State ex rel. Marolt v. Independent Sch. Dist. No. 695

• Decision Date: 12 April 1974
• Docket Number: Nos. 44151,44152,No. 695,C,695,s. 44151
• Parties: STATE of Minnesota ex rel. Edward MAROLT, Respondent, v. INDEPENDENT SCHOOL DISTRICT NO. 695 and School Board of Independent SchoolDistricthisholm, Minnesota, Appellants.
• Court: Minnesota Supreme Court

Page 212

217 N.W.2d 212

299 Minn. 134

STATE of Minnesota ex rel. Edward MAROLT, Respondent, v. INDEPENDENT SCHOOL DISTRICT NO. 695 and School Board of

Independent SchoolDistrict No. 695, Chisholm,

Minnesota, Appellants.

Nos. 44151, 44152.

Supreme Court of Minnesota.

April 12, 1974.

Syllabus by the Court

1. Under the facts and circumstances of this case, petitioner's position was that of a tenure teacher of English in respondents' school system.

2. Respondents, upon concluding that there was a justifiable need for the discontinuance of an English teacher position, could not terminate a tenure teacher and retain a nontenure teacher to fill a position for which the tenure teacher was qualified.

Peterson, Popovich, Knutson & Flynn, Peter S. Popovich, James E. Knutson, and Ivars J. Krafts, St. Paul, for appellants.

Helgesen, Peterson, Engberg & Spector and Robert J. Tennessen, and Roger A. Peterson, Minneapolis, for respondent.

Heard before KNUTSON, C.J., and OTIS, MacLAUGHLIN, and MULALLY, JJ., and considered and decided by the court.

MacLAUGHLIN, Justice.

This is an appeal by respondents, Independent School District No. 695 and its board, from an order of the trial court denying a motion for a new trial. The trial court reversed an order of respondent school board terminating the teaching contract of petitioner, Edward Marolt. We affirm.

On December 22, 1969, James A. Johnson was hired by respondent school board as a junior high school English teacher. Prior to the commencement of classes for the 1970--71 school year, Johnson entered military service, and petitioner was interviewed as a potential replacement. Petitioner testified that respondents' superintendent indicated that Johnson might return after completion of his military service and that the position would have to be available for him at that time.

Thereafter, petitioner was hired by respondent school board as an English teacher. The parties entered a written contract on August 28, 1970, which stated that it was entered 'pursuant to M.S. 125.12,' the so-called continuing contract statute applicable to teachers. The contract further stated that it was 'effective for the 1970--1971 school year only.' On March 30, 1971, respondent school board passed a resolution stating that 'the teaching contract of Edward Marolt, a probationary teacher in Independent School District No. 695 is hereby terminated at the close of the current school year and is not renewed for the 1971--1972 school year.' A letter was sent to petitioner on March 31, 1971, informing him that '(d)ue to the drop in enrollment in the Junior High School, we are forced to abolish one position in English.' The letter stated that the action of the board was taken 'pursuant to Chapter 890, Section 1, Subdivision 3, Laws of 1967 (Minn.St. 125.12, subd. 3).'

In April 1971, the superintendent of schools and petitioner discussed the possibility of petitioner's being retained as a teacher for the 1971--72 school year, and petitioner was again offered a contract on the basis that he was replacing Johnson. Petitioner understood this, but refused to sign the 1971--72 contract with the term 'employment for only one year' included. Because of his objection, the contract, as signed, did not contain such a clause, although respondent school board's minutes reveal that the contract was approved by the board for the 1971--72 school year only. Again, the written contract stated that it was entered by the parties 'pursuant to M.S. 125.12.'

Sometime in early 1972, Johnson informed the superintendent that he was to be released from service and desired to teach during the 1972--73 school year. A contract for that year was submitted to Johnson and accepted by him. On February 28, 1972, respondent school board passed a resolution that 'the continuing contract of Edward Marolt * * * be terminated effective at the end of the 1971--72 school year pursuant to M.S. 125.12.' The school board's resolution also stated that the proposed termination was based upon the '(d) iscontinuance of position due to return of incumbent James Johnson from military service.' Discontinuance of position is a stated reason for termination of a continuing contract found in Minn.St. 125.12, subd. 6. The written notice submitted to petitioner contained the statutory reason for termination, stated that the notice was given pursuant to § 125.12, and informed the petitioner, as required by § 125.12, that he was entitled to a hearing before the school board provided he requested it within 14 days after receipt of the notice. Petitioner requested such a hearing and requested district court review of the school board's decision following the hearing. The district court reversed the school board which in turn led to this appeal.

One of the issues argued by the parties on appeal is whether petitioner was hired pursuant to § 125.12, the continuing contract statute, ¹ or whether he was hired as an 'acting incumbent' under § 192.263, which provides for the hiring of replacements for public officers or employees who are on leaves of absence for military service, pursuant to § 192.261. ² However, after carefully reviewing the record, we adopt the position of the trial court that, based upon all the facts in this case, respondents treated petitioner on the basis that he had a continuing contract under § 125.12 and that, as expressed by the trial court, '(t)here is no difficulty in holding that Petitioner's 'position' was that of a tenured teacher of English in Respondent's school system' at the time of Johnson's return from military service. ³

Further, while there is some disagreement between the parties, we hold that under § 192.261 Johnson, upon his return, was entitled to be reinstated in his former position as an English teacher. A more fundamental question is the effect of Johnson's return upon petitioner's position. ⁴ Respondents argue that they acted properly in terminating petitioner at the time Johnson returned. Petitioner argues that if there were nontenure teachers serving in positions similar to petitioner's at the time of Johnson's return petitioner should not have been terminated because of his preferred status as a tenure teacher.

Therefore, the issue which we must decide is whether the contract of a teacher who has attained tenure may be terminated because of a necessary discontinuance of position where there is retained by the school district a teacher in the same position who has not attained tenure. This question has not been decided by this court, but there is ample authority in other jurisdictions supporting the trial court's conclusion that, under these circumstances, the tenure teacher must be preferred.

A leading case on this issue is Watson v. Burnett, 216 Ind. 216, 23 N.E.2d 420 (1939). The Watson case involved the interpretation of a continuing service statute similar to our own. In discussing the question with which we are confronted herein, the Watson court said (216 Ind. 221, 23 N.E.2d 423):

'* * * This case, however, presents the question of whether a justifiable decrease in teachers authorizes the retention by the trustee of a teacher who has not acquired a permanent tenure status and the cancellation of the contract of a teacher who has acquired such status and who is qualified to teach in the position for which the non-tenure teacher is retained? It is our opinion that this question must be answered in the negative. To hold otherwise would be contrary to the entire spirit and purpose of the Act. The principal purpose of the Act was to secure permanency in the teaching force. If a justifiable decrease in the number of teaching positions should be held to give to the trustee the power to choose between tenure and non-tenure teachers, both of whom are licensed to teach in the teaching position which remains, he is thereby given the power to nullify the Teachers' Tenure Act, and to discharge without cause a teacher who has, by reason of having served satisfactorily as a teacher during the specified period, secured a tenure status and an indefinite permanent contract. To countenance such an interpretation of the law would be to permit the trustee to do indirectly that which the law expressly forbids him to do directly.'

In Seidel v. Board of Education of Ventnor City (N.J. Supreme Court), 110 N.J.L. 31, 33, 164 A. 901, 902, affirmed (N.J. Court of Errors and Appeals), 111 N.J.L. 240, 168 A. 297 (1933), we find the following:

'* * * Granting that apart from the statute, a school board may in the interests of economy reduce the number of teachers, the protection afforded by the statute would be little more than a gesture if such board were held entitled to make that reduction by selecting for discharge teachers exempt by law therefrom, and retaining the non-exempt. If such reduction is to be made at all, and the place remains which the exempt teacher is qualified to fill, such teacher is entitled to that place as against the retention of a teacher not protected by the statute.'

47 Am.Jur., Schools, § 139, states:

'* * * Even though by statute a justifiable decrease in the number of teaching positions is recognized as ground for the cancelation of a permanent tenure contract, the retention of a probationary teacher and the dismissal of a permanent employee qualified to teach in the position of the non-tenure teacher is not authorized by such a statutory provision.'

See, also, Barnes v. Mendenhall, 98 Ind.App. 229, 183 N.E. 556 (1932); Hankenson v. Board of Education of Waukegan Twp., 15 Ill.App.2d 440, 146 N.E.2d 194 (1957); Hensley v. State Bd. of Education, 71 N.M. 182, 376 P.2d 968 (1962); Pickens County Bd. of Education v. Keasler, 263...