This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Greg Adler,



Independent School District No. 877, Buffalo, Minnesota,


Filed December 30, 1997

Affirmed in part, reversed in part and remanded.

Randall, Judge

Independent School District No. 877

William F. Garber, Garber & Metcalf, P.A., 333 Parkdale Plaza, 1660 South Highway 100, Minneapolis, MN 55416-1531 (for relator)

Paul C. Ratwik, Kevin J. Rupp, Jill E. Coyle, Ratwik, Rozak & Maloney, P.A., 300 Peavy Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondent)

Considered and decided by Randall, Presiding Judge, Norton, Judge, and Forsberg, Judge[*].



School district placed teacher on unrequested leave of absence by non-renewing teacher's contract pursuant to Minn. Stat. § 125.12, subd. 3 (1996). Teacher appeals claiming he was not a probationary teacher at the time school district placed him on unrequested leave of absence and thus, he was entitled to continuing contract rights. We affirm in part, reverse in part, and remand.


Beginning with the 1991-92 school year and continuing through the 1995-96 school year, relator Greg Adler was employed by Wright Technical Center (WTC) as an instructor. During this period, WTC held a contract with respondent Independent School District No. 877 to provide, among other things, instructor services. As a result of the contract between WTC and School District No. 877, Adler spent 50% of his teaching time teaching at WTC and 50% of his time teaching within respondent School District. It is undisputed that during this time Adler was paid by WTC.

Beginning in the 1994-95 school year, Adler was hired under a standard part-time contract with respondent School District. This contract was independent of the contract between WTC and School District No. 877. Under the terms of the contract, Adler taught a one-credit course one hour per day during the second semester of the 1994-95 school year. This amounts to a .09 Full Time Equivalent (FTE).[1] For his performance under this contract, Adler was paid directly by respondent School District.

During the 1995-96 school year, Adler again taught the one section course. This time, however, Adler received no compensation from respondent School District for his services, nor did Adler seek compensation for those services. Also during the 1995-96 school year, Adler served as the "Senior High Vo-Ag Chairperson and SCAC Member" under a separate agreement. The agreement was entered into under a form entitled: "Extra Duty or Extended Assignments." The agreement expressly states:

This assignment is not included as part of your contract with the school district under M.S. 125.12, the Minnesota Tenure Law, and performance of your teaching duty is separate and apart from performance of the assignment.

In 1996, Adler resigned from WTC. During the 1996-97 school year Adler was hired under another Teacher Contract For Minnesota Public School Districts by respondent School District. Adler taught for the entire 1996-97 school year and then on April 21, 1997, the School District's Board voted not to renew his contract. On April 28, 1997, Adler received notice by letter regarding the Board's decision. Adler then filed his petition for writ of certiorari.


On appeal, a reviewing court will not disturb a school board's decision to place a teacher on unrequested leave of absence unless the decision is fraudulent, arbitrary, unreasonable, unsupported by substantial evidence, not within the school board's jurisdiction, or based on an erroneous theory of law. In re Bristol, 451 N.W.2d 883, 884 (Minn. App. 1990). Adler argues that by treating him as a probationary teacher rather than a continuing contract teacher, School District No. 877 proceeded under an erroneous theory of law.

The procedure for attaining continuing contract rights is defined by statute. The statute provides in relevant part that

[a] teacher who has completed a probationary period in any school district, and who has not been discharged or advised of a refusal to renew the teacher's contract pursuant to subdivision 3, shall have a continuing contract with such district.

Minn. Stat. § 125.12, subd. 4 (1996). The probationary requirement provides that:

[t]he first three consecutive years of a teacher's first teaching experience in Minnesota in a single school district shall be deemed to be a probationary period of employment, and after completion thereof, the probationary period in each school district in which the teacher is thereafter employed shall be one year.

Minn. Stat. § 125.12, subd. 3 (1996). The statute also states that "[d]uring the probationary period any annual contract with any teacher may or may not be renewed as the school board shall see fit." Minn. Stat. § 125.12, subd. 3.

Here, Adler argues that because he taught 50% of the time in the school district beginning with the 1991 school year and continuing through the 1995-96 school year, and was neither non-renewed nor discharged, he became a .50 FTE continuing contract teacher in School District No. 877. Contrary to Adler's argument, Minnesota law states that "[t]he initial employment of the teacher in the district shall be by written contract, signed by the teacher and by the chair and clerk." Minn. Stat. § 125.12, subd. 2 (1996);

see also Rochester Educ. Ass'n v. Independent Sch. Dist. No. 535, 271 N.W.2d 311, 315 (Minn. 1978) (quoting statute).

[T]he law requires a written contract of employment between the parties, * * * neither party can waive such a requirement, and * * * the only written contract recognized by the statute after a teacher has served the probationary period is a continuing contract.

Op. Att'y Gen. 172-C-5 (Nov. 29, 1972). Because Adler had no written contract with School District No. 877 until the 1994-95 school year, his relationship with the school district did not fall under the provisions of Minn. Stat. § 125.15 (1996).

Adler further argues that there is evidence that he had a contract with respondent School District because the "continuing contract" was mutually modified when: (1) the School District "extended his .50 FTE contract" by offering him the .09 FTE position during the 1994-95 school year, and (2) the School District "extended his contract from a .59 FTE position to a 1.0 FTE position." But Adler had no contract with respondent School District, and there could be no modification of a nonexistent contract. Thus, Adler's argument fails.

Adler next argues that he and respondent School District acted as if they had a continuing contract relationship because the School District evaluated and observed Adler as it would have any probationary teacher and because respondent School District treated Adler in every respect as a regular contract teacher. However, because the statute

expressly calls for a written contract, the relationship between Adler and respondent School District is not recognized under Minn. Stat. § 125.12.

Moreover, the evidence in the record indicates that the parties did not necessarily act as if Adler had a contract with respondent School District. Adler was never placed on School District No. 877's seniority list, and Adler did not object to his absence from the list. This conduct is inconsistent with the conduct of parties acting as if they have a contract. This is especially true where Adler's name did not appear on the school district's seniority list. Coupled with the fact that Adler never raised an objection to his absence from such a list, we will not assume a contract by implication. Thus, we reject Adler's claim that he attained continuing contract rights with respondent School District prior to the 1994-95 school year.

But, beginning with the 1994-95 school year, Adler did enter into a written contract agreement with respondent School District. The contract in relevant part states:



The School Board of Independent School District No. 877 of the State of Minnesota, Buffalo, Minnesota, enters into this agreement, pursuant to M.S. 125.12 as amended, with Greg Adler a legally qualified and licensed teacher who agrees to teach in the public schools of said district as Computer Science Teacher for the school year 1994 to 1995.

* * * *

2. Duration: This contract is subject to the provisions of M.S. 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. Thereafter this contract shall remain in full force and effect except if modified by mutual consent of the school board and the teacher or unless terminated as provided by law, or by written resignation pursuant to M.S.125.12.

* * * *

7. In Consideration thereof, the school board agrees to pay said teacher the following annual salary:

$ 2,344.41 For basic services

(.09, one additional class for the 2nd semester

at Buffalo Junior High)

This contract for the 1994-95 school year was signed by the chairperson and clerk of the board as well as by the teacher as required under Minn. Stat. § 125.12, subd. 2.

Adler argues that this .09 FTE contract was sufficient to satisfy the one-year probationary period required by Minn. Stat. § 125.12, subd. 3.[2] Minn. Stat. § 125.12, subd. 3 "permits only one contract between a teacher and a school board in a single 12 month period." Poirier v. Independent Sch. Dist. No. 191, 255 N.W.2d 400, 404 (Minn. 1977). A teacher, as a party to either an annual or a continuing contract, is not required to provide services during the entire contract term. Id. Here, the contract Alder signed with the school district states that it is "for the school year 1994 to 1995," and that it "is subject to the provisions of M.S.125.12 as amended."

Minnesota courts have found that when a contract is entered into between a teacher and a school board under the provisions of the statute, the contract is an annual contract within the meaning of the statute. See Poirier, 255 N.W.2d at 404 (holding contract was annual contract where contract stated it was formed pursuant to Minn. Stat. § 125.12, it was for the school year and compensation would be an annual salary). The contract at issue in this case, by its own terms, declares that it is for the school year and that it is entered into subject to the statute. Thus, based on the plain language of the contract, Adler's 1994-95 contract with respondent School District falls under the statute.

Adler argues that the .09 position entitles him to .09 FTE continuing contract rights. "[T]he tenure act recognizes that teachers (in the generic sense) occupy a variety of different positions which involve different duties and compensation." Minneapolis Fed'n of Teachers, Local 59 v. Minneapolis Special Sch. Dist. No. 1, 270 N.W.2d 773, 778 (Minn. 1978). Where a teacher holds any position, which satisfies the probationary requirements, that "teacher" is entitled to tenure rights equal to that position. Here, we conclude that Adler, although not entitled to full-time tenure rights, is entitled to .09 FTE tenure rights.

Respondent School District argues Adler was hired in response to a "scheduling emergency" and thus, Adler was not entitled to continuing contract rights. The school district relies on Krug v. Independent Sch. Dist. No. 16, 293 N.W.2d 26 (Minn. 1980)

and Stiener v. Independent Sch. Dist. No. 625, 262 N.W.2d 173 (Minn. 1978) to support this proposition. We disagree.

First, in Krug, a school district argued that the position of nurse did not qualify as a teaching position and, as such, the position did not entitle the nurse to tenure or seniority rights as a "teacher." 293 N.W.2d at 30-31. The Minnesota Supreme Court, however, rejected this argument and held that because the nurse was required to hold a professional license issued by the board of teaching, she was a "teacher" under the provisions of Minn. Stat. § 125.12, subd. 1. Id. at 30. The court also concluded that she was eligible to acquire tenure and seniority rights. Id. at 31.

Second, in Stiener, a teacher argued that he was hired as a regular, full-time teacher and that he was therefore entitled to the benefit of the termination procedures contained in Minn. Stat. § 125.17, the Teacher Tenure Act. 262 N.W.2d at 173. The school district argued that the teacher was hired in an emergency situation for less than one year and that the parties intended the contract to be "permissibly self-terminating" at the end of the school year.[3] Id.

Under those facts, the Minnesota Supreme Court found that the teacher "fully understood that he was hired merely for the remainder of the school year with no privileges concerning future teaching positions." Id. at 174. In addition, the court

found that "[n]ot only was the [teacher] fully apprised of the terms of his contract, but he also fully accepted those terms." Id. The court affirmed the district court's determination that the contract did not fall under the Teacher Tenure Act provisions and that the teacher was not entitled to the Act's termination procedures.

But here, the contract between Adler and respondent School District expressly states that it is subject to the provisions of Minn. Stat. § 125.12. It does not state that it is an emergency contract. Rather, the contract was a standard contract for a .09 FTE teaching position that falls under Minn. Stat. § 125.12. Adler is entitled to continuing contract rights for a .09 FTE teaching position, as following that year, respondent did not formally "non-renew" Adler. In the world of school board teacher contract negotiations, when you do not formally "non-renew", it can become the equivalent of successfully passing your year of probation. See Minn. § 125.12, subd. 3 (requiring school board to provide written notice of non-renewal for the following school year prior to June 1). Thus, on these facts, Adler successfully completed his probationary year, at least as to his .09 contract rights.

Respondent School District argues that if Adler had attained continuing contract rights at the completion of the 1994-95 school year he should have filed his writ following the respondent School District's failure to continue the .09 contract during the 1995-96 school year. Further, the school district argues that because Adler failed to file his writ at that time, his writ is now untimely. Minnesota law states that

[n]o writ of certiorari shall be issued, to correct any proceeding, unless such writ shall be issued within 60 days after the party applying for such writ shall have received due notice of the proceeding sought to be reviewed thereby.

Minn. Stat. § 606.01 (1996). "'[D]ue notice' requires, at a minimum, that notice be given in writing and that it be reasonably calculated to reach the [party]." Bahr v. City of Litchfield, 420 N.W.2d 604, 607 (Minn. 1988).

Here, Adler received written notice of respondent School District's action on April 28, 1997. Within 60 days, on June 20, 1997, Adler filed his petition for writ of certiorari. Therefore, regardless of Adler's possible knowledge that his contract had not been continued, it was not until he was served with written notice of the school board's action that the statute of limitations relevant to this matter started to run. Because Adler filed his writ within 60 days of receiving written notice, his appeal is timely.

We affirm the school board's determination that Adler had no continuing contract rights prior to the 1994-95 school year. However, we reverse the school district's determination that Adler's .09 FTE contract for the 1994-95 school year was insufficient to satisfy the one-year probationary period. We remand to the school district for a determination of the relationship between the parties based on Adler's right to .09 continuing contract rights.

Affirmed in part, reversed in part, and remanded.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.

[ ] 1 FTE refers to a numerical status to which a teaching position is valued based on the amount of time the teacher is credited for his or her teaching services. A 1.0 FTE status is equivalent to one full-time teaching position whereas 0.5 FTE equals a one-half time teaching position.

[ ]2 Respondent School District conceded at oral argument that Adler previously satisfied the three-year probationary period for first-time teachers required under Minn. Stat. § 125.12, subd. 3.

[ ]3 In Stiener, the teacher and the school district entered into a contract which by its express terms hired the teacher for the period from December 10, 1973, until June 7, 1974. 262 N.W.2d at 173.