Donnes v. State ex rel. Superintendent of Public Instruction , 206 Mont. 530 ( 1983 )

THE HONORABLE DOUGLAS G. HARKIN District Judge,^*

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 students’ 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 added 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 Trustees’ 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 Donnes’ 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 affected, and was overturned after review by the County Superintendent.

On July 1, 1977, the County Superintendent upheld the Trustee’s termination of Donnes. However, the only significant finding supporting the County Superintendent’s decision was that “[t] he Board of Trustees . . . had substantial evidence upon which to base its decision.”

The State Superintendent denied Donnes’ petition for a hearing de novo, and held reasons 5 and 6 must be stricken. 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 Superintendent 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 (1982), 196 Mont. 375, 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 No. 23 (1982), 196 Mont. 375, 641 P.2d 431, 438, 39 St.Rep. 191, 200. To effect a reversal of the District Court’s decision based on the weight of evidence, this Court must find the decision of the District Court to be “clearly erroneous”. 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 Donnes’ 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 teaching 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. Life of Montana Ins. Co. (1983), 205 Mont., 668 P.2d 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 P.2d 454; Chamberlain v. Evans (1979), 180 Mont. 511, 591 P.2d 237; Sturdevant v. Mills (1978), 177 Mont. 137, 580 P.2d 923.

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 of the proposed findings of 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 (1983), 204 Mont., 664 P. 2d 900, 903, 40 St.Rep. 815, 819. The decision of the District Court is affirmed.

MR. CHIEF JUSTICE HASWELL and JUSTICES SHEA, WEBER, GULBRANDSON and SHEEHY concur.

* Sitting for MR. JUSTICE MORRISON.