House Bill No. 49

Introduced By cobb



A Bill for an Act entitled: "An Act Generally Revising Montana Teacher Tenure Laws and Contested Case Procedures; providing tenure to a teacher or specialist who completes a 180-working day probationary period on the earlier of either the date of the offer and acceptance of a contract for the second consecutive year or employment on June 30 of the year following the initial date of hire; providing that if the teacher or specialist has not satisfactorily completed a 180-working day probationary period before the end of the initial employment contract, tenure is provided upon the satisfactory completion of the 180-working day probationary period; clarifying that a district may terminate employment for good cause; defining "good cause" and "same salary"; providing that the right to the same salary may be waived by mutual agreement; extending the deadline for notification of reelection of a teacher or specialist; limiting appeal of employment termination to final and binding arbitration; establishing a procedure for arbitration not covered by a collective bargaining agreement; 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; amending sections 20-3-210, 20-4-203, 20-4-204, 20-4-205, 20-4-208, and 20-7-456, MCA; repealing sections 20-4-206 and 20-4-207, MCA; and providing an effective date and a retroactive applicability provision."



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



Section 1.  Section 20-4-203, MCA, is amended to read:

"20-4-203.   Teacher and specialist tenure -- definitions -- waiver. (1) (a) Except as provided in 20-4-208 and subsection (1)(b) of this section, 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 or specialist working in a position requiring teacher or specialist certification, except as a district superintendent, is considered to be tenured upon satisfactorily completing a 180-working day probationary period and upon the earlier of:

(i) the date of the offer and acceptance of a contract for the second consecutive year; or

(ii) employment on June 30 of the year following the initial date of hire.

(b) If the teacher or specialist has not satisfactorily completed a 180-working day probationary period before the end of the initial employment contract, the teacher or specialist is considered to be tenured upon the satisfactory completion of the probationary period.

(2) Employment for less than 30-consecutive working days may not be counted as part of the minimum 180-day requirement.

(3) Prior to receiving tenure, the employment relationship between a board of trustees and a teacher or specialist may be terminated at any time by either party with or without good cause. A teacher or specialist terminated during the probationary period may not pursue an action against the school district under the provisions of Title 39, chapter 2, part 9. A school district may not be compelled to arbitrate a grievance under 27-5-115 over a teacher or specialist termination during the probationary period.

(4) Upon receiving tenure, a teacher or specialist is considered to be reelected from year to year thereafter as a tenure teacher or specialist 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 or specialist unless the trustees resolve by majority vote of their membership to terminate the services of the teacher or specialist in accordance with the provisions of 20-4-204.

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

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

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

(6) Upon receiving tenure, the employment of a teacher or specialist may be terminated for good cause.

(7) The right to the same salary may be waived by mutual agreement between the district and the teacher or specialist or, if the teacher or specialist is a member of a bargaining unit, by the teacher's or specialist's exclusive representative.

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

(a) "Good cause" means reasonable, job-related grounds for dismissal that are based on failure to satisfactorily perform job duties, disruption of a school district's operation, or any other legitimate business reason.

(b) "Same salary" means the salary paid to a teacher or specialist for services provided during the previous school year, excluding fringe benefits, extra duty, or an extended-year contract."



Section 2.  Section 20-4-204, MCA, is amended to read:

"20-4-204.   Termination of tenure teacher or specialist 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 or specialist:

(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 or specialist of the recommendation for termination and of the teacher's or specialist'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 or specialist information.

(3)  The teacher or specialist may, in writing, waive the right to a hearing. Unless the teacher or specialist waives the right to a hearing, the trustees shall set a hearing date, giving consideration to the convenience of the teacher or specialist, 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 specialist or to reject the recommendation for termination.

(5)  The tenure teacher or specialist 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 an arbitrator agreed upon by the district and the teacher or specialist or, if the teacher or specialist is represented by a labor organization, by the teacher's or specialist's exclusive representative. If a teacher or specialist is not a member of a bargaining unit or if the exclusive representative has declined to represent the teacher or specialist, the teacher or specialist or the district may request that the board of personnel appeals provide a list of arbitrators from which the teacher or specialist 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) 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.

(6) 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.

(7) 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.

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

(9) 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.

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

(11) 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 3.  Section 20-4-205, MCA, is amended to read:

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

(2)  Any tenure teacher or specialist 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 or specialist's nonacceptance of the tendered position."



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

"20-4-208.   Transfer from administrative position. (1) A tenure teacher or specialist serving in an administrative position may be assigned to a teaching or specialist 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 or specialist would have received if the teacher or specialist 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 or specialists, a district that assigns a tenure teacher or specialist serving in an administrative position to a teaching or specialist position shall recognize for teacher seniority purposes the tenure teacher's or specialist'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 or specialist may appeal a decision pursuant to the arbitration procedure established in 20-4-204."



Section 5.  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, 20-4-204, 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. 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. 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 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.

(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 6.  Section 20-7-456, MCA, is amended to read:

"20-7-456.   Tenure of teachers or specialists employed by cooperatives. (1) Teachers or specialists who have tenure rights with a district and who are employed by a cooperative of which their district is a member do not lose their tenure with the district.

(2)  Nontenured teachers or specialists employed by a cooperative acquire tenure with a cooperative in the same manner as prescribed in 20-4-203, and the provisions of 20-4-204 through 20-4-207 and 20-4-205 are applicable to teachers or specialists employed by a cooperative.

(3)  Tenure for a teacher or specialist employed by a cooperative is acquired only with the cooperative and not with a member school district of a cooperative.

(4)  For the purposes of tenure of a teacher or specialist employed by a cooperative, cooperative contract renewals may not be used to limit the teacher's or specialist's progress toward tenure status."



NEW SECTION. Section 7.  Repealer. Sections 20-4-206 and 20-4-207, MCA, are repealed.



NEW SECTION. Section 8.  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].



NEW SECTION. Section 9.  Effective date -- applicability. [This act] is effective July 1, 1997, and applies retroactively, within the meaning of 1-2-109, to contracts offered for the 1997-98 school year.

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