Donnes v. Superintendent of Public ( 1983 )

NO. 83-75
IN THE SUPREME COURT OF THE'STATE OF MONTANA
1983
ADELINE DONNES ,
Petitioner and Appellant,
STATE OF MONTANA, ex rel., SUPERINTENDENT OF
PUBLIC INSTRUCTION, and BOARD OF TRUSTEES,
CARBON COUNTY SChOOL DIST. #1,
Respondent and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Utick, Grosfield & Uda; Joan A. Uda argued, Ilelena,
Montana
For Respondent:
John W. Larson argued, Helena, llontana
Arthur W. Ayers, Jr., argued, Red Lodge, Montana
Submitted: September 15, 1983
Decided: November 23, 1983
Filed:
-
Clerk
The Honorable Douglas G. Harkin delivered the Opinion of the
Court.
Petitioner Adeline Donnes (Donnes) appeals her
termination as a tenured teacher by the Carbon County Board
of Trustees (Trustees). The decision of the Trustees to
terminate Donnes was reviewed and sustained by the County
Superintendent of Schools (County Superintendent), and the
State Superintendent of Public Instruction (State
Superintendent) and the First Judicial District Court. At
each level, sufficient evidence was found to support her
termination because of her poor relationship with her
students in the sixth grade. We affirm.
The following issues are raised by appellant:
1. Are the administrative and court decisions upon
which this appeal is based fatally defective under the
Montana Administrative Procedure Act, and is the District
Court's decision clearly erroneous because not supported by
reliable, probative and substantial evidence on the record as
a whole?
2. Was the Trustees' termination of Donnes as a tenured
teacher in violation of due process requirements, and in
violation of the covenant of good faith and fair dealing in
employment contracts?
3. Did the County Superintendent commit reversible
error in adopting verbatim the proposed findings of fact and
conclusions of law submitted by the attorney for the
Trustees?
Donnes was a tenured teacher with 35 years of teaching
experience. The evidence suggests that she performed well
"in the cognitive area," but, despite warnings, received
negative evaluations, had frequent confrontations with
parents and the school principal, and was abusive, arbitrary
and insensitive to the students1 feelings. Donnes is now in
her late sixties and asks not that this Court reinstate her,
but that it award back pay to her if her termination is
overturned.
Donnes was first notified of her termination in March of
1977, after the Trustees followed the principal's
recommendation and voted unanimously not to rehire her. Upon
her request, Donnes was furnished with a specific statement
of reasons for her termination and was granted a hearing by
the Trustees, who then affirmed their decision to fire her.
They also ad.ded reasons 5 and 6 to the following statement of
reasons for her termination:
1. Belittling and ridiculing students by making
degrading comments about students in the presence of
students.
2. Failure to satisfactorily correct problems as
outlined in a post-evaluation with the principal.
3. Creating negative feeling toward school, which
substantially impairs normal educational progress.
4. Inconsistent and erratic grading practices.
5. Failure to sign Evaluation according to Trustees1
policy.
6. Repeated physical abuse or corporal punishment
contrary to statute.
In May of 1977, upon Donnes' petition, the County
Superintendent conducted a hearing. A transcript was made
and records of Trustees' meetings and letters, were entered
into the record. The principal testified extensively, but
much of his evidence of specific instances of Donnes1 conduct
was hearsay. The hearsay evidence from the principal was
admitted by the County Superintendent for the limited
purpose of showing that complaints had been received, not
that the accusations were true. The only other witness
actually testifying about Donnes' conduct was the mother of a
girl who had received a "U" (unsatisfactory) grade from
Donnes. This witness was also the wife of a member of the
Trustees.
There is much conflict in the transcript regarding
Donnes' awareness of the problems and complaints, whether she
actually abused the students, and whether she had been warned
by the principal that he would recommend her termination if
her conduct did not improve. The record includes evidence
that the Trustees had attempted to terminate Donnes two years
earlier for physically disciplining certain children, but
that attempt was unsuccessful because it was not properly
effected, and was overturned after review by the County
Superintendent.
On July 1, 1977, the County Superintendent upheld the
Trustees' termination of Donnes. However, the only
significant finding supporting the County Superintendent's
decision was that "[tlhe Board of Trustees . . . had
substantial evidence upon which to base its decision."
The State Superintendent denied Donnes' petition for a
de novo, and held reasons 5 and 6 must be stricken.
hearing - -
After a hearing at which Donnes testified and was allowed to
present additional evidence, the State Superintendent
concluded that even without reasons 5 and 6, there was
sufficient evidence to support the County Superintendent's
decision. The State Supperintendent issued detailed findings
of fact based upon (1) its review of the written transcript
of the hearing before the County Superintendent, (2)
testimony of Donnes before the hearing examiner appointed by
the State Superintendent and (3) the remainder of the record.
Donnes petitioned the District Court for administrative
review, reinstatement and an award of back pay or, in the
alternative, an order directing the State Superintendent to
hold a hearing - -
de novo. The District Court affirmed the
decision of the State Superintendent and this appeal
followed.
MAPA DEFECTS
Donnes argues two substantial defects in the decision of
the County Superintendent. First, the County Superintendent
failed to include findings of fact with an explicit statement
of the underlying facts supporting the findings as required
by the Montana Administrative Procedure Act (MAPA) at Section
2-4-623(1), MCA. Second, the County Superintendent failed to
rule on Donnes' proposed findings of fact as required by the
MAPA at Section 2-4-623 (4), MCA. Donnes argues that because
of these defects, the administrative decision was "made upon
unlawful procedure", was made in violation of statutory
provisions and substantially impaired the rights of the
appellant because findings of fact were not made. Section
2-4-704 (2)(a), (c), (g), MCA.
The provisions of MAPA became applicable to school
controversies on July 1, 1977 when the statutory definition
of "agency" was amended to include state and county
superintendents. See Yanzick -
v. School District -
No. -
23
(Mont. 1982), 641 P.2d 431, 39 St.Rep. 191; Section
2-4-102(2) (c), MCA amd. Section 2, Ch. 285, Laws of Montana
(1977) . July 1, 1977 was also the date of the decision of
the County Superintendent.
Although the 1977 amendments to the MAPA do not contain
an express provision defining the effect upon pending
proceedings, the MAPA, at its original enactment in 1971,
provided that "pending proceedings shall not be affected".
Section 26 of Ch. 2, Ex. Laws of 1971. Consistent
application of such a clear statement of legislative intent
mandates that the 1977 amendment to the MAPA does not apply
to the Donnes proceeding that was then pending before the
County Superintendent. Donnes' argument that the MAPA
applies to the proceeding before the County Superintendent is
without merit.
SUFFICIENCY OF EVIDENCE
Donnes also argues that the District Court's decision is
clearly erroneous because it was not supported by reliable,
probative and substantial evidence on the record as a whole
pursuant to Section 2-4-704(2)(e), MCA. Specifically, Donnes
urges that (1) the evidence of incidents of improper conduct
was merely a list of complaints admitted into evidence for
the purpose of establishing the fact of the complaints only,
and that for any other purpose the incidents were hearsay,
(2) the only other evidence was unreliable as it was the
testimony of Mrs. Maurlen Marcusson, the mother of a student
who received a "U" (unsatisfactory) grade from Mrs. Donnes.
The District Court may not substitute its judgment for
that of the agency as to the weight of the evidence on
questions of fact. Section 2-4-704 ( 2 ) , MCA; Yanzick -
v.
School District - - (Mont. 1982), 641 P.2d 431, 438, 39
No. 23
St.Rep. 191, 200. To effect a reversal of the District
Court's decision based on the weight 9f evidence, this Court
must find the decision of the District Court to be "clearly
erroneous1'. Section 2-4-704 (2)(e), MCA; Wheatland County -
v.
Bleeker (1978), 175 Mont. 478, 575 P.2d 48.
It is true that much of the principal's testimony was
admitted solely for the purpose of establishing the fact of
complaints. However, beyond that testimony, there is ample
evidence to support the decision of the District Court:
1. There were a great number of complaints about
Donnes' treatment of her students;
2. Mr. Gist, the principal, investigated the complaints
and in his opinion most were well founded;
3. Mr. Gist testified as to his own observations of
students crying and disruptions in Donnes' classroom;
4. Mr. Gist was of the opinion that Donnes was an
ineffective teacher from the standpoint of dealing with the
feelings of the school children;
5. Both Mr. Gist and Mrs. Marcusson knew some of
Donnes1 students personally, and noted a very definite change
for the worse in the attitude of these students toward Donnes
and the school after attending her class;
6. Mr. Gist testified that he did not feel Donnes
progressed in her relationships with her students between
November 1976 and March 1977;
7. Mrs. Marcusson personally observed the teachinq of
Donnes on a daily basis, for nearly three weeks; and
8. Mrs. Marcusson testified that Donnes frequently
wasted more than one-half of each class bickering with
students and frequently disciplined students erroneously.
Donnes' contentions of hearsay and unreliability
notwithstanding, this Court finds this evidence to be
sufficient to support the independent and consistent
decisions of the Trustees, the County Superintendent and the
District Court.
GOOD FAITH AND FAIR DEALING
Donnes next contends that her firing and the
circumstances surrounding her firing were a violation of due
process and the covenant of good faith and fair dealing in
the employment contract. Donnes refers this Court to the
covenant of good faith and fair dealing in employment
contracts recognized by this Court in Gates -
v. - -of
Life
Montana - - (Mont. 1983), 668 ~ . 2 d
Ins. Co. 213, 215, 40 St.Rep.
1287, 1289. This issue is not properly before this Court as
no such tort was pled in the District Court. It is well
settled that a party may not change his theory on appeal to
this Court from that advanced in the trial court. Velte -
v.
Allstate Ins. Co.
- (1979), 181 Mont. 300, 593 ~ . 2 d 454;
Chamberlain -
v . Evans (1979), 180 Mont. 511, 591 P.2d 237;
Sturdevant -
v. Mills (1978), 177 Mont. 137, 580 ~ . 2 d923.
Donnes' allegations of denial of due process are
therefore relevant only to the extent that they demonstrate
prejudice to the substantial rights of the appellant
justifying reversal of the agency decisions under Section
2-4-704 (2)(a), MCA. None of the alleged breaches of due
process kept Donnes from having a full, fair and correct
adjudication of her substantive rights.
VERBATIM ADOPTION OF FINDINGS
Finally, Donnes challenges the County Superintendent's
verbatim adoption the proposed findings fact and
conclusions of law submitted by the attorney for the
Trustees. Findings and conclusions which are "sufficiently
comprehensive and pertinent to the issues to provide a basis
for decision, and which are supported by the evidence," will
not be prejudicial merely because the court followed
proposals of counsel. In Re the Marriage of Parenteau (Mont.
The decision of the District Court is affirmed.
~istrict- Judge, sitting in
place of Mr. Justice
Frank B. Morrison, Jr.
We concur:
%a&@&
Chief Justice
Justices
Mr. J u s t i c e J o h n Conway H a r r i s o n , d i s s e n t i n g .
I respectfully dissent. In s o doing, I find t h a t the
f a c t s i t u a t i o n h e r e r e q u i r e s t h a t someone s p e a k o u t t o t h e
p o i n t o f d u e p r o c e s s and t h e c o v e n a n t o f good f a i t h and f a i r
dealing with t h i s teacher. A d e l i n e Donnes g a v e t h e s c h o o l
s y s t e m o f Carbon C o u n t y t h i r t y - t w o y e a r s o f f a i t h f u l s e r v i c e
p r i o r t o March 7 , 1 9 7 7 , when t h e Board o f T r u s t e e s v o t e d a t
a s p e c i a l meeting not t o renew h e r contract f o r the year
1977-78. R e c o r d s r e v e a l t h a t s h e was n o t n o t i f i e d t h a t h e r
c o n t r a c t would be d i s c u s s e d a t t h a t meeting, and was n o t
present.
She was, h o w e v e r , n o t i f i e d o f t h e d e c i s i o n t o f i r e h e r
i n a l e t t e r d a t e d March 1 4 , 1977. She r e q u e s t e d a w r i t t e n
s t a t e m e n t " d e c l a r i n g c l e a r l y and e x p l i c i t l y s p e c i f i c r e a s o n
o r r e a s o n s " f o r s u c h t e r m i n a t i o n , by l e t t e r d a t e d March 2 1 ,
1977.
On March 2 2 , t h e Board h e l d another s p e c i a l meeting
s p e c i f i c a l l y " t o f o r m u l a t e t h e r e a s o n s f o r n o t o f f e r i n g Mrs.
A d e l i n e Donnes a c o n t r a c t f o r t h e 1977-78 s c h o o l y e a r . " The
r e a s o n s a r r i v e d a t by t h e Board d u r i n g t h e m e e t i n g w e r e :
"1. B e l i t t l i n g and r i d i c u l i n g s t u d e n t s
by making d e g r a d i n g comments a b o u t
s t u d e n t s i n t h e presence of s t u d e n t s .
"2. Failure t o satisfactorily correct
problem areas as outlined in a
post-evaluation with principal.
3 . C r e a t i n g n e g a t i v e f e e l i n g toward
school, which s u b s t a n t i a l l y i m p a i r s
normal e d u c a t i o n a l p r o g r e s s .
"4. Inconsistent and erratic grading
practices."
On March 22, 1977, the Board mailed Mrs. Donnes a
second and almost identical letter notifying her of
t e r m i n a t i o n , w h i c h was d o n e b e c a u s e t h e f i r s t l e t t e r was n o t
s e n t by c e r t i f i e d m a i l , a s r e q u i r e d b y s t a t u t e . The s e c o n d
l e t t e r was s e n t by c e r t i f i e d m a i l , but did not contain a
copy of Section 20-4-204, MCA, which is required by the
s t a t u t e t o accompany s u c h l e t t e r s .
By l e t t e r d a t e d March 2 8 , 1977, t h e B o a r d g a v e Mrs.
Donnes a statement of its reasons for termination as
r e q u i r e d b y t h e s t a t u t e , w h i c h w e r e word f o r word a s q u o t e d
above, from the Board's minutes of its March 22, 1977,
meeting; Mrs. Donnes then requested a termination hearing
b e f o r e t h e Board.
By l e t t e r d a t e d A p r i l 8 , 1977 ( a F r i d a y ) , t h e Board
n o t i f i e d Mrs. Donnes t h a t h e r t e r m i n a t i o n h e a r i n g would b e
h e l d o n A p r i l 11, 1 9 7 7 ( t h e f o l l o w i n g N o n d a y ) , a t 6 : 3 5 p.m.
A s scheduled, t h i s h e a r i n g was h e l d o n A p r i l 11, 1 9 7 7 .
It commenced at 6:30 p.m. and ended at 7:15 p.m., after
which the Board went into special session and voted to
affirm their previous decision to terminate Mrs. Donnes'
services. The B o a r d a l s o t h e n v o t e d t o a d d two new r e a s o n s
f o r termination t o those previously decided:
"5. Failure to sign Evaluation according to Board
policy.
"6. Repeated p h y s i c a l abuse o r c o r p o r a l punishment
contrary t o statutes."
By a l e t t e r d a t e d A p r i l 1 9 , 1 9 7 7 , t h e Board n o t i f i e d
Mrs. Donnes t h a t t h e y had a f f i r m e d t h e t e r m i n a t i o n d e c i s i o n
and of a d d i t i o n a l r e a s o n s f o r t e r m i n a t i o n .
Mrs. Donnes a p p e a l e d t h e d e c i s i o n t o t h e C a r b o n C o u n t y
Superintendent of Schools, Peggy Ann Kotar, who held a
h e a r i n g o n May 1 0 , 1 9 7 7 . Superintendent Kotar issued her
findings and order sustaining the Board's decision on July
1, 1977. Superintendent Kotar did not send a copy of the
order to Mrs. Donnes, and Mrs. Donnes did not become aware
of the order until August, 1977. On August 16, 1977, Mrs.
Donnes appealed Superintendent Kotar's order to the State
Superintendent of Public Instruction.
On October 13, 1977, the State Superintendent signed a
notice of hearing, scheduling a hearing to be held on
October 19, 1977. This October 13th notice of hearing was
actually mailed out to the parties on October 17, 1977, two
days prior to the hearing. On October 18, 1977, the State
Superintendent appointed Corbin Howard, her staff attorney,
as hearing examiner, and the hearing was held as scheduled
on October 19, 1977.
This was a "supplementary hearing" and not a hearing
de novo as requested by Mrs. Donnes.
The hearing examiner issued his findings of fact,
conclusions of law, ten months later on July 6 , 1978, and
exceptions were filed on behalf of Mrs. Donnes. The State
Superintendent filed the final order on November 6, 1978.
On December 5, 1978, Mrs. Donnes appealed this
decision to the District Court. Upon Respondent State
Superintendent's motion to dismiss, the Honorable Gordon R.
Bennett ruled: (1) that Mrs. Donnes' appeal to the State
Superintendent was timely filed; (2) that Mrs. Donnes was
not entitled to a hearing de novo before the State
Superintendent; (3) that the Montana Administrative
Procedure Act, Section 2-4-101 et seq., MCA, applies to
teacher appeals; and (4) that the State Superintendent's
motion to dismiss her appeal was denied.
On November 1, 1979, Judge Bennett withdrew from the
case and the Honorable William J. Speare was substituted.
None of the parties were notified of the substitution at
that time, due to an oversight by the Clerk of Court's
office in failing to mail copies to any of the parties.
After further preliminary matters the case was
submitted for the court's decision on June 13, 1980, the
District Court denied the State Superintendent's "renewed"
motion to dismiss on January 21, 1982, and also denied Mrs.
Donnes' motion for a supplemental hearing before the
District Court to take supplemental evidence on procedural
irregularities as permitted by Section 2-4-704, MCA. The
court then set a final briefing schedule and the matter was
submitted March 31, 1982 for the final decision by that
court on January 13, 1983.
Of the three issues set forth in the appeal, I feel
that all are of the utmost importance, but in view of the
fact that the majority uphold the procedures followed
herein, I will direct my comments to the first two issues,
that of the administrative and court decision upon which the
appeal was based being fatally defective under the Montana
Administrative Procedure Act and therefore erroneous, and
the due process question raised on the second issue.
It is my opinion that the standard of review for the
Montana Administrative Procedure Act (MAPA) as applied to
teachers' appeals was set forth in Yanzick v. School
District No. 23 Mont .
at 387. In Yanzick this Court stated, "Under this section,
[2-4-704, MCA] the District Court may not substitute its
judgment for that of the County Superintendent as to the
weight of the evidence on questions of fact." Therefore,
Yanzick requires that the decision of the County
Superintendent be the key decision for the judicial review
of termination of a tenured teacher.
Under Montana law it is clear that the provisions of
Section 2-4-623, MCA, apply to the findings and conclusions
prepared by both the State and County Superintendents in
tenured teacher appeals. Additionally, this Court made
clear in Yanzick, supra, our scope of review when the case
is presented to us.
"We hold that this Court should not
substitute its judgment for that of the
County Superintendent as to the weight of
the evidence on questions of fact and
that this Court may reverse or modify the
decision if substantial rights of the
appellant have been prejudiced because
the administrative findings and
conclusions are clearly erroneous in view
of the reliable, probative and
substantial evidence on the whole
record." 641 P.2d at 439, 196 Mont. at
388.
In my opinion, in the instant case, the findings of
fact and conclusions are defective in a number of instances,
and are "clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole record."
First, the County Superintendent made no findings of
fact from the evidence presented before her on the May 10,
1977 hearing. Her findings of fact concerned solely the
procedural events which preceded that hearing. She ignored
the elementary facts before her and made no comment on the
weight she placed upon those facts as required by Section
2-4-623, MCA. Nor was the deficiency corrected by either
her findings of fact and conclusions of law, or her order
which states her conclusion that "substantial evidence"
existed, without indication as to what the substantial
evidence was.
I note that the sole witness before the State
Superintendent was Mrs. Donnes. No witnesses for the Board
of Trustees appeared before the State Superintendent. Thus,
the State Superintendent was not in the position of "trier
of fact;" she did not have the benefit of hearing all the
witnesses. What she did in my opinion, is precisely what
Section 2-4-704(2), MCA, forbids: she attempted, by issuing
her own findings of fact, to substitute her judgment on
evidentiary questions for that of the County Superintendent.
These after-the-fact findings do not correct the glaring and
totally deficient hearings of this County Superintendent.
The Carbon County Superintendent's decision,
therefore, is the central decision upon which the validity
of this case rests, and is in my opinion entirely defective
and clearly erroneous. Here, the County Superintendent
never ruled on the weight of the evidence presented by the
Principal of the school, Mr. Gist. The list of complaints
that Mr. Gist presented contained the "substance" of most of
his testimony. This was objected to by Mr. Worswick, the
MEA representative, who on a two day notice appeared to
assist Mrs. Donnes in her difficulties and who made the
objection that the testimony was hearsay.
In addition the County Superintendent's decision is in
my opinion defective because she failed to rule on Mrs.
Donnes' proposed findings and conclusions, as required by
Section 2-4-Q23(4), MCA.
Also, under Section 2-4-704(2) (c), MCA, the County
Superintendent's decision was "made upon unlawful
procedure," because she did not clearly follow the statutory
decision-making requirements of Section 2-4-623, MCA, in
that she failed to make findings of fact, failed to cite
authorities, failed to give reasoned opinions and failed to
rule on Mrs. Donnes' proposed findings and conclusions. In
addition she did not make findings of fact on issues
essential to the decision, even though the proposed findings
and conclusions were submitted on behalf of Mrs. Donnes.
More important, I find that the evidence here is
incredible upon which to base a finding of fact and
conclusion upon. Although several witnesses appeared to
testify on Board procedures only two, Mr. Gist and Mrs.
Marcuson, appeared to testify on substantial natters
concerning Mrs. Donnes.
In regard to Mrs. Marcuson, she is the mother of a
student who had some difficulties in the appellant's class
due to alleged discipline complaints. Mrs. Marcuson's
husband, was a member of the School Board who was present
and voted on April 11, 1977, to terminate the services of
Mrs. Donnes.
The relationship between the School Board member and
Mrs. Marcuson, is in my opinion, a very telling factor in
the unfair procedure that Mrs. Donnes suffered. Mr.
Marcuson was not, although attorney was present for the
Board, requested to decline to participate in the
proceedings, since his wife was the sole parent to appear,
and this to me is fatal.
Next for consideration, I feel that the Board's firing
of Mrs. Donnes was a violation of due process and a
violation of covenant of good faith and fair dealing in the
employment c o n t r a c t s . T h i s Court h e l d r e c e n t l y i n Gates v.
L i f e o f Montana I n s . Co. (Mont. 1 9 8 2 ) , 638 P.2d 1063, 1067,
39 S t . R e p . 1 6 , 20, t h a t t h e r e i s a c o v e n a n t o f good f a i t h
and f a i r d e a l i n g i n employment c o n t r a c t s . T h a t good f a i t h
i n my o p i n i o n should be applicable to a tenured teacher
case. I n t h e i n s t a n t c a s e , t h e d e n i a l s o f good f a i t h , f a i r
d e a l i n g s a n d d u e p r o c e s s a r e numerous and a p p a l l i n g .
I find t h a t t h e Board of T r u s t e e s ' procedures i n the
A p r i l 11, 1 9 7 7 , " h e a r i n g " d o n o t come e v e n c l o s e t o m e e t i n g
the elementary and fundamental principles of a judicial
inquiry. Nor was the "truth or falsity" of the charges
against Mrs. Donnes ever proven, as required by a long
series of cases following S t a t e e x r e l . Howard v . I r e l a n d
( 1 9 4 3 ) , 1 1 4 Mont. 488, 4 9 5 , 138 P.2d 569.
It may we11 be that the time for Mrs. Donnes'
departure from t e a c h i n g the s i x t h grade, one of t h e most
d i f f i c u l t g r a d e s i n t h e s c h o o l s y s t e m , had come. However,
s h e g a v e t h e b e s t p a r t of h e r l i f e t o t h e s c h o o l s y s t e m , and
she was entitled to more than a shanghai operation to
terminate her services. I would r e v e r s e and remand t o t h e
C o u n t y S u p e r i n t e n d e n t f o r a f u l l h e a r i n g on t h i s m a t t e r .