                                           No. 04-675

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2006 MT 83


SCOBEY SCHOOL DISTRICT,

              Respondent and Appellant,

         v.

MIKE RADAKOVICH,

              Petitioner and Respondent.




APPEAL FROM:         The District Court of the Fifteenth Judicial District,
                     In and For the County of Daniels, Cause No. DV-10-2003-16,
                     Honorable Richard A. Simonton, Presiding Judge

COUNSEL OF RECORD:

              For Appellant:

                     Jeffrey M. Hindoien, Gough, Shanahan, Johnson & Waterman,
                     Helena, Montana

              For Respondent:

                     Laura Christoffersen, Knierim, Fewer & Christoffersen, P.C.,
                     Culbertson, Montana

              For Amicus Curiae:

                     Karl J. Englund, Attorney at Law, Missoula, Montana (MEA-MFT)



                                                         Submitted on Briefs: July 20, 2005

                                                                     Decided: April 25, 2006

Filed:

                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Appellant Scobey School District appeals from the order of the Fifteenth Judicial

District Court reversing the Daniels County Superintendent’s decision upholding the

Scobey School District’s termination of Mike Radakovich as a tenured teacher. We

reverse.

¶2     We consider the following issue on appeal:

¶3     Did the District Court err in reversing the Daniels County Superintendent’s

decision upholding the Scobey School District’s termination of a tenured teacher?

                                      BACKGROUND

¶4     Hired in 1987 by the Scobey School District (District), Respondent Mike

Radakovich (Radakovich) taught social studies at Scobey High School until 1994.

During this period, Radakovich possessed State certification and endorsement in only one

subject area, social studies. As a result, he did not teach other classes during his time at

the District.

¶5     In late 1993 and early 1994, District Superintendent of Schools Dustin Hill (Hill)

assessed the District’s financial situation and determined that expenditures had to be

reduced for the next fiscal year. While estimates fluctuated, Hill indicated that between

$98,000 and $114,000 had to be cut from the District’s budget.              As such, Hill

recommended that the Scobey School Board (Board) reduce staffing costs in the

District’s schools by approximately $60,000. He met with Scobey High School Principal

George Rider to discuss staff reductions at the high school.


                                            2
¶6     After his meeting with Principal Rider, Hill met with the Scobey High School

faculty to discuss the impending Reduction in Force (RIF), and provided the staff with

the criteria that would be used to make the RIF. The worksheet provided to the staff read

in pertinent part:

       When considering a R.I.F. in the HIGH SCHOOL, the following criteria
       will be considered:

       1. Seniority and evaluations where possible.

       2. Endorsements in the programs we offer.

       a) Multiple endorsements will be preferred due to the versatility of using
       teachers in more than one area.

       b) Total number of students assigned to teachers must be consistent with
       accreditation standards. e.g. Teachers in a significant writing program
       maximum of 100 students.

¶7     After evaluating program needs, Hill recommended to the Board a restructuring of

teaching positions based upon the certifications of the teaching staff. As part thereof, Hill

recommended that the Board terminate Radakovich.                The letter recommending

Radakovich’s termination, dated March 21, 1994, outlined the reasons behind the

recommendation, including recent school funding changes and Radakovich’s lack of

multiple-subject endorsements.      Thereafter, the Board notified Radakovich of the

recommendation, and pursuant to statute, scheduled a hearing regarding the dismissal.

After the hearing, held on April 12, 1994, the Board voted unanimously to accept

Superintendent Hill’s recommendation, and took formal action to terminate Radakovich’s




                                          3
employment. Pursuant to the restructuring, the District also formally terminated at least

one other teacher employed by the District.

¶8     As two other social studies teachers, one a tenured teacher junior to Radakovich

and the other a non-tenured teacher, were retained by the District under the restructuring,

Radakovich challenged his termination in binding arbitration under the Collective

Bargaining Agreement (CBA) between the District and the Scobey MEA. Following

arbitration, the arbitrator affirmed Radakovich’s dismissal, and Radakovich thereafter

sought relief from the County Superintendent of Schools and, ultimately, the State

Superintendent of Public Instruction, pursuant to § 20-4-204, MCA (1993). In each

instance he argued that his termination violated both § 20-4-203, MCA (1993), and the

CBA. Both superintendents affirmed his dismissal. However, upon judicial review, the

District Court reversed, finding that Radakovich’s rights under § 20-4-203, MCA (1993),

had been violated, and that his termination violated the CBA. Thereafter, the District

appealed to this Court.

¶9     In July of 2000, we reversed the order of the District Court, and remanded the

matter back to that court with instructions to remand to the County Superintendent for

further proceedings. Radakovich v. Board of Trustees, 2000 MT 176N, 302 Mont. 537,

12 P.3d 425 (Radakovich I). We determined that (1) the District Court had improperly

reviewed the arbitrator’s finding that Radakovich’s termination did not violate the CBA,

and (2) the County Superintendent had not only failed to enter appropriately supported

and reasoned findings of fact and conclusions of law as required by Baldridge v. Board of

                                         4
Trustees (1994), 264 Mont. 199, 870 P.2d 711 (Baldridge I), but had also failed to

address Radakovich’s contention that his termination violated § 20-4-203, MCA (1993).

On remand, the County Superintendent was required to enter appropriate findings of fact

and conclusions of law, and to rule on the merits of Radakovich’s § 20-4-203, MCA

(1993), claim. Radakovich I, ¶ 29.

¶10   Following remand, and in accordance with Radakovich I, the County

Superintendent once again reviewed Radakovich’s appeal, made detailed findings of fact

and conclusions of law, and again concluded that the District had properly terminated his

contract. On appeal, the State Superintendent of Public Instruction affirmed. However,

the District Court again reversed, concluding that the use of the “multiple endorsements”

criteria violated both the CBA and § 20-4-203, MCA (1993), and further, that the

“multiple endorsements” criteria was unfairly applied.

¶11   Appellant Scobey School District appeals.

                             STANDARDS OF REVIEW

¶12   A tenured teacher has the right to appeal his or her dismissal to the County

Superintendent of Schools. Section 20-4-204(5), MCA (1993). Pursuant to §§ 20-4-

204(5), MCA (1993), and 2-4-623, MCA (1993), the County Superintendent, in turn,

must make concise and explicit findings of fact as well as conclusions of law. See

Baldridge I, 264 Mont. at 206, 870 P.2d at 715. In a case involving the dismissal of a

tenured teacher, the County Superintendent is the trier of fact. Baldridge v. Board of

Trustees (1997), 287 Mont. 53, 58, 951 P.2d 1343, 1346 (Baldridge II).

                                        5
¶13   Upon final decision of a County Superintendent, a case may be appealed by either

party to the State Superintendent.     Section 20-4-204(6), MCA (1993).        The State

Superintendent reviews the decision of the County Superintendent pursuant to Rule

10.16.125, ARM. On review, the State Superintendent is confined to the record, and may

not substitute his or her judgment for that of the County Superintendent as to the weight

of the evidence on questions of fact. Baldridge I, 264 Mont. at 207, 870 P.2d at 716; see

also Rule 10.16.125, ARM.

¶14   “In the event of judicial review of the state superintendent’s decision, a district

court applies the standards contained in § 2-4-704, MCA.” Baldridge II, 287 Mont. at 58,

951 P.2d at 1346, citing Baldridge I, 264 Mont. at 209, 870 P.2d at 717. However,

      a district court must first decide whether the county superintendent’s
      findings and conclusions were properly supported because, unless and until
      it does so, it cannot determine whether the state superintendent properly
      reviewed and either affirmed or reversed the county superintendent’s
      decision. Baldridge I, 870 P.2d at 717-18.

Baldridge II, 287 Mont. at 58, 951 P.2d at 1346.

¶15   Finally, this Court reviews administrative findings of fact to determine whether the

findings are clearly erroneous. Baldridge I, 264 Mont. at 205, 870 P.2d at 714. We

review conclusions of law to determine whether they are correct. Baldridge I, 264 Mont.

at 205, 870 P.2d at 714-15.

      [B]ecause the County Superintendent is the trier of fact under § 2-4-623,
      MCA, we must focus initially on the County Superintendent’s findings and
      conclusions before we can determine whether the State Superintendent or
      the District Court erred thereafter.

Baldridge II, 287 Mont. at 58, 951 P.2d at 1346.
                                        6
                                    DISCUSSION

¶16      After the first appeal to this Court, we remanded to the District Court with

instructions to remand to the County Superintendent for more thorough fact-finding as

required by § 2-4-623, MCA (1993). Radakovich I, ¶ 29. We also instructed the County

Superintendent to evaluate Radakovich’s claim under § 20-4-203, MCA (1993), and to

decide whether objective RIF criteria were fairly applied by the District. Radakovich I,

¶ 29.

¶17      The District Court concluded that the Daniels County Superintendent had

generated “concise and explicit statements of the underlying facts supporting his

findings,” and therefore fulfilled its duties under § 2-4-623, MCA. After review, we

agree that the County Superintendent complied with § 2-4-623, MCA. Further, the

County Superintendent entered three critical conclusions of law: that (1) there was “good

cause” for the RIF, (2) Radakovich’s termination did not violate § 20-4-203, MCA, and

(3) the use of “multiple endorsements” as a criterion was not only objective, but fairly

applied by the District. Based upon those conclusions, the County Superintendent ruled

in favor of the District, and upheld Radakovich’s dismissal. Ultimately, the District

Court concluded that the County Superintendent’s conclusions of law were “erroneous”

and reversed. For the following reasons, we believe the District Court’s reversal was in

error.




                                        7
                             Was there good cause for the RIF?

¶18    “A teacher’s tenure is a substantial, valuable and beneficial right, which cannot be

taken away except for good cause.” State v. District Court, Fergus County (1954), 128

Mont. 353, 361, 275 P.2d 209, 214. However, it is also clear that the tenure right

       must be balanced against the school board’s “requisite authority to manage
       the school district in a financially-responsible manner. This includes
       eliminating certain programs and activities, and thereby terminating or
       reassigning personnel.”

Massey v. Argenbright (1984), 211 Mont. 331, 336, 683 P.2d 1332, 1334, citing Sorlie v.

School Dist. No. 2 (1983), 205 Mont. 22, 29, 667 P.2d 400, 403.

¶19    In its revised findings of fact and conclusions of law, the County Superintendent

determined that the District’s undisputed reduction in general fund revenue constituted

“good cause” for the RIF. This conclusion followed from Sorlie, where a school district,

because of a failure in state and federal funding, cut an administrative position within the

district which had recently been awarded to a teacher, and reassigned the teacher. Sorlie,

205 Mont. at 25, 667 P.2d at 401. Implicit within Sorlie’s holding is the principle that a

reduction in funding will constitute “good cause” for an RIF. Sorlie, 205 Mont. at 28,

667 P.2d at 403 (a reassignment “for legitimate financial constraints . . . is justifiable and

not contrary to tenure laws”); see also Massey, 211 Mont. at 336, 683 P.2d at 1334, and

§ 20-4-203(2), MCA (preserving the tenure status of a teacher RIFed because of a

district’s financial condition).

¶20    In reversing the decision of the County Superintendent, the District Court

concluded that the County Superintendent’s determination that there was good cause for
                                          8
Radakovich’s termination was “erroneous,” and in violation of § 20-4-203, MCA (1993),

despite the undisputed fact that the district’s reduced funding required staff reductions. It

is apparent that the District Court’s analysis conflated the “good cause” requirement with

the application of §§ 20-4-203 and 20-4-204, MCA (1993).

¶21    “Good cause” must be established as a threshold requirement before a district may

dismiss a tenured teacher. See Massey, 211 Mont. at 336, 683 P.2d at 1334. If “good

cause” to dismiss a tenured teacher exists, then a district must follow the procedures

outlined in §§ 20-4-203 and 20-4-204, MCA (1993), to effectuate the teacher’s dismissal.

As discussed above, we held in Sorlie that a reduction in funding constitutes “good

cause” for a RIF.       The District Court, however, found fault with the County

Superintendent’s “good cause” determination by reasoning that the RIF violated § 20-4-

203, MCA (1993). This was incorrect. While § 20-4-203, MCA (1993), concerns tenure

and how it is earned, it says nothing about what constitutes “good cause.”

¶22    The County Superintendent’s Conclusion of Law Number 7, which determined

that the financial circumstances facing the Board of Trustees constituted “good cause” for

a RIF, was correct. See Sorlie, 205 Mont. at 28, 667 P.2d at 403. As such, the District

Court’s reversal of Conclusion of Law Number 7 was error.

         Was Radakovich’s RIF in contravention of § 20-4-203, MCA (1993)?

¶23    The County Superintendent concluded that “Mr. Radakovich’s RIF was not

undertaken in violation of any ‘bumping’ right he may have had under § 20-4-203, MCA

(1993), or Massey and Holmes.”        The County Superintendent reasoned that (1) the

                                          9
District had the right to reduce its staff as a result of the decrease in funding, (2) it had the

right to restructure the District in such a way as to eliminate the full-time social studies

position at Scobey High School, while creating positions utilizing multiple-subject

teaching responsibilities, and therefore (3) it had the right to RIF Radakovich, a teacher

with certification in only one subject.

¶24    The District Court disagreed, determining that the RIF was “contrary to Section

20-4-203, MCA,” because (1) the use of “multiple endorsements” as a criterion during

the District restructuring undermined tenure, and (2) the RIF violated the CBA’s

provisions governing teacher-district disputes and contracts.              We turn to these

conclusions.

¶25    Section 20-4-203, MCA (1993), reads as follows:

              20-4-203. Teacher Tenure. (1) Except as provided in 20-4-208,
       whenever a teacher has been elected by the offer and acceptance of a
       contract for the fourth consecutive year of employment by a district in a
       position requiring teacher certification except as a district superintendent or
       specialist, the teacher is considered to be reelected from year to year
       thereafter as a tenure teacher at the same salary and in the same or a
       comparable position of employment as that provided by the last executed
       contract with the teacher unless the trustees resolve by majority vote of
       their membership to terminate the services of the teacher in accordance
       with the provisions of 20-4-204.

Although this section describes how the tenure right is attained and operates, it says

nothing about the corresponding “bumping” right referred to by both the County

Superintendent and the District Court. We have held that “bumping rights” protect a

tenured teacher from termination in RIF situations by allowing a tenured teacher to

unseat a non-tenured teacher in a position for which the tenured teacher is also qualified.
                                           10
See Harris v. Bailey (1990), 244 Mont. 279, 283, 798 P.2d 96, 99 (“a tenured teacher

who is discharged as part of a reduction of force has ‘bumping rights,’ under certain

conditions, over nontenured teachers.”); Holmes v. Madison & Jefferson Counties (1990),

243 Mont 263, 267, 792 P.2d 10, 13 ( “we hold that when the school board eliminated

Mr. Holmes’ position, § 20-4-203, MCA, obligated it to offer Holmes a comparable

teaching position held by a non-tenured teacher.”); see also Massey, 211 Mont. 331, 683

P.2d 1332. Further, neither party here disputes that the bumping right also allows a

senior tenured teacher to unseat a junior tenured teacher.

¶26    Taking exception to the order of the District Court, the District argues that it

properly RIFed Radakovich under § 20-4-203, MCA (1993), because Radakovich was

not qualified to undertake any of the positions, with the accompanying multi-certification

requirements, which were filled by junior-tenured or non-tenured teachers after the

restructuring. Radakovich, on the other hand, argues that the District’s restructuring

itself, and not necessarily the post-restructuring decision to terminate him as not certified

to teach the available positions, violated his tenure protections.          He argues that

restructuring in such a way which considers the number of endorsements possessed by

teachers, and which therefore allows the retention of non-tenured and junior-tenured

teachers over more senior tenured teachers, contravenes § 20-4-203, MCA (1993), as

well as this Court’s decisions in Massey, Holmes, and Harris. 1         The District Court


       1
         The effect of restructuring in this case was to eliminate the full-time, single-
certification social studies position at Scobey High School in favor of teaching positions
which required multiple-subject certification. Thus, after restructuring, a health teacher,
                                         11
appears to have agreed with Radakovich, though in a manner clouded with discussion on

the merits of the CBA. However, we must disagree with Radakovich’s argument.

¶27    First, Radakovich asserts that Massey, Holmes, and Harris require a school

district, when faced with economic restructuring and impending RIFs, to absolutely

protect tenure and seniority rights during the restructuring process. In other words, a

school district can restructure only in ways that would ensure the employment of tenured

teachers, beginning by protecting the most senior tenured teacher, down to the most

junior tenured teacher, before restructuring options which utilized nontenured teachers

could be implemented. Our cases, however, do not stand for such a broadly sweeping

interpretation of the tenure right.

¶28    In Massey, a school district dismissed a tenured teacher holding endorsements in

three subjects, including P.E., in favor of non-tenured P.E. teachers who had majored in

physical education in college. The Board justified the tenured teacher’s dismissal by

citing its policy to only hire teachers to teach in subjects in which they majored in

college. We, however, disagreed, and held that the state tenure laws, including § 20-4-

203, MCA, protected the dismissed teacher under the circumstances, since the dismissed

tenured teacher was otherwise certified to teach a position held by a non-tenured teacher

after the RIF. Massey, 211 Mont. at 337, 683 P.2d at 1335. An internal board policy in


math teacher, and physical education teacher at Scobey High were each asked to teach
social studies classes in addition to their regular subjects. Each of the teachers who took
on social studies classes was certified and endorsed to teach social studies as well as their
other assigned teaching subject. Radakovich, on the other hand, was certified only in
social studies, and was therefore not qualified to fill any of the post-restructure positions.
                                          12
favor of a physical education major could not, after all, circumvent state tenure

protections.

¶29    In Holmes, a school board RIFed a principal qualified to teach in areas taught by

non-tenured faculty because the principal did not posses actual paper certification from

the state. While the principal obtained that certification days later, the school board

continued the termination proceedings. It being undisputed that the principal was at all

times qualified to teach the positions taught by non-tenured faculty, we held that “§ 20-4-

203, MCA obligated [the board] to offer Holmes a comparable teaching position held by

a nontenured teacher,” noting that “the issuance of the certificate showing Holmes’

endorsements only memorialized the qualifications that Holmes was known to possess”

and that Holmes had nonetheless timely met the certification requirement. Holmes, 243

Mont. at 267, 792 P.2d at 13.

¶30    Finally, in Harris, a school board voted to eliminate a full-time physical education

position, and dismissed the tenured teacher who had formerly held the position. Harris,

241 Mont. at 276, 786 P.2d at 1165. However, the school board then created a half-time

P.E. position, which it, in turn, offered to a different teacher. We concluded the school

board’s actions were improper, holding that “to interpret the Board’s action as

eliminating an old position and creating a new position involves a hypertechnical

distinction that could seriously threaten the value of tenure,” Harris, 241 Mont. at 281,

786 P.2d at 1168, and affirmed an administrative decision requiring the school board to

offer the teacher the half-time physical education position.

                                         13
¶31    The key factor of the holdings in Massey, Holmes, and Harris is that the tenured

teacher was qualified to teach the available position, but, in each case, the district gave

the position to another, thereby violating the qualified teacher’s tenure rights. These

cases thus instruct that a tenured teacher must be retained over a non-tenured teacher

when a position is open for which both teachers are qualified. If a board fails to do so, it

violates § 20-4-203, MCA. Importantly, however, none of these cases addressed the

application of tenure upon a district’s decision to create or eliminate teaching positions in

the first place—i.e., to restructure a district. 2    Indeed, neither has the Legislature

addressed the role of tenure within this obviously difficult context.

¶32    It cannot be denied that a school board has the authority, and arguably the duty, to

manage its school district in a financially responsible manner. See Sorlie, 205 Mont. at

29, 667 P.2d at 403. This authority includes the power to eliminate programs, activities,

and personnel if and when such changes are necessary. Sorlie, 205 Mont. at 29, 667 P.2d

at 403; Massey, 211 Mont. at 336, 683 P.2d at 1334. Therefore, while senior tenured

teachers possess a “bumping right” for a position vis-à-vis junior tenured and non-tenured

teachers, it does not follow therefrom that the right constrains a board, during a

restructuring, to revise academic programs or re-align staff positions only in a manner




       2
       While Harris did involve a change in one position—i.e., cutting a full-time
physical education position to part-time—it did not involve the general restructuring at
issue here, where new positions requiring multi-subject endorsements were created to
absorb a reduction in force required by budget constraints.

                                         14
which accommodates the seniority of existing tenured staff. 3         Not only is there no

authority for so applying tenure, such an application would substantially interfere with a

district’s undisputed right, and one of its most difficult duties, to restructure—i.e., to

eliminate programs, activities, and personnel when financial circumstances dictate. See

Sorlie, 205 Mont. at 29, 667 P.2d at 403; Massey, 211 Mont. at 336, 683 P.2d at 1134.

Furthermore, it is clear that a teacher has no right to teach a position for which he or she

is unqualified. Section 20-4-201, MCA (1993).

¶33    Radakovich asserts, however, that because there were alternative restructuring

options which would have resulted in dismissal of a non-tenured teacher instead of him,

the District was bound to utilize such an alternative. The Scobey School District elected

to address the financial shortfall, in part, by cutting multiple full time teachers. Included

among those cuts was Radakovich’s full-time social studies position at the high school,

for which the District assigned three teachers endorsed in multiple subjects, including a

junior tenured and non-tenured teacher, to teach his courses, in addition to teaching their

other courses.




       3
        This can be more clearly illustrated by a different scenario. Imagine a school
which employs ten teachers, each of whom is certified to teach only one subject, and no
two teachers are certified in the same subject. If budget constraints force the district to
cut one teacher yet retain the core curricula, the district will be forced to dismiss two
tenured teachers and hire one new, non-tenured teacher certified in multiple subjects.
Though the outcome would result in the retention of a non-tenured teacher over two
tenured teachers, the district would have no other choice but to dismiss the tenured
teachers. This is not the scenario here, as discussed infra, but is offered only to illustrate
that Radakovich’s tenure argument could logically lead to an impossibility.
                                          15
¶34    Radakovich correctly notes that this action was not the only high school level cut

that the District considered. There were other alternatives under which Radakovich could

have been retained as a full-time, single subject-endorsed social studies teacher.

However, as would be expected, there were negative consequences associated with each

of those alternatives. One of the alternative staffing cuts considered by the District

required the high school principal to undertake teaching duties in addition to his

administrative duties, essentially reducing the full-time principal position to one deemed

to be part-time. Another alternative would have required termination or reduction of

foreign language classes.

¶35    Clearly, the other alternatives considered by the Board would have negatively

impacted either the administrative operation of the school or the educational program

which the school could offer, impacts which the Board was able to avoid by using

teachers certified in multiple subjects. This well illustrates, not only the difficult choices

faced by the Board, but the restrictions which would be forced upon districts if they were

required to restructure exclusively on the basis of preserving senior tenure staff positions.

The statutes and our cases simply do not mandate such an application of tenure, and to

require such would contravene Sorlie, 205 Mont. at 29, 667 P.2d at 403, which

recognized a district’s authority to eliminate programs, activities, and personnel if and

when such change is necessary. 4


       4
      It is worth noting that other states have significantly more detailed statutory
schemes governing tenure. Those provisions detail not only how tenure is earned, as in
Montana, but how a district must respect tenure after it is earned as well. See e.g.,
                                          16
¶36   We note that other states allow retention of junior tenured and non-tenured

teachers over senior tenured teachers in some situations. For instance, in New Mexico

State Bd. of Educ. v. Abeyta (N.M. 1988), 751 P.2d 685, the New Mexico Supreme Court

held that a district did not have to restructure or realign a district’s teachers so as to

ensure retention of the most senior teachers where doing so would seriously affect

educational programs. Abeyta, 751 P.2d at 688. As noted by the court, there were

serious consequences to elevating tenure above all other considerations during a

reduction in force, a fact made evident by testimony from the superintendent in that case:

      We had a situation in the library [where] we have finally acquired the
      services of [Carson] an individual [who] is extremely energetic, has done
      an excellent job in our library over the two years that he has been there.
      That was one of the programs that was suffering drastically. We wanted to
      preserve that program and the only way we felt we could is by keeping that
      individual, in there. We considered the option that you’re talking about
      which would have been to move John Sampson into that program.

      He was in that program four or five years ago at the middle school level
      [where] there is a lot of difference between programming library for middle
      school as opposed to high school. That consideration was given and we felt
      that we made a professional judgment that that would deteriorate the
      program.

      The other consideration was that John Sampson is in our social studies
      program at the high school. We consider him an exceptionally good social
      studies person. He has no interest in going into the library. We would
      have, in essence, ended up disturbing two extremely important programs if
      we took this approach. That is why we discounted that as an alternative.




California, Cal. Ed. Code §§ 44955 (Reduction in number of permanent and probationary
employees) and 44956 (Rights of permanent employee terminated due to reduction in
employees). Montana statutes do not offer this kind of direction.
                                        17
Abetya, 751 P.2d at 687-88.         As a result of the consequences detailed by the

superintendent, the court upheld the district’s action retaining a junior teacher over a

senior tenured teacher. 5

¶37    Finally, as mentioned above, the District terminated Radakovich in part because

he possessed only a single teaching endorsement, while the other teachers considered for

dismissal but retained possessed endorsements in multiple subjects. The District was

able to maintain a full-time principal and preserve a stronger foreign language curriculum

by utilizing staff members who possessed multiple endorsements.             As a matter of

practical policy, this case illustrates that a teacher with multiple endorsements is

especially valuable to a small rural district which needs teachers to teach in many

subjects and to differing age groups. In 1982, when deciding a case much like the one

before us, the State Superintendent of Schools held similarly, and offered a prescient

opinion about the need for teachers to be certified in multiple subjects:

       My commitment to give strong support to the concept of tenure remains.
       However, in this instance, Appellant is attempting to remain in a School
       District which has suffered a consistent drop in students for a number of
       years; at the same time the Appellant had not broadened his teaching
       certification to meet the obvious demand for teachers who have
       certification in many subjects. No question was ever raised on Appellant’s
       ability to teach or his intelligence. Appellant must consider that if he
       intends to teach in rural areas, where enrollments are declining, he must
       broaden his teaching certification in order to be a more useful and valuable


       5
         California allows retention of junior tenured teachers over senior tenured
teachers if the junior teachers possess special skills and competence, even where both
teachers are similarly state certified. See King v. Berkeley Unified School District (Cal.
1979), 152 Cal. Rptr. 782; Moreland Teachers Association v. Kurze (Cal. 1980), 167 Cal.
Rptr. 343, 346-47.
                                         18
       employee in a situation where students, teachers and school budgets are
       under constant pressure.

Holter v. Valley County School District No. 13 (OSPI No. 29-82) (1982), 1 Ed. Law 283.

It is clear that the unfortunate, but real need for small districts to respond to declining

enrollments will require greater use of teachers with multiple endorsements in order to

meet the challenge of providing a complete educational program. While, in accordance

with our holdings, a district cannot displace a tenured teacher from a position for which

that teacher is qualified in order to hire a multi-certified non-tenured teacher for that

position, it is inevitable, as noted by the State Superintendent of Schools, that the

financial challenges faced by districts in depopulating areas of the state will force them to

restructure academic programs in a manner which places greater reliance upon multi-

certified teachers. Our decision today is not directed by these practical observations, but

we mention them only to demonstrate that, as currently enacted, the tenure statutes do not

prohibit such restructuring.

¶38    The Scobey School District dismissed Radakovich because (1) the District

restructured in a way that avoided negatively impacting the high school’s administrative

operation and educational program, and (2) Radakovich was endorsed in only one subject

area, leaving him unqualified to teach any of the post-restructuring positions filled by the

non-tenured and junior tenured teachers. Because nothing in § 20-4-203, MCA (1993),

or the Massey, Holmes, and Harris line of cases precludes such considerations and action,

we hold that the Scobey School District’s dismissal of Radakovich as a tenured teacher


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was not in violation of § 20-4-203, MCA (1993), and the tenure protections otherwise

outlined in Montana case law.

¶39      It is important to make one final observation about tenure. While not implicated

by the facts of this case, clearly a school board cannot, in order to avoid the provisions of

the tenure statutes, use restructuring as a ruse to dismiss a specifically targeted employee

or employees in bad faith. This was the essence of our holding in Harris, where we

rejected the district’s restructuring defense as a “hypertechnical distinction” of the

district’s right to restructure. Harris, 241 Mont. at 281, 786 P.2d at 1168. In contrast, the

Scobey District’s action here was not “hypertechnical,” but a legitimate restructuring.

Thus, it remains the law today that, “[a] teacher’s tenure is a substantial, valuable and

beneficial right, which cannot be taken away except for good cause.” Massey, 211 Mont.

at 336, 683 P.2d at 1334, citing State v. District Court, Fergus County (1954), 128 Mont.

353, 361, 275 P.2d 209, 214. It is self-evident that bad faith cannot constitute good

cause.

             Was the District’s use of the multiple endorsements RIF criterion
                                objective and fairly applied?

¶40      The County Superintendent found the District’s use of the “multiple

endorsements” RIF criterion to be objective and fairly applied by the Scobey School

Board. Although the District Court disagreed, after review, we conclude the County

Superintendent was correct.




                                         20
¶41    The District Court concluded that use of the “multiple endorsements” RIF

criterion was improper based on its reading of the relevant collective bargaining

agreement:

       While [the multiple endorsements criterion] may have presented more
       flexibility in shuffling staff, it was an element that was not part of the
       Collective Bargaining Agreement and a factor that was not identified to the
       teachers until less than one week before Radakovich’s notification that the
       superintendent was recommending that he be terminated.

The District Court added:

       While the County Superintendent correctly found that Superintendent Hill
       determined staffing reductions were to be implemented based on seniority
       and evaluations, “where possible”, endorsements and the programs offered
       by the district and a preference for multiple endorsements and the
       subsequent conclusion that those were proper and legitimate criteria is
       erroneous. According to its own Collective Bargaining Agreement,
       seniority and evaluations alone were the criteria . . . . The words “multiple
       endorsements” were unilaterally inserted by the superintendent.

While the District Court may have correctly determined that the RIF criteria used by the

District was not properly grounded in the collective bargaining agreement, that issue was

finally decided via binding arbitration in December of 1994. There, the arbitrator denied

Radakovich’s grievance, concluding that the District had not violated the CBA when it

terminated Radakovich using the multiple endorsements criterion. Radakovich I, ¶ 9.

¶42    As we held in Radakovich I, “[a] district court’s review of arbitration decisions is

circumscribed by statute.” Radakovich I, ¶ 17. Therefore, based upon the issue’s final

resolution in binding arbitration, we must conclude that the District Court’s justification

of its reversal of the County Superintendent’s decision on the basis of the District’s use of

the “multiple endorsements” criterion was improper.
                                         21
¶43    Further, it is clear that a “multiple endorsements” criterion is objective: a teacher

either has them or does not have them. Here, that criterion was utilized fairly by the

District, as every teacher retained to teach Radakovich’s classes and cover his area of

certification possessed multiple endorsements. For these reasons, as well as those above,

we conclude that the use of the “multiple endorsements” criterion was objective and

fairly applied.

¶44    The District Court’s reversal of the decision of the Daniels County Superintendent

of Schools was in error. We reverse and remand with instructions to reinstate the

decision of the County Superintendent.



                                                        /S/ JIM RICE



We concur:

/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS




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Justice James C. Nelson dissenting.

¶45   It concerns me that, while well intended, our decision creates a loophole in the

teacher tenure act that will, henceforth, enable school boards to terminate tenured

teachers in favor of less qualified and lower paid non-tenured teachers under the guise of

using RIFs coupled with multiple endorsement criterion.

¶46   It is undisputed that the Scobey School District (the District) did not eliminate its

social studies program and, thus, Radakovich’s position. The social studies program

continued on after Radakovich’s termination—it was just taught, along with other

courses, by other teachers, one of those being a non-tenured teacher (Tim Tharp).

According to the findings of fact of the County Superintendent, the District could have

terminated Tharp, assigned his duties to another teacher, and kept Radakovich in its

employment. But that did not happen; rather, Radakovich was terminated.

¶47   In that regard, § 20-4-203, MCA, protects the tenure rights of teachers such as

Radakovich, who have been offered and who have accepted a contract for the fourth

consecutive year of employment. Tenure is a unique facet of teaching contracts designed

to encourage academic freedom and to stimulate a vigorous, and sometimes

controversial, discussion and debate in the pursuit of knowledge through continuing

employment and economic security.

¶48   The multiple endorsement criterion constructed by the District, and now endorsed

by this Court, is neither included in § 20-4-203, MCA, as a basis for terminating a

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tenured teacher, nor was it a part of the collective bargaining agreement. Rather, this

criterion was constructed from whole cloth by the District without input from the

teachers. Instead of being an “objective” standard, the multiple endorsement criterion is

little more than a facile, artificial gimmick that enables school districts to target specific

tenured teachers for termination under the guise of a RIF, and which allows the district to

retain less qualified and lower paid non-tenured teachers. See Harris v. Cascade County

School Dist. 6 (1990), 241 Mont. 274, 786 P.2d 1164, where we rejected the school

board’s decision to first eliminate a full-time P.E. position and, as a consequence,

terminate the tenured teacher holding it, and then turn around and create a new half-time

P.E. position for which the tenured teacher would be entitled to no consideration. We

condemned this approach as “artificial” and involving a “hypertechnical distinction that

could seriously threaten the value of tenure” and would “permit school boards to

circumvent tenured rights . . . .” Harris, 241 Mont. at 281, 786 P.2d at 1168. The same

conclusion appertains here.

¶49    I agree with Radakovich’s argument, if § 20-4-203, MCA, means anything, it

must mean that a tenured teacher has the right to require the school district to structure its

RIFs, where possible, to retain tenured teachers and to RIF non-tenured teachers. This

alternative was undisputedly available to the District here, and there is nothing in the

County Superintendent’s decision which explained why the District did not pursue this

alternative.




                                          24
¶50    Radakovich was tenured under § 20-4-203, MCA, and the collective bargaining

agreement covering his employment provided that RIFs would be based on “seniority

and/or personnel evaluations by the administrative staff.” The County Superintendent

found that there were alternatives of RIF which could have allowed teachers to continue

to teach in their endorsed areas, retain Radakovich and terminate a non-tenured teacher.

Section 20-4-203, MCA, and the collective bargaining agreement provide a preference

for the retention of tenured teachers. Indeed, our case law confirms that tenured teachers

have the right to “bump” non-tenured teachers. Massey v. Argenbright (1984), 211 Mont.

331, 337, 683 P.2d 1332, 1335 (school board’s policy of hiring only those teachers who

have majored in the subject does not supersede the Teacher Tenure Act and holding that

the school board was obligated to offer Massey one of the comparable teaching positions

held by a non-tenured teacher).

¶51    I would conclude that, here, the School Board refused to follow the law and the

collective bargaining agreement. Unfortunately, our decision creates a loophole in the

Teacher Tenure Act that will, henceforth, enable school boards to terminate tenured

teachers in favor of less qualified and lower paid non-tenured teachers under the guise of

RIFs coupled with multiple endorsement criterion. If these sorts of criterion are to

hereafter be a part of the alternatives available to school districts conducting a RIF, then

multiple endorsement criterion should be either included in the Teacher Tenure Act by

the Legislature or bargained for as part of the collective bargaining process.




                                         25
¶52    This Court has consistently held that teacher tenure is a valuable and substantial

right that cannot be taken away except for good cause. Yanzick v. School District No. 23

(1982), 196 Mont. 375, 391, 641 P.2d 431, 440 (citing State ex rel. Saxtorph v. District

Court, Fergus County (1954), 128 Mont. 353, 361, 275 P.2d 209, 214).            See also

Trustees, Missoula Cty S.D. 1 v. Anderson (1988), 232 Mont. 501, 505, 757 P.2d 1315,

1318; Baldridge v. Board of Trustees (1997), 287 Mont. 53, 58, 951 P.2d 1343, 1346.

¶53    I fear that we have now substantially diminished that right and have opened a door

for abuse.

¶54    I would affirm the trial court. I dissent from our failure to do so.



                                                /S/ JAMES C. NELSON




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