Unpublished Disposition, 869 F.2d 1497 (9th Cir. 1989)

MEMORANDUM^* 

J. Steven Hikel ("Hikel") filed suit against Ronald L. Mattson ("Mattson") and the Board of Trustees of School District No. 1 of Fergus County ("Board"). Hikel sought damages as a result of the alleged breach of an implied covenant of good faith and fair dealing, wrongful termination and negligence. The district court granted summary judgment in favor of Mattson and the Board, and dismissed Hikel's complaint. Hikel appeals. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

BACKGROUND

Hikel was employed by the Board as an elementary school principal at Highland Park Elementary School in Lewiston, Montana, from 1981 through 1984. Mattson was school superintendent during that time. For each of the years during which Hikel served as principal, he was employed under a one-year term contract. In 1984 the Board voted not to offer Hikel another contract for the 1984-85 school year. Hikel alleges this decision was made as a result of his performance on an evaluation administered by Mattson. The evaluation contained twenty-five new items, on twenty-four of which Hikel was rated marginal or poor. Hikel contends that the evaluation differed substantially from the one on which he reasonably expected to be graded, and that Mattson and the Board wrongfully declined to renew his employment contract. The Board and Mattson deny Hikel's allegations and argue they are immune from suit under Montana law.

STANDARD OF REVIEW

Summary judgment is reviewed de novo to determine whether, upon viewing the evidence in a light most favorable to the nonmoving party, there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986); Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986). We may affirm on any ground finding support in the record. Vernon v. Heckler, 811 F.2d 1274, 1277 (9th Cir. 1987); Golden Nugget, Inc. v. American Stock Exchange, Inc., 828 F.2d 586, 590 (9th Cir. 1987).

ANALYSIS

Montana law applies to the issues raised by the appeal in this diversity action. Under Montana law, legislative bodies, including school boards, are immune from suit for damages "arising from the lawful discharge of an official duty associated with the introduction or consideration of legislation or action by the legislative body." Mont.Code Ann. Sec. 2-9-111(3) (1985).¹  This statute provides immunity from actions for damages arising from any lawful discharge of an official duty, regardless of motive behind the action taken. Bieber v. Broadwater County, 45 Mont. 1218, 759 P.2d 145 (1988); Barnes v. Koepke, 44 Mont. 810, 736 P.2d 132, 134 (1987). The Montana Supreme Court held in Barnes that immunity under the statute will lie where it is shown that members of the legislative body had authority to take the disputed action. "We will not delve deeper in an attempt to discover the potential motives of decision makers." Barnes at 134. In Bieber, the Montana Supreme Court concluded that the decision by county commissioners to fire a county employee was the act of members of a legislative body and thus was covered under the express language of the statute. Bieber at 147. The Bieber court held that section 2-9-111 was constitutional because it was rationally related to a state's legitimate interest in insulating decisionmaking bodies from suit to prevent decisionmaking processes from being "hampered or influenced by frivolous lawsuits." Bieber at 148.

In the case before us, the Board lawfully voted not to renew Hikel's contract for another term. Under Mont.Code Ann. Sec. 20-4-206, the Board had the authority to decide whether to renew a non-tenured principal's contract for another term. Because the Board's action in choosing not to renew Hikel's contract was lawful and within its authority, the Board is immune from suit under the express language of section 2-9-111.

Hikel argues that Mattson should not be protected under Montana's immunity statute because he is not a member of the Board. This argument is without merit. The statute expressly extends immunity to agents of legislative bodies. As school superintendent, Mattson was an agent of the Board and was acting in that capacity in administering Hikel's performance evaluation. Under Montana law, both the Board and Mattson are immune from suit. Mont.Code Ann. Sec. 2-9-111.

Hikel also charged Mattson with violation of "the covenant of good faith and fair dealing in the employment relationship." According to the Supreme Court of Montana, " [b]reach of the duty owed to deal fairly and in good faith in the employment relationship is a tort...." Gates v. Life of Montana Insurance Co., 668 P.2d 213, 215 (Mont.1983). Under Montana law, there is no governmental immunity for torts. Mont.Code Ann. Sec. 2-9-102 ("Every governmental entity is subject to liability for its torts and those of its employees acting within the scope of their employment or duties whether arising out of a governmental or proprietary function....").

In the present case, however, since the defendants cannot be held liable for breach of contract because of their immunity, they cannot be liable for violation of the implied covenant of good faith.²  See Maxwell v. Sisters of Charity of Providence of Montana, 645 F. Supp. 937, 939 (D. Mont. 1986). Indeed, because the alleged tort violation is so intimately connected with the contract action for which immunity exists, it would violate the public policy underlying section 2-9-111 to permit Hikel to proceed with his tort cause of action.

Because we affirm the district court on the ground that the defendants are immune from suit, we do not reach Hikel's other arguments.

AFFIRMED.