PRYOR SCH DIST NOS 2 3 BIG H
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No. 84-522 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985 PRYOR SCHOOL DISTRICT NOS. 2 BIG HORN COUNTY, MONTANA, & 3, Appellants, THE SUPERINTENDENT OF PUBLIC INSTRUCTION, STATE OF MONTANA, AND BRUCE YOUNGQUIST, Respondents. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Big Horn, The Honorable William J. Speare, Judge presiding. COUNSEL OF RECORD: For Appellants: Jock B. West argued, Billings, Montana For Respondents : John W. Larson; Richard W. Bartos argued, Office of Public Instruction, Helena, Montana Davidson, Veeder, Broeder, Poppler & Michelotti; Doris M. Poppler argued, Billings, Montana Submitted: August 221 1985 Decided: September 18, 1985 Filed: $EP lf /-* .. ;v;,!-; . *,; , ' < .,. -,: ,:, 7, - ~. ;,,,I , , ., : : , . .> 2. . ; , * ; ) Clerk * 'CC. r.; . * , Mr. Justice John Conway Harrison delivered the Opinion of the Court. The appellant, respondent, school Youngquist, Administrative appeals compensation. An affirmance. district, from his resulted appeal discharged job in as principal reinstatement to District Court All parties appeal. the resulted . and in We affirm. The respondent, Bruce R. Youngquist, was a "nontenured" principa 1 employed by the appellant, Pryor School District. He was an elementary school principal for the school year 1981 and 1982. He was the elementary and high school principal for part of the 1982 and 1983 school year. On December 11, 1982, the respondent had taken a group of teachers and students to a ball game in Laurel, Montana. He was the supervisor for the school and had responsibility for the gate and concession receipts. On his return trip to Pryor he was injured in an automobile accident and reported that he would be absent from school the following Monday. When respondent returned to school on December 14, 1982, a confrontation took place between respondent and the school superintendent concerning the gate and concession receipts from the ball game. level resulted in The administrative hearing at county a finding that this "confrontation" occurred in the confines of the superintendent's office, was not heard by anyone else, and what was said was reasonable and justified in the face of the accusatory nature of the superintendent's inquiry. Immediately following this "confrontation" another incident occurred where the respondent addressed the senior class at a meeting. This meeting resulted in a physical confrontation between the respondent and a student. The administrative hearing at county level resulted in a finding that the respondent acted reasonably in protecting himself from the aggressor student. For these two incidents, and another incident, which occurred the over a year prior, during which respondent allegedly spanked an elementary student, the respondent was discharged. The administrative hearing resulting in a finding that the spanking incident did not occur at all. The appellant, school district, alleges that there are "facts" not in the record that should have been evidence in this action. All of these "facts" occurred during the incidents for which the respondent was discharged. alleged that the respondent was It is insubordinate, could not control his temper, used obscenities to express his anger, used improper language to students, was deceitful, and struck a student in the face with a closed fist. This case appe 1lant commenced school district when the superintendent of recommended to the board the of trustees of the school district that respondent Youngquist be discharged. The board of trustees suspended the respondent. A later hearing resulted in discharge. The suspension and discharge were based on the following charges: 1. During the morning of December 14, 1982, you were unable to control your temper, lost your composure and were insubordinate to the Superintendent during your discussion with the Superintendent concerning the handling of the concession stand and gate proceeds of the Lodge Grass basketball game which was played in Laurel during the preceding week. As a result of your inability to control your temper and maintain your composure as high school and elementary principal, you publicly shouted obscenities at the Superintendent. Said obscenities were done in a public area within the hearing and observation of the high school students which you supervise and set an example for. 2. That, on December 14, 1982, while in another fit of anger, you used language that is not morally proper nor acceptable for an individual in your position of trust and authority, in the class room, in the presence of the Senior class. Such language should not be used with impressionable students. 3. That, on December 14, 1982, during a fit of rage and anger, you disregarded the personal safety of a female student by striking said student with your closed fist, in the face, and resultantly bruising and injuring the girl and further, by physically forcing said girl to her knees and holding her there. 4. That during the fa11 of 1981 you inflicted bodily harm on a kindergarten student. That, when questioned by the Superintendent you angrily denied that this event happened. In your anger you purposely and deceitfully misled the Superintendent in that you later admitted that the incident did happen. The respondent superintendent. appealed The Big to Horn County the county level superintendent was disqualified and a superintendent from Yellowstone County was substituted. An administrative hearing was held. The county superintendent found that: ... 1. In regard to the alleged insubordination the incidences that occurred during this time were provoked by the Superintendent's imp1ied accusations of dishonesty and Bruce Youngquist was not proven unfit or insubordinate in his discussion with the Superintendent on December 14, 1982. . .. 2. That in regard to language used in the Senior Class meeting by Mr. Youngquist was not proven to be obscene and could not be considered morally improper or indecent under the facts and circumstances offered as proof. ... 3. That in regard to Bruce Youngquist acted within his statutory authority to restrain a defiant student and did what was necessary to control a volatile situation . . .. 4. The seriousness of the spanking incident is diluted to one of insignificance because of the one and one half year inattention, even if the incident did occur as alleged. I find the incident, according to the evidence, did not occur. The county superintendent found that there was not "good cause" for dismissal. He ordered reinstatement and compensation at the contract rate for time lost pending appeal. The appellant, school district, then appealed to the state superintendent. The appellant assembled affidavits from witnesses that had not testified at the county level. The state affirmance level of administrative the county level hearing resulted decision. The in an state superintendent stated that the affidavits that the school district sought to present as new evidence were not subject to cross examination and should not be admitted as part of the evidence or record. The state superintendent concluded that a full and fair hearing was had at county level and that the substantial rights of the appellant, school district, were not prejudiced by that procedure. The state superintendent also denied respondent's request that attorney fees be included in costs. The state superintendent stated in part: A review of the affidavits submitted to this State Superintendent for consideration reveals that the opposing party did not have an opportunity for cross examination in these matters, nor were they subject to the bright light of cross examination. Witnesses were presented on both sides of all major issues and subjects supplemented by affidavits to the State Superintendent. Many of the affidavits themselves are questionably presented. Severa 1 of the affidavits have writing on them different from the typewriting. Others were cut and pasted together, statements were pasted over prior statements. Affidavits were done in haste with liquid whiteout deleting sections of the affidavits. The State Superintendent will not permit the administrative appeal process to be burdened by nonsupportive affidavits submitted after the de novo hearing. The discretion to submit additional affidavits or additional material is left totally within the discretion of the State Superintendent. See Section 20-3-107, MCA. The State Superintendent, after reviewing the extensive and exhaustive hearing transcript and the documents and exhibits which were introduced at the hearing, finds that it is not necessary to supplement the hearing or the record with additional affidavits and statements where opposing counsel does not have the opportunity to question the same. The incident regarding the female pupil was described in exhaustive testimony by many parties. After examination and cross-examination, the two principal parties to the altercation, the pupil and Respondent, gave consistent testimony. Their description of the incident coincided very closely. The other witnesses also testified to the best of their ability, and the County Superintendent as the trier of fact spent fourteen hours listening to this testimony. His findings, again, clearly set out his reasons for this decision. An appeal to the District Court resulted affirmance of the administrative decisions. Court concluded reviewed the that county the state level in an The District superintendent correctly decision and correctly discretion in not allowing additional evidence. used The District Court concluded that there was ample, reliable, probative, and substantial evidence present at county level. All appeal parties from additiona 1 the appeal. denial evidence The by be the taken. appellant school district District Court to order The respondents and cross-appellants, state superintendent and Youngquist, appeal from an alleged change in the award, and Youngquist, alone, raises matters concerning attorney fees. Four issues are presented: I-. Whether the District Court erred in denying appellant's motion for remand to the county superintendent for taking additional evidence. 2. Whether the District Court erred in modifying the county and state superintendents' award to Youngquist. 3. Whether attorney additiona 1 damages. fees should be assessed as 4. Whether t h e c o n t i n g e n c y f e e a g r e e m e n t f o r a t t o r n e y fees is reasonable. The first is issue raised by the appellant school I t i s whether t h e District Court e r r e d i n denying district. appellant's motion f o r remand t o t h e county superintendent f o r t a k i n g a d d i t i o n a l evidence. The a p p e l l a n t , s c h o o l d i s t r i c t , a r g u e s t h a t b e c a u s e t h e respondent, Youngquist , changed his version of the facts surrounding h i s confrontation with t h e s t u d e n t t h e a p p e l l a n t was " s u r p r i s e d " that i s good this material a t t h e county level hearing. evidence. cause for not having I t i s argued presented The a p p e l l a n t a r g u e s t h a t certain f a i r n e s s and d u e p r o c e s s w a r r a n t a remand t o c o u n t y l e v e l . The argue respondents, that the state county superintendent level hearing compliance w i t h a d m i n i s t r a t i v e r u l e s . and was Youngquist, conducted in I t i s argued t h a t each p a r t y had a f u l l o p p o r t u n i t y t o p r e s e n t e v i d e n c e and c o n d u c t cross examination. Respondents argue that no remand was reference to Yanzick v. justified o r required. All parties have School D i s t r i c t No. 191. I n Yanzick, made some 23 (Mont. 1 9 8 2 ) , 641 P.2d 431, 39 St.Rep. a t e n u r e d t e a c h e r was d i s c h a r g e d f o r l a c k of f i t n e s s and m o r a l v a l u e s . The t e a c h e r had been d i s c u s s i n g a b o r t i o n w i t h and d i s p l a y i n g f e t u s e s t o young s t u d e n t s i n an i n d i s c r e t e manner and w i t h o u t a u t h o r i t y . A l t h o u g h Yanzick s e t s f o r t h many l e g a l p r i n c i p l e s t h a t g e n e r a l l y a p p l y t o t h e c a s e now b e f o r e t h e C o u r t , i t h a s l i t t l e d i r e c t b e a r i n g on t h e issue presented here. All parties correctly s t a t e t h a t Yanzick h e l d t h a t i n t h e a p p e l l a t e l e v e l s of an administrative hearing, including j u d i c i a l r e v i e w , t h e r e c a n be n o s u b s t i t u t i o n o f judgment f o r the determination ma-de at the county level. appellant, school district, points judgment is not an issue here. However, as the out, substitution of The issue here is whether additional evidence should be received. Upon application prior to a proceeding in judicial review of an administrative determination the District Court may order agency. that additional evidence be taken before the This may occur if the District Court is satisfied that the additional evidence is material and that there were good reasons for failure of a party to present it in the proceeding before the agency. Section 2-4-703, MCA. The appellant, school district, did apply for leave to submit additional evidence pursuant to S 2-4-703, MCA. Memoranduma pertaining to this application were submitted by both parties. The affidavits that the appellant sought to introduce were also before the District Court. The District Court denied the application without stating reasons why. However, the District Court did ultimately find and set forth in its correctly conclusion used its that the discretion state when superintendent previously appellant's request to submit additional evidence. denying The state superintendent had found that the affidavits were not subject to cross-examination and were of questionable quality with varying type print, cut and pasted statements, and use of "whiteout." affidavits The were state superintendent unnecessary to found supplement the that the thorough hearing at county level. The District Court did not err in denying the appellant's motion to order receipt of additional evidence. The county-leve1 hearing wa s a thorough hearing. Eyewitnesses to the incidents testified and the testimony was consistent. county Based on t h e r e c o r d t h e e v i d e n c e s u p p o r t s t h e level decision and the state District and Court c o n c l u s i o n s on t h i s i s s u e . Part of district, sought respondent, of Big the to that submit the was a appellant, statement school made by Y o u n g q u i s t , t o Harvey S o r r e l l s , a d e p u t y s h e r i f f Horn admission evidence County. that The statement Youngquist had allegedly struck the included student. an The r e m a i n i n g a f f i d a v i t s w e r e m o s t l y from p e r s o n s t h a t had h e a r d s t a t e m e n t s by Y o u n g q u i s t a f t e r t h e i n c i d e n t s f o r which h e was discharged. by t h e p a r t i e s t o t h i s action w e r e represented All attorneys. They knew t h e e v i d e n c e needed t o establish A l l of t h e e v i d e n c e was a v a i l a b l e t h e i r r e s p e c t i v e burdens. p r i o r t o hearing. W e hold t h a t t h e D i s t r i c t Court d i d n o t err i n denying the appellant's evidence. motion to Furthermore, order we receipt believe of the that additional requested e v i d e n c e would add l i t t l e t o t h e a l r e a d y t h o r o u g h h e a r i n g s . The s e c o n d i s s u e i s r a i s e d by t h e r e s p o n d e n t s and c r o s s appellants, state whether District the superintendent Court s u p e r i n t e n d e n t ' s award a n d , The a p p e l l a n t , and modified if so, Youngquist. the county It and They school d i s t r i c t , contract was controversy. did not argue for that all the future state d i d it err i n d o i n g s o . argues t h a t t h e county s u p e r i n t e n d e n t ' s award a p p l i e s o n l y t o t h e 1982-1983 year. is termination years of beyond school Youngquist's the 1982-1983 I t i s argued t h e r e f o r e t h a t t h e D i s t r i c t Court modify the award but respondents argue that affirmed the county level decision. The the county level hearing r e s u l t e d i n r e i n s t a t e m e n t and award a t t h e c o n t r a c t r a t e f o r time pending all appeals and that "contract rate" includes salary and contractual fringe benefits. They argue that the state superintendent affirmed this decision and award. They argue that the District Court erroneously modified the award to include only salary for the 1982-1983 year. They argue that the award due is salary and fringe benefits for all time pending all appeals and reinstatement at this time too. They argue that Youngquist was never terminated and his contract and statutory right to this job still exists. The issue here centers around what the award at county level actually was and what it should be now. The county superintendent concluded that: Youngquist is entitled to reinstatement as principal and he must be compensated at his contract amount for the time lost during the pending appeal. .. . This order was made February 18, 1983, approximately one month after Youngquist had been terminated as principal. The appeal to the state superintendent resulted in the following affirmance: . . . . . Respondent requested . in addition payment of attorney fees.. Such attorney fees request is denied and the County Superintendent's decision is affirmed. .. This decision was made September 28, 1983, approximately one month into the school year following the one during which Youngquist wa.s discharged. Judicial review of the agency action resulted in the following order: "the decision of the Superintendent be and hereby is, affirmed." ... This order was issued June 20, 1984, after the completion of the school year following the year in which Youngquist was discharged. The order by the District Court was accompanied by a conclusion of law which stated: [ T l h e p r i n c i p a l s h o u l d b e r e i n s t a t e d and h i s back pay made t o him a t h i s contract rate plus increments f o r t h e t i m e l o s t d u r i n g t h e pending appeal t o date. The appellants striking moved "plus to have increments this for the conclusion amended time during lost by the I t was a r g u e d t h a t t h i s p h r a s e went pending appeal t o d a t e . " beyond t h e i n t e n d e d o r d e r . A f t e r h e a r i n g on t h e m a t t e r t h e D i s t r i c t Court g r a n t e d t h e motion. Then The District the judgment Youngquist, affirmed and set Court issued the state forth the judgment in the superintendent, amount due case. reinstated to Youngquist, set o u t a s follows: $14,242.03, $12,579.24 849.80 812.99 s a l a r y f o r 1982-1983 s c h o o l y e a r social security contribution teacher's retirement contribution I n a d d i t i o n Youngquist was t o r e c e i v e 10 p e r c e n t i n t e r e s t on t h e s a l a r y t o d a t e and $804.25 f o r c o s t s . The proper award in this instance is codified in S 20-4-207 ( 2 ) , MCA: ... I f t h e county superintendent determines t h a t was made w i t h o u t good c a u s e , h e the dismissal s h a l l o r d e r t h e t r u s t e e s t o r e i n s t a t e such t e a c h e r and t o compensate s u c h t e a c h e r a t h i s c o n t r a c t amount f o r t h e t i m e l o s t d u r i n g t h e p e n d i n g o f t h e appea 1. ... However, affected by the the years for following which statute the award applying applies to is nontenure teachers: . . . (1) The t r u s t e e s 20-4-206. Notification s h a l l p r o v i d e w r i t t e n n o t i c e by A p r i l 15 t o a l l Any n o n t e n u r e t e a c h e r s who have been r e e l e c t e d . n o n t e n u r e t e a c h e r who d o e s n o t r e c e i v e n o t i c e o f r e e l e c t i o n o r termination s h a l l be automatically reelected f o r t h e ensuing school f i s c a l year. Here, Youngquist i s a n o n t e n u r e d t e a c h e r . It is clear t h a t t h e t r u s t e e s e l e c t e d t o t e r m i n a t e h i s c o n t r a c t and, by t h e s c h a o l d i s t r i c t ' s p u r s u i t o f t h e m a t t e r on a p p e a l , it i s also clear that Youngquist would not re--elected be for W e hold t h a t t h e D i s t r i c t Court properly subsequent years. l i m i t e d t h e award t o t h e 1982-7983 s c h o o l y e a r . The t h i r d i s s u e i s r a i s e d by t h e r e s p o n d e n t , Y o u n g q u i s t . It i s whether a t t o r n e y f e e s should be assessed a s a d d i t i o n a l damages. Appellants argue t h a t t h i s i s s u e cannot be r a i s e d on a p p e a l f o r t h e f i r s t t i m e . an agreement or statutory I t i s a l s o argued t h a t a b s e n t grant attorney fees are not are not allowable. The respondent recognizes unless there that attorney fees i s an a g r e e m e n t o r s t a t u t o r y usually allowed grant. The r ~ s p o n d e n t a r g u e s t h a t a t t o r n e y f e e s s h o u l d be I t i s argued t h a t he a l l o w e d i n t h i s c a s e t o make him whole. should right not to be forced to reinstatement. f a i t h , delay, absorb t h e The cost of respondent enforcing h i s argues that bad and a n u n l a w f u l d i s c h a r g e j u s t i f y an award o f attorney fees. The D i s t r i c t fees. C o u r t made no d i r e c t r u l i n g on attorney The a p p e l l a n t a r g u e s t h a t t h e i s s u e was n o t b e f o r e t h e District ruled Court that any t i m e . at attorney fees The s t a t e s u p e r i n t e n d e n t had were not to respondents d i d n o t appeal t h a t r u l i n g . raised i n D i s t r i c t C o u r t and t h i s Court. Lima S c h o o l D i s t r i c t No. specific general rule contract on awarded. The The i s s u e was n o t it need n o t b e c o n s i d e r e d by 1 9 8 4 ) , 683 P.2d 471, 477, 4 1 St.Rep. The be attorney provision or 12 v . Simonsen (Mont. 944, 951. fees is statutory that absent grant, a the p r e v a i l i n g p a r t y i s n o t e n t i t l e d t o an award o f a t t o r n e y f e e s e i t h e r a s costs of t h e a c t i o n o r a s an element of damage. M a r t i n v. Crown L i f e I n s u r a n c e Company (Mont. 1 9 8 3 ) , 658 P.2d 1 0 9 9 , 1 1 0 4 , 40 St.Rep. 216, 221. We hold that whether the issue is properly before this Court or not the general rule would a p p l y . Attorney fees are not allowed. The last issue is whether the contingency fee agreement for attorney fees is a reasonable basis for the fees awarded. 4F Because of our holding on the third issue this matter need not be addressed. Affirmed We concur: 7 Justic . d
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