This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Maxine G. Strege,
Independent School District No. 482,
Little Falls Community Schools,
Reversed and remanded
School Board of Independent School District No. 482
Neal T. Beuthe, Lee M. Friedman, Briggs and Morgan, P.A., Suite W2200, 332 Minnesota Street, First National Bank Building, St. Paul, MN 55101 (for relator)
John J. O’Donnell, Knutson, Flynn, Deans & Olsen, P.A., Suite 10, 1155 Centre Pointe Drive, Mendota Heights, MN 55120 (for respondent)
Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Stoneburner, Judge.
Relator Dr. Maxine G. Strege argues that respondent Independent School District No. 482, Little Falls, improperly terminated her employment in violation of her statutory rights as a continuing-contract teacher. Because Strege meets the statutory criteria of a continuing-contract teacher and the district failed to establish that she is not a continuing-contract teacher, we reverse and remand.
Relator Dr. Maxine G. Strege was employed by respondent Independent School District No. 482, Little Falls Community Schools, from September 1, 1986, until the district eliminated her position effective June 30, 2000. Strege was Director of Curriculum, later renamed Director of Teaching and Learning. The position required either a Minnesota administrative license or a degree in curriculum or a related field. Strege holds two Minnesota administrative licenses, for district superintendent and for elementary school principal, and is also licensed to teach elementary education.
According to Strege’s job description, she is the supervisor of the Director of Vocational Education, the Grad Standards Technician, the Global Resource Teacher, the Volunteers in Learning Coordinator, and other staff members designated by the superintendent. The job description lists 39 performance responsibilities, which include guiding “development, implementation and evaluation of curriculum and instructional services” and observation of teachers in their classrooms upon the request of principals.
From the beginning of her employment until 1995, the terms and conditions of Strege’s employment were set out in one-page employment contracts. Each contract covered one school year. The last contract was for the period July 1, 1994 through June 30, 1995. The contracts identified Strege as a “legally qualified and licensed teacher who agrees to teach in the public schools of said district” and stated that the contract “is subject to the provisions of [Minn. Stat. §] 125.12 as amended and to all laws, rules and regulations of the State of Minnesota relevant to qualification, licensure, employment, termination and discharge for cause of teachers.” The contract further provided that additional assignments could be made by the school board but that such other assignments “shall not become a part of the teacher’s Continuing Contract rights unless the words ‘continuing contract’ are recorded immediately following the assignment.” The contract language was identical each year, except for the amount of compensation.
Consistent with the district’s policy for all continuing-contract teachers who have completed the probationary period, Strege no longer signed one-year contracts beginning with the 1995-1996 school year. Instead, for each school year from 1995-1996 through 1999-2000, Strege was given an annual Notice of Salary and Assignment informing her of her salary for that year. For each year since the 1989-1990 school year, the district also provided Strege with a policy manual, which governs all administrators, including Strege’s position. Section 1.411 of the policies provides that all administrators shall be employed under a continuing contract. The policies discuss the tenure and bumping rights that flow from the continuing contracts based on seniority. The district’s seniority list for 1999-2000 states that Strege has seniority with a start date of September 1, 1986, with licensure for District Superintendent/Elementary Principal and Elementary Education. The district admits that at all times during Strege’s employment the district treated her as a continuing-contract teacher.
On February 28, 2000, District Superintendent Maurer told Strege that the school board was planning to eliminate her position. He told her that the Lindbergh Elementary School principal would be retiring at the end of the 1999-2000 school year and offered Strege the opportunity to move into that position for the 2000-2001 school year. Superintendent Maurer repeated the offer to Strege on March 14, 2000. Strege neither accepted nor rejected the offer. Strege was not informed that her employment with the district would be terminated without continuing-contract rights.
On March 20, 2000, to implement budget reductions, the school board adopted a resolution discontinuing several positions, including the Director of Teaching and Learning. The resolution declared that Strege was a “non-licensed employee” and that her position would be discontinued beginning July 1, 2000. The record does not disclose the documents the school board considered or the discussion it had before it determined that Strege was a non-licensed employee and would not be reinstated or placed on unrequested leave. Strege was not given any opportunity to contest this conclusion. The Lindbergh principal position was not re-offered to Strege and was filled by someone from outside the district.
Subsequent to the issuance of a writ of certiorari for review by this court on May 18, 2000, the district offered Strege employment in lower-paying or less-preferential teaching positions with continuing-contract rights contingent on her consent to modify her continuing contract pursuant to Minn. Stat. § 122A.40, subd. 7 (Supp. 1999). Strege refused these offers, which she terms “pale substitutes” for her right to be placed on unrequested leave with bumping rights to a continuing-contract position. Strege seeks review of the March 20, 2000 school board resolution discontinuing her contract with the district, asserting that the action was arbitrary, unreasonable, contrary to the requirements of Minn. Stat. §122A.40 (1998 & Supp. 1999), and unsupported by substantial evidence in the record.
This court will reverse a school board’s determination to terminate an employee only if the decision is “fraudulent, arbitrary, unreasonable, unsupported by substantial evidence, not within its jurisdiction, or based on an error of law.” Dokmo v. Independent Sch. Dist. No. 11, Anoka-Hennepin, 459 N.W.2d 671, 675 (Minn. 1990). The school board bears the burden of making an adequate record to prove its actions were justified. Id. at 676.
Minn. Stat. § 122A.40 (1998 & Supp. 1999) grants school employees defined as teachers certain procedural and substantive protections pertaining to their employment and termination. Cloud v. Independent Sch. Dist. No. 38, Red Lake, 508 N.W.2d 206, 209 (Minn. App. 1993). When material facts are undisputed or no evidence in the record supports a contrary conclusion, whether a school employee is a teacher under the statute is a matter of law not requiring a hearing. Id.; see, e.g., Frye v. Independent Sch. Dist. No. 625, St. Paul, 494 N.W.2d 466, 468-69 (Minn. 1992); Dokmo, 459 N.W.2d at 675. The statute defines a teacher as: “A principal, supervisor, and classroom teacher and any other professional employee required to hold a license from the state department.” Minn. Stat. § 122A.40, subd. 1.
Strege’s job description requires either a Minnesota administrative license or a degree in curriculum or a related field. Nevertheless, Strege falls under the statutory definition of a continuing-contract teacher, because she held the position as a licensed teacher, she was the only person to have held the position, and the district consistently treated the position as a tenured position. See Krueth v. Independent Sch. Dist. No. 38, Red Lake, 496 N.W.2d 829, 839 (Minn. App. 1993) (finding tenure law applied to position even though license not required where only licensed teacher had held position, teaching license and college degree were preferred, and school district did not treat position as anything other than a tenured position). The district placed Strege on its seniority list along with all other continuing-contract teachers, stated in its policy manual that all administrators would be considered continuing-contract employees, and filled the position for the last 14 years with a licensed teacher.
The state board of education requires a “person who serves as or performs the duties of a superintendent or principal” to hold “a license appropriate to [her] position.” Minn. R. 3512.0300, subp. 1 (1999). “Performance of duties includes duties that provide assistance to the superintendent or principal consisting of 50 percent or more in administration, supervision, evaluation, and curriculum.” Id. Strege’s job description as Director of Teaching and Learning includes supervising other administrative employees and teachers; developing, implementing, and evaluating curriculum and instruction; observing teachers in the classroom; reviewing the established capabilities of certified staff; organizing the necessary staff to carry out grant programs; and seeing that staff, facilities, and curriculum for vocational education meet the established criteria for state aid.
The district questions whether she spent 50% of her time supervising, arguing that despite its actions, Strege cannot be a continuing-contract teacher if she does not meet the statutory definition. The district had the burden to establish that Strege did not meet the statutory definition, however, and it has failed to produce any evidence considered by the school board that Strege is not a continuing-contract teacher. The decision to discontinue Strege’s employment and to disregard her previously acknowledged continuing-contract rights under Minn. Stat. §122A.40 was arbitrary, unreasonable, and unsupported by substantial evidence in the record.
Strege argues next that the school board’s resolution was in violation of her procedural due-process rights, because the district terminated her employment without conducting a hearing. Because we find that Strege is a continuing-contract teacher under the statute, she was entitled to a hearing. We therefore need not analyze the due-process arguments.
Strege argues that she is entitled to reinstatement as Director of Teaching and Learning, back-pay, and full benefits as a continuing-contract teacher. Reinstatement as Director of Teaching and Learning is impossible because the position has been eliminated. This court does not have the power to create new positions, and Strege does not contend that her position was improperly terminated. See Haak v. Independent Sch. Dist. No. 625, St. Paul, 367 N.W.2d 461, 467 (Minn. 1985) (finding district court did not err in refusing to reinstate to old positions which were properly terminated when reinstatement to new positions was issue for remand).
The proper remedy in a case where a continuing-contract teacher is improperly terminated is to reinstate in accordance with the statute, Minn. Stat. § 122A.40, subd. 11 (Supp. 1999). Pinkney v. Independent Sch. Dist. No. 691, 366 N.W.2d 362, 365 (Minn. App. 1985). The statute provides that the school board may place a teacher on unrequested leave of absence due to the discontinuance of the position, although the teacher is entitled to a hearing regarding this leave of absence. Minn. Stat. § 122A.40, subds. 11(e), 14 (1998 & Supp. 1999). Teachers placed on unrequested leave of absence must be reinstated to other available positions in the school district in the fields in which they are licensed, according to seniority. Id., subd. 11(e). As a continuing-contract teacher Strege is entitled to a hearing to determine which positions she is qualified for and whether she is entitled to back-pay for positions she could have held if she had been placed on unrequested leave at the expiration of her last assignment.
 The district asserts that the definition of a teacher as provided in the teacher-tenure act, applicable to cities of the first class, is instructive in this case. The teacher-tenure act’s definition of teacher “includes every person regularly employed, as a principal, or to give instruction in a classroom, or to superintend or supervise classroom instruction.” Minn. Stat. § 122A.41, subd. 1(a) (1998); see also Frye, 494 N.W.2d at 469 (finding associate superintendent for curriculum and instruction not a teacher under the teacher-tenure act). The tenure act is a wholly separate statute. See Cloud, 508 N.W.2d at 210 (emphasizing interpretation of teacher-tenure act applies only to cities of the first class). Even if the statutes are in pari materia, the tenure act does not take precedence over Minn. Stat. § 122A.40.