House Bill No. 49

Introduced By ellis, cobb, simpkins, lawson, walters, rose, masolo, peck, rehbein

A Bill for an Act entitled: An Act Generally Revising Montana Teacher Tenure Laws and Contested Case Procedures; REMOVING JURISDICTION OF THE OFFICE OF PUBLIC INSTRUCTION TO HEAR APPEALS AND TO DECIDE DISPUTES ARISING FROM TERMINATION DECISIONS OF A SCHOOL DISTRICT NOT COVERED BY A COLLECTIVE BARGAINING AGREEMENT PURSUANT TO TITLE 39, CHAPTER 31, mca; clarifying that a district may terminate employment of a tenure teacher for good cause; extending the deadline for notification of reelection of a teacher; limiting appeal of employment termination INVOLVING A TEACHER WHOSE EMPLOYMENT IS COVERED BY A COLLECTIVE BARGAINING AGREEMENT PURSUANT TO TITLE 39, CHAPTER 31, mca, to final and binding arbitration; establishing a procedure for arbitration; limiting the remedies that may be imposed by an arbitrator; removing jurisdiction of a county superintendent to decide disputes arising from a collective bargaining agreement; CLARIFYING THAT A DISTRICT MAY TERMINATE THE EMPLOYMENT OF A NONTENURE TEACHER AT THE CONCLUSION OF A SCHOOL FISCAL YEAR WITH OR WITHOUT CAUSE UPON PROPER NOTICE; CLARIFYING THAT A DISTRICT MAY DISMISS FOR GOOD CAUSE A TENURE OR NONTENURE TEACHER BEFORE THE EXPIRATION OF A CONTRACT; CLARIFYING THAT A DISTRICT MAY REDUCE THE SALARY OF A TEACHER SERVING IN AN ADMINISTRATIVE POSITION WHO IS ASSIGNED TO A TEACHING POSITION WHEN A DISTRICT REDUCES THE SIZE OF ITS ADMINISTRATIVE STAFF; amending sections 20-3-107, 20-3-210, 20-4-203, 20-4-204, 20-4-205, 20-4-206, 20-4-207, and 20-4-208, MCA; and providing an effective date.

Be it enacted by the Legislature of the State of Montana:

Section 1.  Section 20-3-107, MCA, is amended to read:

"20-3-107.   Controversy appeal. (1) The superintendent of public instruction shall decide matters of controversy when they are appealed from:

(a)  a decision of a county superintendent rendered under the provisions of 20-3-210, except for a decision of a county superintendent or an arbitrator in a teacher termination case; or

(b)  a decision of a county transportation committee rendered under the provisions of 20-10-132.

(2)  The superintendent of public instruction shall make his a decision on the basis of the transcript of the fact-finding hearing conducted by the county superintendent or county transportation committee and documents presented at the hearing. The superintendent of public instruction may require, if he deems considered necessary, affidavits, verified statements, or sworn testimony as to the facts in issue. The decision of the superintendent of public instruction shall be is final, subject to the proper legal remedies in the state courts. Such The proceedings shall must be commenced no later than 60 days after the date of the decision of the superintendent of public instruction.

(3)  In order to establish a uniform method of hearing and determining matters of controversy arising under this title, the superintendent of public instruction shall prescribe and enforce rules of practice and regulations for the conduct of hearings and the determination of appeals by all school officials of the state.

(4)  Whenever in a contested case the superintendent of public instruction is disqualified from rendering a final decision, he the superintendent of public instruction shall appoint a hearing hearings examiner as provided in 2-4-611 and the decision of the hearing hearings examiner constitutes the superintendent's final order except as provided in this subsection. Such The final order is subject to all the provisions of Title 2, chapter 4, relating to final agency decisions or orders, including judicial review under Title 2, chapter 4, part 7."

Section 2.  Section 20-4-203, MCA, is amended to read:

"20-4-203.   Teacher tenure. (1) Except as provided in 20-4-208, whenever 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 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 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.

(2)(2)  The tenure of a teacher with a district may not be impaired upon termination of services of the teacher if the following conditions exist:

(a)  the tenure teacher is terminated because the financial condition of the district requires a reduction in the number of teachers employed; and

(b)  continued employment rights are provided for in a collectively bargained contract of the district.

(3) Upon receiving tenure, the employment of a teacher may be terminated for good cause."

Section 3.  Section 20-4-204, MCA, is amended to read:

"20-4-204.   Termination of tenure teacher services. (1) (a) The following persons may make a recommendation in writing to the trustees of the district for termination of the services of a tenure teacher:

(i)  a district superintendent;

(ii) in a district without a district superintendent, a principal;

(iii) in a district without a district superintendent or a principal, the county superintendent or a trustee of the district.

(b)  The recommendation must state clearly and explicitly the specific reason or reasons leading to the recommendation for termination.

(2)  Whenever the trustees of a district receive a recommendation for termination, the trustees shall, before May 1 of the current school fiscal year, notify the teacher of the recommendation for termination and of the teacher's right to a hearing on the recommendation. The notification must be delivered by certified letter or by personal notification for which a signed receipt is returned. The notification must include:

(a)  the statement of the reason or reasons that led to the recommendation for termination; and

(b)  a printed copy of this section for the teacher's information.

(3)  The teacher may, in writing, waive the right to a hearing. Unless the teacher waives the right to a hearing, the trustees shall set a hearing date, giving consideration to the convenience of the teacher, not less than 10 days or more than 20 days from receipt of the notice of recommendation for termination.

(4)  The trustees shall:

(a)  conduct the hearing on the recommendation at a regularly scheduled or special meeting of the board of trustees and in accordance with 2-3-203; and

(b)  resolve at the conclusion of the hearing to terminate the teacher or to reject the recommendation for termination.

(5)  The tenure teacher may appeal a decision to terminate an employment contract to the county superintendent who may appoint a qualified attorney at law as legal adviser who shall assist the superintendent in preparing findings of fact and conclusions of law the county superintendent if the teacher's employment is not covered by a collective bargaining agreement pursuant to Title 39, chapter 31, who may appoint a qualified attorney as a legal adviser who shall assist the superintendent in preparing findings of fact and conclusions of law. If the employment of the teacher is covered by a collective bargaining agreement pursuant to Title 39, chapter 31, a tenure teacher shall appeal a decision to terminate an employment contract to an arbitrator agreed upon by the district and the teacher's exclusive representative. If the exclusive representative has declined to represent the teacher, the teacher or the district may request that the board of personnel appeals provide a list of arbitrators from which the teacher and the district shall, after the toss of a coin to determine the order of striking, alternately strike names from the list until one arbitrator is selected and appointed. By mutual agreement between the parties, the county superintendent of schools may be appointed as the arbitrator.

(6) In a termination involving a teacher whose employment is not covered by a collective bargaining agreement pursuant to Title 39, chapter 31, either the teacher or the trustees may appeal to the district court of the county in which the teacher was employed. The proceedings must be commenced no later than 60 days after the date of the decision of the county superintendent.

(6) 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.

(7) In a termination involving a teacher whose employment is covered by a collective bargaining agreement pursuant to Title 39, chapter 31, a request for arbitration must be made within 20 days from the date of termination unless an alternative time period is provided by the terms of a collective bargaining agreement.

(8) The decision of the arbitrator is final and binding. Each party shall pay one-half of an arbitrator's charges unless a different cost allocation arrangement is agreed upon by the parties.

(9) An arbitrator may order a school district to reinstate a teacher who has been terminated without good cause and to provide compensation, with interest, to a teacher for lost wages and fringe benefits from the date of termination to the date that the teacher is offered reinstatement to the same or a comparable position. Interim earnings, including the amount that the teacher could have earned with reasonable diligence, must be deducted from the amount awarded for lost wages. Before interim earnings are deducted from lost wages, reasonable amounts spent by a teacher in searching for, obtaining, or relocating to new employment must be deducted from interim earnings.

(10) Except as provided in this section, an arbitrator may not order a school district to provide compensation for punitive damages, pain and suffering, emotional distress, compensatory damages, attorney fees, or any other form of damages.

(11) Upon submission of the termination decision to an arbitrator, the teacher or the teacher's exclusive representative may not file an action against the district for reinstatement or compensation of lost wages and fringe benefits.

(12) As used in this section, the following definitions apply:

(a) "Fringe benefits" means the value of any employer-paid vacation leave, sick leave, medical insurance plan, disability or life insurance plan, or pension benefit in effect on the date of termination.

(b) "Lost wages" means the gross amount of wages that would have been reported to the internal revenue service on Form W-2 and includes any compensation deferred at the option of the employee."

Section 4.  Section 20-4-205, MCA, is amended to read:

"20-4-205.   Notification of tenure teacher reelection -- acceptance. (1) The trustees shall provide written notice by May 1 June 1 to all tenure teachers who have been reelected. Any tenure teacher who does not receive notice of reelection or termination shall be is automatically reelected for the ensuing school fiscal year.

(2)  Any tenure teacher who receives notification of his reelection for the ensuing school fiscal year shall provide the trustees with his written acceptance of the conditions of such the reelection within 20 days after the receipt of the notice of reelection, and failure to so notify the trustees within 20 days shall constitute constitutes conclusive evidence of his the teacher's nonacceptance of the tendered position."

Section 5.  Section 20-4-206, MCA, is amended to read:

"20-4-206.   Notification of nontenure teacher reelection -- acceptance -- termination and statement of reason. (1) The trustees shall provide written notice by May June 1 to all nontenure teachers who have each nontenure teacher employed by the district regarding whether the nontenure teacher has been reelected for the ensuing school fiscal year. A nontenure teacher who does not receive written notice of reelection or termination is automatically reelected for the ensuing school fiscal year.

(2)  A nontenure nontenure teacher who receives notification of his reelection for the ensuing school fiscal year shall provide the trustees with his written acceptance of the conditions of reelection within 20 days after the receipt of the notice of reelection. Failure to so notify the trustees within 20 days may be considered constitutes conclusive evidence of the nontenure teacher's nonacceptance of the tendered position.

(3) Subject to the June 1 notice requirements in this section, the trustees may nonrenew the employment of a nontenure teacher at the conclusion of the school fiscal year with or without cause.  When the trustees notify a nontenure teacher of termination, the teacher may within 10 days after receipt of the notice make written request of the trustees for a statement in writing of the reasons for termination of employment. Within 10 days after receipt of the request, the trustees shall furnish to the teacher a true statement of reasons for termination.

(4)  If a nontenure teacher believes the reasons provided by the trustees are not true, the teacher may request in writing within 10 days of receipt of the statement of reasons that the county superintendent hold a hearing in accordance with 20-3-210 to determine whether the reasons are true. A hearing must be scheduled within 10 days and held within 45 days after receipt of the request, except that the period may be extended upon agreement between the trustees and the teacher. The burden of proof that the reasons are not true rests with the teacher, and the showing must be demonstrated by clear and convincing evidence.

(5)  If, after a hearing, the county superintendent determines that the reasons are not true, the county superintendent shall order the trustees to offer the teacher a contract for the ensuing school fiscal year.

(6)  The provisions of this section do not apply to cases in which a nontenure teacher is terminated when the financial condition of the school district requires a reduction in the number of teachers employed and the reason for the termination is to reduce the number of teachers employed."

Section 6.  Section 20-4-207, MCA, is amended to read:

"20-4-207.   Dismissal of teacher under contract. (1) The trustees of any district may dismiss a teacher before the expiration of his the teacher's employment contract for immorality, unfitness, incompetence, or violation of the adopted policies of such trustees good cause.

(2)  (a) The following persons may recommend the dismissal of a teacher for cause under subsection (1):

(i)  a district superintendent;

(ii) in a district without a district superintendent, a principal; or

(iii) in a district without a district superintendent or a principal, the county superintendent or a trustee of the district.

(b)  A person listed in subsection (2)(a) who recommends dismissal of a teacher shall give notice of the recommendation in writing to each trustee of the district and to the teacher.

(c)  The notice must state the specific instances of behavior or acts that led to the recommendation for dismissal.

(3)  (a) Whenever the trustees of any district receive a recommendation for dismissal, the trustees shall notify the teacher of his the right to a hearing before the trustees either by certified letter or by personal notification for which a signed receipt must be returned. The teacher may in writing waive the right to a hearing. Unless the teacher waives the right to a hearing, the teacher and trustees shall agree on a hearing date not less than 5 days or more than 20 days from the notice of intent to recommend dismissal.

(b)  The trustees shall conduct a hearing on the recommendation and resolve at the conclusion of the hearing to dismiss the teacher or to reject the recommendation for dismissal.

(4)  With the exception of a county superintendent, a person who recommends dismissal pursuant to subsection (2) may suspend the teacher from active performance of duty with pay pending the hearing date if the teacher's behavior or acts that led to the recommendation for dismissal are contrary to the welfare of the students or the effective operation of the school district.

(5)  Any teacher who has been dismissed may in writing within 10 days appeal such the dismissal to the county superintendent. Following such appeal, a hearing must be scheduled within 10 days and held within 30 days after the appeal, except that the period may be extended upon agreement between the teacher and the trustees. If the county superintendent, after a hearing, determines that the dismissal by the trustees was made without good cause, he shall order the trustees to reinstate such teacher and to compensate such teacher at his contract amount for the time lost during the pending of the appeal under the guidelines set forth in 20-4-204. The teacher may appeal a decision to terminate an employment contract to the county superintendent if the teacher's employment is not covered by a collective bargaining agreement pursuant to Title 39, chapter 31. If the employment of the teacher is covered by a collective bargaining agreement, a teacher shall appeal a decision to terminate an employment contract to an arbitrator."

Section 7.  Section 20-4-208, MCA, is amended to read:

"20-4-208.   Transfer from administrative position. (1) A tenure teacher serving in an administrative position may be assigned to a teaching position with a reduction in salary when the economic conditions of the district require a reduction reduces the size of its administrative staff. The salary for the new position must be the same as the salary that the teacher would have received if the teacher had been continuously employed in the new position rather than in the administrative position.

(2)  If a board policy or a collective bargaining agreement provides seniority rights for teachers, a district that assigns a tenure teacher serving in an administrative position to a teaching position shall recognize for teacher seniority purposes the tenure teacher's time of service in the administrative position.

(3)  As used in this section, the term:

(a)  "administrative position" means a position that the trustees of a district designate as administrative or supervisory in nature, not including the position of district superintendent; and

(b)  "reduction of administrative staff" is limited to reductions necessary because of declining enrollment or financial exigency.

(4)  When a tenure teacher serving in an administrative position is to be transferred under this section, the teacher must be notified prior to May 1 by certified letter or by personal notification for which a signed receipt must be obtained. The notification must include:

(a)  a statement of the reason or reasons for the reduction of administrative staff; and

(b)  a printed copy of this section for the teacher's information.

(5)  A tenure teacher who receives notice under subsection (4) may request in writing, within 10 days of the notice, a hearing before the board of trustees. The board of trustees shall set the hearing not less than 10 days or more than 20 days from receipt of the request unless both parties agree to an extension. If a hearing is requested, the trustees shall:

(a)  conduct the hearing to determine whether the reason or reasons for the transfer were in compliance with the provisions of subsection (1); and

(b)  resolve at the end of the hearing to uphold the transfer or to reject the transfer and return the teacher to the administrative position.

(6)  A tenure teacher may appeal a decision under this section to the county superintendent as provided in 20-3-210. The county superintendent shall conduct a hearing to determine whether the reason or reasons for the transfer were in compliance with the provisions of subsection (1).

(7)  The teacher or the trustees may appeal the determination of the county superintendent to the superintendent of public instruction as provided in 20-3-107.

(8)(4)  A tenure teacher who is transferred to a teaching position under this section must be offered the next comparable administrative position for which he is endorsed that becomes available in the district who is transferred to a teaching position under this section must be offered the next comparable administrative position for which the tenure teacher is endorsed that becomes available in the district."

Section 8.  Section 20-3-210, MCA, is amended to read:

"20-3-210.   Controversy appeals and hearings. (1) Except for disputes arising under the terms of a collective bargaining agreement or as provided under 20-3-211, or 20-4-208, the county superintendent shall hear and decide all matters of controversy arising in the county as a result of decisions of the trustees of a district in the county. Only a county superintendent who possesses the qualifications of 20-3-201(2) may hear controversies related to teacher termination. Except as provided in subsection (2), exhaustion of administrative remedies under this chapter is required prior to filing an action in district court concerning a decision of the trustees. When appeals are made under 20-4-204 relating to the termination of services of a tenure teacher or under 20-4-207 relating to the dismissal of a teacher under contract, the county superintendent may appoint a qualified attorney at law to act as a legal adviser who shall assist the superintendent in preparing findings of fact and conclusions of law. Subsequently, either the teacher or trustees may appeal to the superintendent of public instruction under the provisions for appeal of controversies in this title. When appeals are made under 20-4-204 relating to the termination of services of a tenure teacher or under 20-4-207 relating to the dismissal of a teacher under contract, the county superintendent may appoint a qualified attorney to act as a legal adviser who shall assist the superintendent in preparing findings of fact and conclusions of law. Subsequently, either the teacher or trustees may appeal to the district court of the county in which the teacher was employed. The proceedings must be commenced not later than 60 days after the date of the decision of the county superintendent. The county superintendent shall hear and decide all controversies arising under:

(a)  20-5-320 and 20-5-321 relating to the approval of out-of-district attendance agreements; or

(b)  20-4-206(4); or

(c)(b)  any other provision of this title for which a procedure for resolving controversies is not expressly prescribed.

(2)  Exhaustion of administrative remedies is not a prerequisite to filing an action in district court concerning a decision of the trustees of a district in the following instances:

(a)  a state agency has been granted primary jurisdiction over the matter;

(b)  the matter is governed by a specific statute; or

(c)  the board of trustees has acted without jurisdiction or in excess of its jurisdiction.

(3)  The county superintendent shall hear the appeal and take testimony in order to determine the facts related to the controversy and may administer oaths to the witnesses that testify at the hearing. The county superintendent shall prepare a written transcript of the hearing proceedings. The decision on the matter of controversy that is made by the county superintendent must be based upon the facts established at the hearing.

(4)  The Except for teacher termination cases, the decision of the county superintendent may be appealed to the superintendent of public instruction, and if it is appealed, the county superintendent shall supply a transcript of the hearing and any other documents entered as testimony at the hearing to the superintendent of public instruction. In teacher termination cases, an appeal may be filed with the district court of the county in which the teacher was employed no later than 60 days after the date of the decision of the county superintendent. If an appeal is filed, the county superintendent shall provide a transcript of the hearing and any other documents entered as testimony at the hearing to the district court.

(5)  Cost incurred by the office of the county superintendent must be paid from the general fund budget of the county in which the controversy is initiated."

Section 9.  Saving clause. [This act] does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before [the effective date of this act].

Section 10.  Effective date. [This act] is effective July 1, 1997.

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