Montana Attorney General Opinion 16-6

Opinion No.6. Schools-Teachers-Elementary State Certificates. HELD: Where an applicant for an elementary state certificate for teach- ers has had one such state certificate but has failed to qualify for a renewal by teaching thereunder for 18 months and has allowed same to lapse, the Board of Educational Examiners has discretionary power to grant or re- fuse such certificate in accordance with regulations established by such Board. December 12, 1934. Miss Elizabeth Ireland State Superintendent of Public Instruction The Capitol The question is submitted to our of- fice in relation to the right of an ap- plicant, a teacher, to receive a state certificate. This party has been elect- ed county superintendent and is re- quired to be the holder of a state cer- tificate before she can take office. (Chapter 118, Laws of Montana, 1929.) It appears that the applicant has it sufficient preliminary education ami a sufficient number of credits as re- quired under the laws of this State. The applicant is a graduate of a nor- mal school without the State of Mon- tana. In 1927 the applicant was granted a state certificate under the provi- sions of Section 1092, R. C. M. 1921, as amended by Chapter 131, subdivi- sion 6 (b) 3, Laws of 1923. The hold- er of this certificate did not teach under the same within the State of Montana, and same expired in the year 1933. The applicant applied for another certificate and on July 1, 1934, was granted a temporary state cer- tificate. Attention is also called to the fact that Section 1098, R. C. M. 1921, as amended by Chapter 147, Laws of 1931, page 345, relates to renewals of state certificates and provides that "no elementary or secondary state certificate shall be renewed unless said applicant shall have taught success- fully thereon for eighteen (18) months during the life of said certificate." As the applicant did not teach for 18 months during the period of her for- m€!r state certificate she is clearly not entitled to a renewal thereof under the prOVisions of the statute last quoted. The applicant submits that she is entitled to a state certificate under the provisions of Chapter 147, Laws of 1931, amending Section 1092, R. C. M. 1921, as amended, and in particu- lar under subdivision 5 (b) 2 thereof. Such Act is in part as follows: "An elementary state certificate may be issued by the State Board of Educa- tional Examiners to a graduate of any standard normal school or other high- er educational institution within or without the State in accordance with regulations established by said Board and approved by the State Board of Education, * * *." It may be that the legislature in- tended the question of a second state certificate to be covered solely by the provisions of the statute in relation to renewals, quoted above. It is ex- tremely difficult to determine what was the intention of the legislature in that regard. To hold that a teacher, who has one state certificate and is ineligible to a renewal thereof for failure to teach 18 months thereunder, may permit same to lapse and soon thereafter compel the issuance of another certificate as if such prior certificate had not been granted, is to destroy the law in re- lation to renewals. However, the statute which now au- thorizes a state certificate has been very materially amended since 1927, and it is possible that it was intended to cover all applications for state cer- OPINIONS OF THE ATTORNEY GENERAL 7 tificates (which are not renewals) subsequent to its enactment and yet may not authorize more than one cer- tificate under that particular statute. In other words, we may conclude that although a teacher may have had one state certificate prior to the amend- ment, she may have a second one after its amendment, and we may also hold that the new or amended statute would not authoriz~ two certificates by en- dorsement after its amendment but in such case the party could only se- cure a second certificate under the renewal provision. If the reasoning and conclusions in the last paragraph are questionable, we may reach a similar conclusion by an entirely different course of rea- soning. We cannot agree entirely with the contention of the applicant that by waiting until a certificate has expired the applicant can avoid all of the ef- fects of the renewal statute and in every case compel the issuance of a second certificate to one who has failed to ask for a renewal and who lacks the qualifications necessary under the law to obtain one. It seems a much more reasonable interpreta- tion to hold that in such cases the Board has a discretionary power to grant or refuse such certificate. In granting or refusing it under these circumstances the Board may act "in accordance with regulations estab- lished by such Board." These regula- tions may well require further teach- ing and further evidence of experi- ence and teaching ability of such ap- plicant before a second certificate shall be granted. Since the prior state certificate was issued, this applicant has studied and received four and one-half additional quarter credits from the San Fran- cisco state Teachers' College, and five additional quarter credits from the University of Montana, so that she presents somewhat different qualifications than when she made application for a certificate in 1927. A regulation of the State Board of Educational Examiners, in session on December 14, 1929, contained the reo quirement that for such a certificate the applicant must furnish proof of successful teaching under a temporary state certificate, which regulation has been interpreted to mean successful teaching for one year under such tem- porary certificate. This applicant is lacking in same in that she has not taught one year under her temporary certificate. The applicant has not had a state certificate under the statute since its amendment. The statute ex- pressly states that an applicant may have a certificate under the provi- sions of this paragraph. We do not believe that the fact that she had previously had a six-year certificate under this paragraph prior to its amendment, would prevent the issu- ance of a certificate to her at the pres- ent time. As to the rule of the Board men- tioned, in relation to one year's teach- ing under a temporary certificate, we believe that a liberal interpretation of the regulation mentioned might permit the State Board of Educa- tional Examiners to grant this appli- cant a certificate, if it believed her teaching requirements sufficient, but that the Board would not be required to do so, or, in other words, that the issuance of this certificate should be left to the discretion of such State Board of Educational Examiners.