Miller v. School Dist. No. 18-0011 of Clay Cty.

has shown that he has successfully completed California’s State
Bar Ethics School, taken and passed the Multistate Professional
Responsibility Examination, and shown that he has complied
and is complying with his term of probation and other condi-
tions imposed by California.
CONCLUSION
The motion for reciprocal discipline is granted. It is the
judgment of this court that Loftus should be and is suspended
from the practice of law for a period of 90 days immediately
following the date when he becomes otherwise eligible for
reinstatement from his current nondisciplinary suspension for
nonpayment of dues and assessments.
Loftus shall comply with Neb. Ct. R. § 3-316, and upon
failure to do so, he shall be subject to punishment for contempt
of this court. He is also directed to pay costs and expenses in
accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue
2007) and Neb. Ct. R. §§ 3-310(P) and 3-323(B) within 60
days after an order imposing costs and expenses, if any, is
entered by this court.
Judgment of suspension.
C onnolly, J., not participating.
shari miller , appellee , v. sChool distriCt no. 18-0011
of C lay C ounty, nebraska , also known as harvard
publiC sChools , a politiCal subdivision of
the state of nebraska , appellant.
775 N.W.2d 413
Filed December 4, 2009. 	No. S-09-016.
1. Schools and School Districts: Termination of Employment: Teacher
Contracts: Evidence: Appeal and Error. The standard of review in a proceed-
ing in error from an order of a school board terminating the contract of a tenured
teacher is whether the school board acted within its jurisdiction and whether there
is sufficient evidence as a matter of law to support its decision.
2. Schools and School Districts: Evidence. The evidence presented to a school
board is sufficient as a matter of law if the school board could reasonably find the
facts as it did on the basis of the testimony and exhibits contained in the record
before it.
1018 	278 NEBRaSka REPORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

3. Schools and School Districts: Statutes: Intent: Appeal and Error. The intent
of the tenured teacher statutes is to guarantee a tenured, or permanent certificated,
teacher continued employment except where specific statutory grounds for termi-
nation are demonstrated.
4. Constitutional Law: Statutes: Governmental Subdivisions. a governmental
entity may not accomplish indirectly what it is prohibited from doing directly,
whether prohibited by constitutional or statutory provisions.
appeal from the District Court for Clay County: viCky l.
Johnson, Judge. affirmed.
karen a. Haase, Steve Williams, and adam J. Prochaska, of
Harding & Shultz, P.C., L.L.O., for appellant.
Scott J. Norby, of McGuire & Norby, for appellee.
heaviCan, 	C.J., 	wright, 	C onnolly, 	gerrard, 	stephan,
mCC ormaCk, and miller-lerman, JJ.
stephan, J.
Nebraska law permits a school district to terminate the
contract of a permanent certificated employee only for certain
reasons.1 One reason is a reduction in force.2 The question
presented in this appeal is whether terminating the contract of
a permanent certificated art teacher who had been employed
by a school district on a half-time basis and replacing her with
a probationary art teacher employed by another school dis-
trict and shared on a half-time basis pursuant to an interlocal
agreement constitutes a reduction in force. We conclude that it
does not.
BaCkGROUND
For 23 years, Shari Miller was employed by School District
No. 18-0011 of Clay County, commonly known as Harvard
Public Schools (School District), as its art teacher. She provided
art instruction to students in grades 4 through 12. In 1997,
Miller’s position was reduced from a .75 full time equivalency
(FTE) to a .5 FTE due to low enrollment in the art program.
after 1997, Miller also taught art classes in the aurora Public
1 See Neb. Rev. Stat. § 79-829 (Reissue 2008).
2 § 79-829(2) and Neb. Rev. Stat. §§ 79-846 to 79-849 (Reissue 2008).
MILLER v. SCHOOL DIST. NO. 18-0011 OF CLay CTy. 	1019
Cite as 278 Neb. 1018

Schools on a .5 FTE basis, in addition to her .5 FTE position
as a certificated teacher with the School District.
at a January 14, 2008, meeting, the board of education
of the School District (School Board) began discussing a
possible expansion of its interlocal agreement with the Clay
Center school district. Under the existing agreement, the
two districts shared certain personnel, including teachers for
Spanish, social studies, and industrial technology, as well as
a paraprofessional and coaches. The School Board did not
give public notice of the nature of the meeting because it did
not want to “scare” its teachers. a short time later, the cur-
riculum committees of both the School Board and the Clay
Center school board met to discuss the possibility of sharing
personnel for their art and speech pathology programs. No
public notice was given, nor was an agenda issued or minutes
prepared of the meeting.
at the time of these meetings, the Clay Center school district
employed its own tenured 1.0 FTE art teacher. However, on
February 3, 2008, that teacher submitted her resignation, effec-
tive at the end of the school year. On February 13, the Clay
Center school district’s superintendent, Lee Sayer, informed
the Clay Center school board of the resignation and stated,
“[The School District] wants to share [the art] position with us
for next year, but we will need to hire a replacement teacher
for next year. . . . This needs to be confidential because [the
School District] is going to RIF their art teacher who resides
in Clay Center, and is unaware of this action.” (Emphasis in
original.) The Clay Center school district advertised the full-
time art teacher position for the 2008-09 school year and even-
tually hired a person who had been teaching in kansas. Miller
saw the position advertised but did not apply for it. Sayer did
not discuss the position with Miller, because he thought it was
“illegal” to contact teachers under contract with another school.
The School District’s superintendant, Larry Turnquist, did not
inform Miller of the position or advise her to apply, because
he felt the hiring decision was the responsibility of the Clay
Center school district.
On February 20, 2008, in an e-mail message to the School
Board, Turnquist outlined the process for terminating Miller’s
1020 	278 NEBRaSka REPORTS

contract, stating that the School Board would first need to vote
to eliminate the art program. Turnquist also stated:
The teacher may ask for a hearing, but, the curriculum is
totally in the hands of the board so if a hearing is called,
it will be used as an opportunity by the teacher and the
teacher’s union (NEa) to intimidate the board. They know
that once the board vote[s] to reduce, it is all over.
In followup communications with the School Board, Turnquist
warned that the decision to eliminate the art program may be
challenged and he recommended that the School Board cite
only the Clay Center school district’s offer to share its art
teacher as the change in circumstance necessitating a reduction
in force, rather than “create a school wide level of fear” with
talk of budgetary concerns.
When Sayer advised Turnquist that the Clay Center school
district had hired an art teacher for the 2008-09 school year,
Turnquist requested a formal proposal for the sharing arrange-
ment they had been discussing. Sayer then sent Turnquist a
letter dated February 28, 2008, formally proposing that the
two school districts share the art teacher position on a .5
FTE basis.
On March 3, 2008, Turnquist gave Miller written notice that
the School District was considering a reduction in force which
would eliminate her position and that the School Board would
discuss the matter at a meeting scheduled for, and subsequently
held on, March 10. Miller was invited to the meeting but, on
the advice of her union representative, she did not attend. at
the meeting, the School Board voted unanimously to reduce the
School District’s art program from .5 FTE to 0 FTE and recom-
mended that the School District contract with the Clay Center
school district for the provision of an art teacher.
Following notification of her proposed contract termination,
Miller requested a hearing before the School Board which
took place on July 21, 2008. Following the hearing, the School
Board found that the following changes in circumstance neces-
sitated a reduction in force:
[T]he need for the [S]chool [D]istrict to be more efficient
in the use of its resources, the increasing cost of operating
the [S]chool [D]istrict, the reduced financial support for
MILLER v. SCHOOL DIST. NO. 18-0011 OF CLay CTy. 	1021
Cite as 278 Neb. 1018

the [S]chool [D]istrict, the uncertainty of state aid, limita-
tions on the [S]chool [D]istrict’s ability to levy property
taxes, statutory budgetary limits, the low student enroll-
ment in [the School District], the low enrollment in the
art program [in the School District], and the opportunity
for the [School] Board . . . to contract with the Board of
Education of Clay Center Public Schools for the provision
of art instruction services.
The School Board also found that the change in circumstances
specifically related to Miller, as her only teaching endorsement
was in art and she did not qualify for any other vacancies in
the district.
Miller filed a petition in error in the district court for
Clay County, generally alleging the School Board’s deci-
sion violated the reduction in force statutes, because it was
not supported by competent evidence regarding a change in
circumstances necessitating a reduction in force and allowed
for the retention of a probationary employee to render serv-
ices for which Miller was qualified to perform. at the hear-
ing, Turnquist testified regarding the circumstances which
led to Miller’s termination, as summarized above. Turnquist
admitted that under its proposed course of action, the only
change in the district’s art program would be the identity of
the art teacher and a savings of approximately $8,785 as a
consequence of replacing Miller with the shared probationary
teacher employed by the Clay Center school district. Turnquist
further conceded that cost savings would be approximately the
same if the School District were to hire a new probationary
teacher to replace Miller.
Following the hearing, the district court issued an order
reversing and vacating the decision of the School Board. The
court found that there had been no change in circumstances or
reduction in force because the School District did not reduce
its staff or demonstrate a reduced need. The School District
perfected this timely appeal, which we moved to our docket on
our own motion pursuant to our statutory authority to regulate
the caseloads of the appellate courts of this state.3
3 Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
1022 	278 NEBRaSka REPORTS

aSSIGNMENTS OF ERROR
The School District assigns, restated and consolidated, that
the district court erred in determining that (1) there was not a
change in circumstances necessitating a reduction in force and
(2) the School District’s termination of Miller’s contract was
not a reduction in force.
STaNDaRD OF REVIEW
[1,2] The standard of review in a proceeding in error from
an order of a school board terminating the contract of a tenured
teacher is whether the school board acted within its jurisdiction
and whether there is sufficient evidence as a matter of law to
support its decision.4 The evidence presented to a school board
is sufficient as a matter of law if the school board could reason-
ably find the facts as it did on the basis of the testimony and
exhibits contained in the record before it.5
Statutory interpretation is a question of law, which an appel-
late court resolves independently of the trial court.6
aNaLySIS
as a permanent certificated employee, Miller had a cer-
tain degree of job security guaranteed by law. But her con-
tract could be terminated for one of the reasons specified in
§ 79-829, including reduction in force. Because this was the
sole reason given for the termination, we must first resolve the
disputed issue of whether the School District’s agreement to
share an art teacher with another district constituted a reduction
in force. The district court found that the School District had
a .5 FTE art teacher both before and after the purported reduc-
tion in force. The district court further found:
[The School District’s] curriculum was not changed, its
staffing needs did not change; consequently, there was
4 See, Wilder v. Grant Cty. Sch. Dist. No. 0001, 265 Neb. 742, 658 N.W.2d
923 (2003); Nickel v. Saline Cty. Sch. Dist. No. 163, 251 Neb. 762, 559
N.W.2d 480 (1997).
5 See id.
6 Metropolitan Comm. College Area v. City of Omaha, 277 Neb. 782, 765
N.W.2d 440 (2009). See, also, Wilder v. Grant Cty. Sch. Dist. No. 0001,
supra note 4.
MILLER v. SCHOOL DIST. NO. 18-0011 OF CLay CTy. 	1023
Cite as 278 Neb. 1018

NO reduction in force. The only change was a lower
overall cost because the . . . School Board agreed to
utilize another teacher at a lower rate of pay by sharing
her salary with the Clay Center Board of Education. The
. . . School District “RIF” reduced its costs by replacing
a teacher with 23 years of experience with a probation-
ary teacher from another school district who could be
obtained at a bargain.
In assigning error to this finding, the School District argues
that there “has clearly been a reduction in force at [the School
District] as the number of teachers employed by the district
has been reduced.”7 The School District further argues that it
made a transparent decision “to cease providing art to its stu-
dents through district employees and to begin doing so through
a cooperative agreement in order to save money.”8 It contends
that its authority to do so is entitled to the traditional deference
which this court has given to school boards in making this type
of decision.9
The threshold question we must address in this case is not
whether the School District properly exercised its broad discre-
tion in carrying out a reduction in force, but, rather, whether
a reduction in force actually occurred. If it did, then we must
decide whether it was carried out in the manner which the
statutes require. But if there was no reduction in force, the
School District’s stated reason for terminating Miller’s contract
would disappear.
[3] We have previously held that the intent of the tenured
teacher statutes, including § 79-829, is to guarantee a ten-
ured, or permanent certificated, teacher continued employment
except where specific statutory grounds for termination are
demonstrated.10 Section 79-829(2) provides that a teacher’s
contract may be terminated due to “reduction in force as set
7 Brief for appellant at 33.
8 Id. at 31.
9 See, Nickel v. Saline Cty. Sch. Dist. No. 163, supra note 4; Cross v. Board
of Governors, 204 Neb. 383, 281 N.W.2d 925 (1979).
10 See, Moser v. Board of Education, 204 Neb. 561, 283 N.W.2d 391 (1979);
Witt v. School District No. 70, 202 Neb. 63, 273 N.W.2d 669 (1979).
1024 	278 NEBRaSka REPORTS

forth in sections 79-846 to 79-849.” although the statute does
not specifically define the phrase “reduction in force,” this
court has held that as used in the teacher tenure statutes, it
“involves terminating a teacher[’s contract] ‘due to a surplus
of staff.’”11 School districts are statutorily required to adopt
reduction in force policies, and “[n]o such policy shall allow
the reduction of a permanent or tenured employee while a pro-
bationary employee is retained to render a service which such
permanent employee is qualified . . . to perform . . . .”12 Section
79-847 provides:
Before a reduction in force occurs, the school board
or board of education and the school district administra-
tion shall present competent evidence demonstrating that
a change in circumstances has occurred necessitating a
reduction in force. any alleged change in circumstances
must be specifically related to the teacher or teachers to
be reduced in force, and the board, based upon evidence
produced at the hearing required by sections 79-824 to
79-842, shall be required to specifically find that there are
no other vacancies on the staff for which the employee
to be reduced is qualified by endorsement or professional
training to perform.
By enacting these statutes, “‘the Legislature has attenuated
a school [district’s] discretion to pare its staff in the face
of reduced needs and has imposed specified procedures for
achieving a reduction in force.’”13
applying these principles, we have held that a reduction
in force occurred where a community college eliminated its
machine shop program due to a decline in enrollment and
decided not to renew the contract of the sole machine shop
11 Roth v. School Dist. of Scottsbluff, 213 Neb. 545, 548, 330 N.W.2d 488,
491 (1983) (superseded by statute on other grounds as stated in Kennedy
v. Board of Ed. of Sch. Dist. of Ogallala, 230 Neb. 68, 430 N.W.2d 49
(1988)), quoting Moser v. Board of Education, supra note 10.
12 § 79-846.
13 Wilder v. Grant Cty. Sch. Dist. No. 0001, supra note 4, 265 Neb. at 747,
658 N.W.2d at 927, quoting Trolson v. Board of Ed. of Sch. Dist. of Blair,
229 Neb. 37, 424 N.W.2d 881 (1988).
MILLER v. SCHOOL DIST. NO. 18-0011 OF CLay CTy. 	1025
Cite as 278 Neb. 1018

instructor, and no new teacher was hired to fill a position for
which the former machine shop instructor was qualified.14 But
we determined that no reduction in force occurred where a
teacher was told that her position had been eliminated, and the
school district subsequently hired a new teacher to fill a posi-
tion for which the discharged teacher was qualified.15
[4] We conclude that the district court correctly determined
that no reduction in force occurred in this case. There was no
“surplus” of staff in the art department, i.e., “the amount that
remains when use or need is satisfied,”16 as evidenced by the
fact that the School District planned to replace its only .5 FTE
art teacher with another .5 FTE art teacher. The School District
was not paring its staff to meet reduced needs; it was changing
the method by which it secured the services of a .5 FTE art
teacher in order to save money. The School District would have
paid its share of the new teacher’s salary and fringe benefits,
but the amount would have been less than it had paid Miller,
primarily because the shared teacher held probationary status
and earned a lower salary. We note that the School District
would have been legally prohibited by Nebraska’s teacher
tenure statutes from terminating Miller’s contract and then
hiring a probationary teacher to replace her.17 a governmental
entity may not accomplish indirectly what it is prohibited from
doing directly, whether prohibited by constitutional or statu-
tory provisions.18
The School District urges us to follow other state courts
which have upheld termination of tenured teachers’ contracts
in circumstances where their duties were assumed by other per-
sonnel. We have reviewed the cases cited by the School District
and find them to be distinguishable, in that none involved
“reduction in force” as a statutory basis for termination of a
teacher’s contract and all involved factual circumstances which
14 Cross v. Board of Governors, supra note 9.
15 Witt v. School District No. 70, supra note 10.
16 Webster’s Third New International Dictionary, Unabridged 2301 (1993).
17 See, § 79-846; Moser v. Board of Education, supra note 10.
18 Myers v. Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d 776
(2006).
1026 	278 NEBRaSka REPORTS

are different in varying degrees from this case. The School
District’s core argument is that it should be free to structure
its workforce in the most economical way possible, in this
case, through an interlocal agreement for the sharing of a
teacher with another school district. It may well be that under
certain circumstances, a teacher-sharing arrangement between
school districts would be an appropriate and effective means
of controlling costs and conserving scarce resources. But under
Nebraska law, reduction of personnel cost is not itself a legal
basis for terminating the contract of a tenured teacher; the
savings must be achieved by a reduction in force. The district
court correctly concluded that no reduction in force occurred
in this case.
CONCLUSION
For the reasons discussed, we affirm the judgment of the
district court.
affirmed.
BSB CONSTR. v. PINNaCLE BaNk 	1027
Cite as 278 Neb. 1027
bsb C onstruCtion, inC., a nebraska Corporation,
appellee and Cross -appellant, v. pinnaCle bank ,
a nebraska Corporation, appellant
and Cross -appellee .
776 N.W.2d 188
Filed December 4, 2009. 	No. S-09-018.
1. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
2. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as to any material fact
or as to the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
4. Judgments: Appeal and Error. In a bench trial of a law action, the trial court’s
factual findings have the effect of a jury verdict and will not be disturbed on
appeal unless clearly erroneous.