p r e s i d i n g .

Counsel o f Record :

    For Appellant :

          White, Vadala & S p r i n g e r , K a l i s p e l l , Montana
          David L. A s t l e argued, K a l i s p e l l , Montana

    For Respondents:

          Hon. Robert L. Woodahl, Attorney General, Helena,
           Montana
          Chadwick Smith, argued, Helena, Montana
          H. James Oleson appeared, County Attorney, K a l i s p e l l ,
           Montana



                                             Submitted:        September 28, 1973

                                                Decided :    bCf 11    ?gn
Filed :   OCT 1 11973
M r . J u s t i c e Frank I. Haswell d e l i v e r e d t h e Opinion of t h e Court.

        This i s an a c t i o n by a teacher a g a i n s t a school board seeking
reinstatement of h e r employment.                    The d i s t r i c t c o u r t of Flathead
County, t h e Hon. Robert C . Sykes, d i s t r i c t judge, granted t h e
school board's motion t o dismiss t h e a c t i o n .                    P l a i n t i f f appeals
from t h e o r d e r of d i s m i s s a l .
        P l a i n t i f f i s Florence Schweigert, a t e a c h e r who had been
employed i n t h e Evergreen School near K a l i s p e l l i n Flathead County,
Montana, f o r approximately four years immediately preceding t h e
present controversy.               Defendant i s t h e Board of Trustees of Ever-
green School D i s t r i c t #50, which d i d n o t r e h i r e h e r f o r t h e 1972-
1973 school year.
        The f a c t s of t h e controversy a r e contained i n a w r i t t e n
s t i p u l a t i o n , i n t h e employment c o n t r a c t s a t t a c h e d t o t h e o r i g i n a l
complaint, and i n t h e a f f i d a v i t s a t t a c h e d t o t h e amended complaint.
P r i o r t o March 14, 1972, t h e school superintendent, who was a l s o
t h e p r i n c i p a l of t h e Evergreen grade school, advised t h e Board
t h a t t h e r e would be an i n s u f f i c i e n t number of s t u d e n t s t o j u s t i f y
continuing two s p e c i a l education c l a s s e s , suggested t h a t one of
such c l a s s e s be discontinued, and t h a t one of t h e two s p e c i a l
education t e a c h e r s ' c o n t r a c t s n o t be renewed f o r t h e coming school
year.
        O March 14, 1972, t h e Board decided t h i s recommendation was
         n
i n t h e b e s t i n t e r e s t s of t h e school d i s t r i c t and unanimously voted
t o d i s c o n t i n u e t h e c l a s s of p l a i n t i f f Florence Schweigert and n o t
renew h e r c o n t r a c t .    Two days l a t e r t h e school superintendent met
w i t h p l a i n t i f f and informed h e r of t h e d e c i s i o n of t h e school board.
A t t h a t time p l a i n t i f f i n d i c a t e d she would l i k e t o d i s c u s s t h i s
d e c i s i o n with t h e Board, b u t t h e next day p l a i n t i f f o r a l l y informed
him t h a t she had changed h e r mind and d i d n o t d e s i r e t o meet with
t h e Board.
        On March 22 t h e chairman of t h e school board n o t i f i e d p l a i n -

t i f f by c e r t i f i e d l e t t e r of t h e ~ o a r d ' sd e c i s i o n t o discontinue
h e r s p e c i a l education c l a s s and n o t t o o f f e r h e r a teaching c o n t r a c t
f o r t h e coming school year.
        According t o a f f i d a v i t s attached t o t h e amended complaint, on
o r about May 14 a meeting was held i n t h e home of t h e chairman of
t h e Board t o d i s c u s s p l a i n t i f f ' s c o n t r a c t .   Present a t t h i s meeting
were a l l members of t h e school board and a number of parents of
c h i l d r e n who had attended p l a i n t i f f ' s c l a s s .        After a l l present
had given t h e i r views, t h e Board i n d i c a t e d p l a i n t i f f would be
r e h i r e d ; t h e chairman of t h e Board s t a t e d t h a t t h e r e g u l a r meeting
would be held t h e following n i g h t and p l a i n t i f f would be given a
c o n t r a c t f o r t h e coming year.           P l a i n t i f f was n o t i f i e d of t h e r e -
s u l t s of t h i s meeting by one of t h e parents.
        On May 15 t h e Board held a s p e c i a l meeting t o d i s c u s s i t s
p r i o r action       concerning p l a i n t i f f , i t s reasons why t h e a c t i o n
was taken, and so f o r t h .              The meeting was open t o t h e public and
p l a i n t i f f was i n attendance.            A t t h e conclusion of t h i s meeting t h e
Board reaffirmed i t s o r i g i n a l d e c i s i o n t o discontinue Mrs. Schwei-
g e r t ' s s p e c i a l education c l a s s and not t o o f f e r h e r a c o n t r a c t f o r
t h e coming school year.                P l a i n t i f f informed a member of t h e Board
t h a t she d i d not need t h i s job and t h a t she had o t h e r o f f e r s out-
s i d e t h e school d i s t r i c t .
        On May 17 p l a i n t i f f served t h e Board with a p e t i t i o n f o r a

formal hearing w i t h i n t e n days t o reconsider i t s termination a c t i o n
on t h e s e grounds:          (1) That t h e l e t t e r of March 23 from t h e c h a i r -
man of t h e school board gave i n s u f f i c i e n t reasons f o r termination
of a tenure t e a c h e r , and (2) t h a t t h e meeting of t h e Board on May
15 was i n s u f f i c i e n t i n t h a t i t was a closed meeting and p l a i n t i f f
was n o t enabled t o b r i n g f o r t h evidence concerning h e r c h a r a c t e r -
i s t i c s and p a s t achievements a s a teacher and t h e meeting d i d n o t
produce evidence s u f f i c i e n t t o terminate t h e s e r v i c e s of a tenure
teacher.
     Shortly after May 17 the county attorney orally and on June
13 in writing, advised plaintiff's attorney of denial of plaintiff's
petition of May 17.
     On June 6 plaintiff's attorney conferred with a representative
of the State Superintendent of Schools '1 and was given the distinct
impression" that that office would not enter into this matter and
that it should be resolved in the district court.
     On June 13 plaintiff requested a formal hearing of the matter
from the county superintendent of schools and was advised on June
20 that the county superintendent would take no action in the
matter because the lapse of time since April 1 precluded her legally
from doing anything.
     It was further stipulated that plaintiff was a tenure teacher
with the school district and that the other special education
teacher whose class was continued was not a certified teacher and
was without tenure.
     On June 23, 1972, the instant action was filed in the district
court of Flathead County.     The relief sought by plaintiff was a
court order compelling the Board to reinstate plaintiff and "such
other relief as this Court deems proper".     Subsequently plaintiff
filed an amended complaint which alleged,additionally, that at the
school board meeting of May 14 the Board assured the parents it
would rehire plaintiff, attached were parents' affidavits to that
effect, and claimed the Board had no jurisdiction thereafter to
terminate plaintiff.     The Board filed a motion to dismiss the amended
complaint based principally on plaintiff's failure to timely comply
with her administrative remedies and failure to exhaust the same
prior to filing a court action.
     The district court granted the ~oard's motion to dismiss on
the ground that plaintiff failed to comply with her administrative
remedies within the time allowed by law barring her right to relief
in the district court.     Plaintiff appeals from this order of dis-
missal.
     We summarize all issues assigned for review into one con-
trolling question, viz:   Are plaintiff's rights and remedies in
the instant action foreclosed by her failure to timely appeal
from the ~oard'sdecision not to renew her contract?
     The applicable statute is section 75-6104, R.C.M. 1947, which
provides :
     "Termination of tenure teacher services. Whenever
     the trustees of any district resolve to terminate
     the services of a tenure teacher under the provisions
     of subsection (1) of section 75-6103, they shall notify
     such teacher in writing before the first day of April
     of such termination. Any tenure teacher who receives
     a notice of termination may request, in writing ten (10)
     days after the receipt of such notice, a written state-
     ment declaring clearly and explicitly the specific reason
     or reasons for the termination of his services, and the
     trustees shall supply such statement within ten (10)
     days after the request. Within ten (10) days after the
     tenure teacher receives the statement of reasons for
     termination, he may request in writing a hearing before
     the trustees to reconsider their termination action.
     When a hearing is requested, the trustees shall conduct
     such a hearing and reconsider their termination action
     within ten ( 0 days after the receipt of the request
                 1)
     for a hearing. If the trustees affirm their decision to
     terminate the teacher's employment, the tenure teacher
     may appeal their decision to the county superintendent
     and, subsequently, either the teacher or the trustees may
     appeal to the superintendent of public instruction under
     the provision for the appeal of controversies in this
     Title. I I
     The certified letter of March 22 from the chairman of the
school board to plaintiff was legally sufficient as a notice of
termination of the services of a tenure teacher pursuant to the
foregoing statute. Eastman v. School District No. 1, 120 Mont. 63,
180 P.2d 472.   The statute on its face does not require the notice
to contain a statement of the appeal procedure.   The certified
letter of March 22 contained "a written statanent declaring clearly
and explicitly the specific reason or reasons for the termination
of [her] services" as required by statute, viz:   "This action
was deemed necessary because the drop in enrollment of this class
will not merit employing a teacher for this group."
     If plaintiff wished further specifics, for example why she as
a tenure teacher was not employed in preference to the other non-
certified, nontenured teacher to teach the latter's special education
class for the younger students, the statutory procedure of a
request in writing within ten days and a statement of reasons by
the school board within ten days thereafter was available. No
demand by plaintiff in writing for a hearing before the trustees
was made until May 17, some forty-five days after notification of
termination. As the statute requires written demand for hearing
within ten days of notification, her right to a hearing under the
statute had expired.
     The meeting of May 14 at the home of the chairman of the
school board had no legal effect.   Day v. School District No. 21,
98 Mont. 207, 38 P.2d 595; State ex rel. Howard v. Ireland, 114
Mont. 488, 138 P.2d 569.   The school board meeting of May 15
reaffirming the ~oard's original decision to terminate plaintiff's
employment could not revive the expired rights of plaintiff to a
hearing and reconsideration or start the statutory time limitation
running anew, See rationale in State v. Wanamaker, 47 Wash.2d 794,
289 P.2d 697; Robe1 v. Highline Public Schools District No. 401,
65 Wash.2d 477, 398 P.2d 1.
     Having failed to pursue her statutory administrative remedies
within the time allowed by law, plaintiff's right to contest the
termination of her employment as a tenured teacher was at an end.
The statutory time limitations are mandatory to provide for prompt
resolution of teacher employment controversies in the public interest
as well as in the respective interests of the principals involved.
     The judgment of the district court is affirmed.




                                        Justice
/ /   chief Justice




      Hon. R.D. ~ c ~ h i l l i ~District
                                  s,
      Judge, sitting for Justice John
      Conway Harrison.
