State Ex Rel. Keeney v. Ayers

92 P.2d 306, 108 Mont. 547, 1939 Mont. LEXIS 109

• Court: Montana Supreme Court
• Decided: June 17, 1939
• Docket: No. 7,814.
• Status: Published

Opinions

MR. CHIEF JUSTICE JOHNSON

delivered the opinion of the court.

Petitioner was granted a writ of mandate by the district court of Lewis and Clark county, requiring the State Board of Education and the president of the University to reinstate him as librarian and professor of library economy at the Montana State University. The State Board of Education and the president of the University have appealed from the judgment.

The facts alleged and proven are that the petitioner’s employment began on September 1, 1931, and that his initial employment was for the year ending September 1, 1932. Thereafter, by action of the appellant board, he was given new annual contracts for the periods ending September 1 of the years 1933, 1934, 1935, 1936, and 1937. Bach of these contracts consisted only of a “notice of appointment” signed by the chancellor or executive secretary, and an “acceptance of appointment” signed by the petitioner. However, the notice of appointment bore the statement, “This appointment is subject to the regulations governing tenure printed on the reverse side of this sheet.” These regulations consisted of ten paragraphs designated: “ (University Act No. 673, Adopted by the State. Board of Education June 22, 1918, and Amended April 8, 1919, April 26, 1921, and April 3, 1922.) ”

The pertinent paragraphs of the regulations are as follows:

“2. Professors and associate professors are on permanent appointment; provided, however, that the initial appointment to a full professorship or to an associate professorship may be for a limited term. Such limited term appointment may be renewed ; provided, however, that reappointment after three years of service shall be deemed a permanent appointment.”

“5. At the expiration of the term of appointment of a professor or an associate professor, if appointed for a limited term, or of an assistant professor, lecturer, instructor, or assistant, there is no obligation whatever to renew the appointment, and without renewal the appointment thereupon lapses and becomes void. In every ease of such non-renewal of appointment, official notice thereof shall be given by the chief executive of the institution, station or division, with the approval of the chancellor, not later than April 15th; provided, that a notice given ninety days prior to the expiration of the contract shall be sufficient in ease of the non-renewal of the appointment of any member of the Agricultural Extension Staff.”

“7. Any administrative officer or any member of an instructional or scientific staff may be removed at any time by the Board, (a) after a hearing, (b) on the recommendation of the Chancellor; provided, that with such recommendation there shall be transmitted a statement from the chief executive of the institution, station or division with which such officer or staff member is connected, and also a copy of any report of the Committee on Service prepared in accordance with the provisions of Section 8 below.”

“In case of inefficiency, reprehensible conduct or insubordina-, tion, the Chancellor may suspend any administrative officer or member of the instructional or scientific staffs until the next regular or special meeting of the Board. In such ease the payment of salary shall cease at the time of suspension. If the charges made are not sustained by the Board, salary shall be paid for the period of suspension. The Board may direct the suspension of any administrative officer or member of any instructional or scientific staff pending an investigation by the Chancellor of charges presented. ’ ’

“8. For the purpose of securing to all administrative officers and members of instructional and scientific staffs proper professional tenure, and for the purpose of promoting efficient service to the University, there is hereby established in each of the institutions of the University a Committee on Service to consist of one professor appointed by the Chancellor, one professor appointed by the president, one professor elected by the Faculty of the institution. The members of such committee shall be appointed to serve for one year beginning September first. "Whenever any member of the Committee on Service becomes disqualified for any reason, it shall be the duty of the proper appointing officer to appoint a successor for the unexpired term.

“It shall be the duty of such Committee on Service at the direction of the chief executive of the institution, station, or division, or upon the request of any member of a staff whose removal is proposed, or who is under suspension, to inquire into the case and to submit a report of its findings to said chief executive and to the staff member involved. The chief executive shall transmit a copy of such report to the Chancellor for the consideration of the Board. At the time of such consideration the officer or member involved shall have the right to appear personally before the Board in his own defense.”

Substantially the only difference in these six contracts, except as to dates of commencement and termination, was the striking out, on the back of the last contract, of regulation 2.

Petitioner completed each of these contracts by signing the acceptance of appointment thereon and returning it to the president of the University. His acceptances were uniform, except that in the last one, from the back of which regulation 2 had been stricken, he added the following paragraph before his signature: “In signing this acceptance I do not mean to accept in any way a temporary appointment in lieu of my regular status as a professor on permanent tenure but to indicate my willingness to continue to serve in my present capacity.”

Upon receipt of it, the president wrote petitioner a letter reading:

“July 1, 1936.

“Professor Philip O. Keeney,

“Montana State University.

“My Dear Professor Keeney:

“We had delayed accepting and transmitting to Helena your modified acceptance of the contract issued you after the April meeting of the State Board of Education. The reason for this is that neither this office nor that of Dr. Swain at Helena is authorized to enter into subcontracts or side agreements other than the specified contract.

‘ ‘ On my last visit to Helena I discussed the matter with Dr. Swain, and he and I both looked up your contract tenure status and found that you had been issued nothing but the one year contract form year after year and that this was done on special instructions from Dr. Clapp. The paragraph with reference to tenure of professors on the back of the contracts is a general statement only and does not apply where a specific one year contract is offered. Mr. Clapp had indicated that he was not so completely satisfied with your cooperation and with the general effect of your influence on the students from the standpoint of the parents of this state that he was willing to recommend you for permanent status.

“Certainly, as a result of happenings during the past academic year, I have had nothing which would encourage me to feel more strongly either one way or the other than Dr. Clapp had felt during the whole of your tenure here. What I proposed to do was to let the status quo continue through the coming year until we could find more definitely whether the library is running efficiently and effectively, whether you and I can cooperate freely and fully, and whether you are happy in the work you are doing here. Naturally, if any of these conditions are not true, then I would not wish to urge you to remain and be unhappy and make the rest of us unhappy, too.

“This time you have been offered exactly the same sort of contract that you have had in the past, and any writing on your acceptance blank naturally does not affect your standing one way or the other. However, as I have already told you, I am very anxious to work out our mutual problems to our joint best advantage, and I shall certainly see that you are protected in every way in your interests as long as things are going as nicely as they have been recentfy.

“Sincerely yours,

“George Finlay Simmons,

“President.”

Apparently without further discussion or correspondence petitioner executed the oath of office which had been required of him each year, and proceeded to-fill his position as librarian and professor during the school year of 1936-1937.

On April 6, 1937, the president wrote petitioner a letter reading as follows:

“April 6, 1937.

“Dear Professor Keeney:

“As I told you a year ago, and reiterated in my letter of July 8th [1st?] of last year, I had hopes that our library and general personnel problems would solve themselves so well during this year that the matter of your continuing on this campus would be beyond question. In that letter of July 8th [1st?] I pointed out that on special instructions from Dr. Clapp you had been continued from year to year on one-year contracts only, that Dr. Clapp had indicated himself not completely satisfied with your services and influence, and that I had been similarly disturbed. I should like to quote further from that letter: ‘What I proposed to do was to let the status quo continue through the coming year until we could find more definitely whether the library is running efficiently and effectively, whether you and I can cooperate freely and fully, and whether you are happy in the work you are doing here. Naturally, if any of these conditions are not true, then I would not wish to urge you to remain and be unhappy and make the rest of us unhappy, too.’

“Unfortunately I have not been completely happy about conditions, therefore, I have indicated to Dr. Swain and the State Board of Education that I wish to take advantage of the provisions of paragraph 5 in the regulations in regard to tenure of office of instructional and scientific staffs, as printed on the back of the regular contract forms, which hold that in a situation of this sort ‘there is no obligation whatever to renew the appointment, and without renewal the appointment thereupon lapses and becomes void. ’

“I trust that you will be able to locate yourself in some place where the environment is less disturbing to you and where you find yourself in more sympathy with the administrative aims of the institution.

‘ ‘ Sincerely yours,

“Geo. Finlay Simmons,

■ “President.”

It is admitted that there were no charges filed, no investigations made, and no hearing had under regulations 7 and 8, or otherwise.

There is no substantial question of fact. The sole question is whether by reason of the foregoing facts petitioner had attained the status of permanent appointment under the provi sions of regulation 2, so as to require a hearing and investigation under regulations 7 and 8, or whether he was still under temporary or limited appointment requiring only notice of termination under regulation 5, by reason of the fact that each contract was for a term of only one year. Thus the question is not as to the length of petitioner’s term of contract, but rather as to his temporary or permanent status as defined by the regulations.

The pertinent part of regulation 2 is: “ Provided, however, that reappointment after three years of service shall be deemed a permanent appointment. ’ ’ Appellants contend that that provision was controlled and annulled by the fact that each of the fourth, fifth and sixth contracts was for only one year. However, the same sentence which provides that “such limited (initial) term of appointment may be renewed” (which was doné in this case), contains the further clause: “Provided, however, that reappointment (not reappointment for more than one year, but any reappointment) after three years of service shall be deemed a permanent appointment.” The length of the reappointment would seem immaterial. Reappointment after three years’ service is reappointment after three years of service, whether it is a reappointment for one year or for twenty-five. It must, therefore, under the board’s regulations, be “deemed a permanent appointment.”

In this connection it should be emphasized that the only difference between a temporary and a permanent appointment under the rules is that as to the former, “without renewal the appointment thereupon lapses and becomes void” automatically and without hearing, and upon mere notice thereof (Regulation 5), which was given; whereas in the case of a permanent appointment, the employment automatically continues, unless terminated after an investigation and a hearing, as provided in regulations 7 and 8. The difference is thus not in the length of the tenure, but in the nature of it — whether terminable with or without an investigation and hearing. That petitioner after his first three years’ service enjoyed permanent status and, therefore, was entitled to a hearing before removal, was not in consistent with, nor affected by, the fact that his contracts were from year to year.

The appellants first impeach the validity of the regulations adopted by the board, so far as permanent status of professors is concerned. However, the board adopted the same some twenty-one years ago and has operated under them ever since, and they were clearly within its authority under Article XI, section 11, Constitution of Montana, and section 853, Revised Codes. (Barbour v. State Board of Education, 92 Mont. 321, 13 Pac. (2d) 225.)

Appellants next contend that if the rules are valid, they are only for the board’s governance and did not become part of the contract of each professor so as to confer any rights upon petitioner. However, as stated above, each contract expressly recited that it was “subject to the regulations governing tenure printed on the reverse side of this sheet.” The contracts having been so framed and accepted,'appellants are not now in a position to contend that the regulations were not part of the contract.

Appellants finally contend that by reason of their action in striking out regulation 2 on the back of the sixth annual contract, which is the one here in question, and by reason of petitioner’s performance of the contract after the ensuing correspondence above set forth, he waived his right to claim permanent status. However, it is clear that upon accepting his fourth annual contract, in which regulation 2 was not stricken, he came within the clause thereof providing “that reappointment after three years of service shall be deemed a permanent appointment.” His status thereupon came within the class of permanent appointments and was not altered by the appellant board’s act of striking the regulation from the back of the sixth year’s contract.

Even if petitioner’s status had not become permanent under the first five contracts, in which regulation 2 was included, the later elimination from the sixth contract would not seem material so that its acceptance by petitioner could be claimed as a waiver. It seems clear that under the constitutional and statutory provisions above noted, the regulations of the State Board of Education made within jurisdiction have the force of law, and become part of the contracts made thereunder to the same effect. Striking the regulations from the contract could have no more effect than striking a provision of a statute, and petitioner’s acceptance of the contract would no more constitute a waiver of the regulation than it would constitute a waiver of the statute.

That it was not considered as a waiver is apparent from the president,’s letter of July 1, 1936, in which he said: “This time you have been offered exactly the same sort of contract that you have had in the past, and any writing on your acceptance blank naturally does not affect your standing one way or the other.” His contention was that the striking of regulation 2 was immaterial, and that respondent had no permanent status to waive.

Finally, since petitioner’s acceptance challenged the effect upon his permanent status of the striking of paragraph 2, and since, as just stated, the president informed him that the new contract was “exactly the same sort of contract” as the former ones, it cannot properly be maintained that by proceeding to furnish his services and draw his salary he waived whatever status had theretofore accrued to him under the statutes and regulations.

A like result as to the rights of one for whose protection a law was enacted was reached by this court in Day v. School District No. 21, 98 Mont. 207, 38 Pac. (2d) 595. In that case the question -was the application of the public school teachers’ tenure Act, section 1075, Revised Codes. There this court held unanimously that the plaintiff was entitled to the benefit of the statute, and that in the absence of the statutory notice of dismissal her contract of employment continued.

It seems obvious to us that petitioner’s right under the regulations of the Board of Education is as definite as the plaintiff’s rights under the statute in the Day Case, and that it could not be divested by the action of the board in striking regulation 2 from the sixth year’s contract.

Whether the appellant board could have affected petitioner’s rights after they had attached by repealing or amending its regulations is not properly before us, since the board did not attempt to do so. However, the question would seem to be concluded by the decision of the United States Supreme Court in the ease of State ex rel. Anderson v. Brand, 303 U. S. 95, 58 Sup. Ct. 443, 82 L. Ed. 685, 113 A. L. R. 1482, in which it was held that a teacher’s contract under a tenure Act could not be impaired by subsequent legislation. Certainly the Board of Education can no more impair contracts than can the legislature.

The judgment of the district court is affirmed.

Associate Justices Erickson, Angstman and Stewart concur.