Forbis v. Fremont County School District No. 38 , 1992 Wyo. LEXIS 179 ( 1992 )

ROONEY, Justice (Retired).

This is an appeal from the denial of appellant’s Motion for a Partial Summary Judgment and the grant of appellee’s Motion for Summary Judgment. Appellant words the issue on appeal:

“Did the District court err when it ruled that abstention from voting of school board members on a motion to award a teacher a contract were not votes but nullities in the action taken on the renewal of an initial contract teachers’ [sic] contract?”

Appellee words it:

“Was summary judgment appropriately rendered in favor of defendant/appellee Fremont County School District No. 38?”

Appellant was employed by appellee as an initial contract teacher,¹ who would have completed her third year with the 1989-90 school year. On March 29, 1990, at a special School Board meeting, and on April 5, 1990, at a regular Board meeting, a member of the Board made a motion to approve the Superintendent’s recommendation of non-renewal of appellant’s contract. Each motion died for lack of a second. On April 10, 1990, the Superintendent advised appellant in writing that since the Board had not voted to renew or not renew her contract, it would expire at the end of the 1989-90 school year. On June 11, 1990, at a regular meeting of the School Board, a motion was made and seconded that appellant be offered a contract for the 1990-91 school year. The vote was two in favor, one opposed, and two abstained.

As appellant stated in her Pretrial Memorandum and Trial Summary: “The major issue in this case is whether or not Plaintiff’s contract was renewed for the 1990-91 school year.” (Emphasis added). She contends (citing authority) that an abstention from voting is regarded as a vote with the majority, and that the two abstentions on the question at the June 11, 1990 meeting carried the motion four to one.

However, Policy No. 002.514 of the School Board provides in pertinent part: “To pass, any motion must receive three affirmative votes — that is, approval by a majority of all Board members.”

The policy does not specify a “majority” vote for passage. It required three affirmative votes. An abstention is just that — an abstention. Under some circumstances, an abstention may be considered as a vote with the majority when a majority vote is required, but what is required here for passage is not a majority vote, but three affirmative votes. Black’s Law Dictionary 55 (5th ed. 1979) defines “affirmative” as “[t]hat which declares positively; that which avers a fact to be true; that which establishes; the opposite of negative.” In the abstentions, there was no positive declaration. There was no declaration, positive or otherwise. There was no establishment of a position here — only silence. There was no expression of a stand contrary to negative — there was not expression either way. The necessary approval to renew the contract was not given.

The rules and policy are subject to the same construction as that required for contracts and statutes. When the language is plain and unambiguous and conveys a clear and definite meaning, it is unnecessary to resort to rules of construction (here, construing the effect of abstentions), and a writing is not ambiguous if it is not uncertain and susceptible to more than one meaning. Wyoming Insurance Department v. Avemco Insurance Company, 726 P.2d 507 (Wyo.1986); Campbell v. State, 709 P.2d 425 (Wyo.1985).

Even if it should be necessary to construe the policy, one need not go beyond what is usually the first step in such construction, i.e., the cardinal rule in construction is that the language used must govern. Effect must be given to that expressed in the language employed. Wyoming Bank and Trust Company v. Waugh, 606 P.2d 725 (Wyo.1980); Pilcher v. Hamm, 351 P.2d 1041 (Wyo.1960); Fuchs v. Goe, 62 Wyo. 134, 163 P.2d 783 (1945). Here, the language is plain in requiring three affirmative votes.

After the special Board meeting on March 29, 1990, and the regular Board meeting on April 5, 1990, appellee properly notified appellant of her termination as required by statute through the April 10, 1990 letter from the Superintendent.² Wyo.Stat. § 21-7-109 (1992) provides:

“The board must offer a contract for the ensuing year to each initial contract teacher if such is to be offered by April 15, and it must be accepted by May 15 of each year or the position will be declared open.” (Emphasis added.)

The abstention of those Board members doing so on the motions of March 29, 1990, and April 5, 1990, to not renew appellant’s contract could have been in anticipation that the contract would terminate on April 15, if not renewed. It did terminate on April 15, pursuant to Wyo.Stat. § 21-7-109. Such section made Board action to renew the contract a “must” to avoid termination. The termination was by operation of law and any action by the Board thereafter would not only be unnecessary, but would be a nullity. Those Board members abstaining from voting could have had such in mind. In any event, the provisions of Wyo.Stat. § 21-7-109 made the effect of abstentions from the vote on June 11,1990, to be of no consequence with reference to appellant’s employment status since she had been previously terminated from the position April 15.

Affirmed.

URBIGKIT, J., filed a dissenting opinion.

1 . Wyo.Stat. 21-7-102 (1992) provides in pertinent part:

"(a) As used in the article the follow definition shall apply:

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"(ii) ‘Continuing Contract Teacher’. — (A) Any initial contract teacher who has been employed by the same school district in the state of Wyoming for a period of three (3) consecutive school years, and has had his contract renewed for a fourth consecutive school year; * * *

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“(iv) 'Initial Contract Teacher’. — Any teacher who has not achieved continuing contract statutes).]”

2 . The foregoing is sufficient to affirm the rulings of the district court, and the following is not only an additional basis for doing so, but could indicate the motivation for the abstention votes on the matter.