Harhay v. Board of Education

687 A.2d 1313, 44 Conn. App. 179, 1997 Conn. App. LEXIS 36
CourtConnecticut Appellate Court
DecidedFebruary 4, 1997
Docket15071
StatusPublished
Cited by3 cases

This text of 687 A.2d 1313 (Harhay v. Board of Education) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harhay v. Board of Education, 687 A.2d 1313, 44 Conn. App. 179, 1997 Conn. App. LEXIS 36 (Colo. Ct. App. 1997).

Opinion

SCHALLER, J.

The plaintiff, Anne E. Harhay, a tenured teacher employed by the defendant Ellington board of education (board) appeals from the judgment of the trial court dismissing her appeal from the defendant’s decision to terminate her employment. The plaintiff claims that the court improperly dismissed her appeal by determining (1) that the time requirements set forth in General Statutes § 10-151 (d) are directory rather than mandatory and (2) that the impartial hearing panel properly excluded evidence as irrelevant on claims that the panel found it lacked the authority to decide pursuant to General Statutes § 10-151 (d) (5)1. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of this appeal. The plaintiff was employed by the board as a certified art teacher for grades prekindergarten through twelve. On April 14, 1993, the board voted to eliminate two elementary art teacher positions, one of which was occupied by the plaintiff. By a letter dated August 11, 1993, the superintendent of the Ellington public schools informed the plaintiff that he intended to recommend that the board place the termination of her contract under consideration at an upcoming hearing. In this letter, he also informed the plaintiff of her rights under § 10-151, including her right to request a statement of reasons for the termination, her right to request a hearing, and her right to be represented by counsel. Pursuant to § 10-151 (d), the plaintiff requested, and the board provided, a written statement of its reasons for the decision to terminate her employment. In its letter, the board stated it was terminating the plaintiffs position (1) because the position that the [181]*181plaintiff occupied was eliminated and no other position for which the plaintiff was certified existed in the school system, and (2) because of other due and sufficient cause including budgetary considerations and administrative recommendations consistent with the board’s reduction in force plan based on an analysis of curriculum and staffing needs.

By a letter dated September 7, 1993, the plaintiff requested a hearing before an impartial panel, pursuant to § 10-151 (d). Because of a lack of communication between the plaintiffs attorney and the board’s attorney, the parties did not choose their respective panel members until October, 1993. After the parties selected their panel members, the panel members designated a third member as chairman.

In December, 1993, the chairman of the three member panel informed the parties that the termination hearing would be held on January 4, 1994. The hearing took place on that date. On March 8, 1994, the panel recommended, in a two-to-one decision, that the board terminate the plaintiffs employment contract. A majority of the panel also concluded that the plaintiffs employment was properly terminated under the provisions of § 10-151 (d). At a meeting held March 16, 1994, the school board voted to accept the panel’s recommendation, effective March 17, 1994.2 The board gave the plaintiff written notice of its decision.3 Pursuant to § 10-151 (f), the plaintiff appealed to the Superior Court from the board’s decision. The trial court affirmed the board’s [182]*182decision and dismissed the plaintiffs appeal. This appeal followed. .

I

The plaintiff first claims that the trial court improperly found that the time periods set forth in § 10-151 (d) with respect to the commencement of the hearing and with respect to the recommendation of the hearing panel are directory in nature rather than mandatory.4 We agree with the trial court.

We acknowledge first that our courts have held that the procedural requirements of § 10-151 (d) must be strictly followed. Petrovich v. Board of Education, 189 Conn. 585, 590, 457 A.2d 315 (1983); LaCroix v. Board of Education, 2 Conn. App. 36, 40, 475 A.2d 1110 (1984). In Petrovich and LaCroix, our courts held that failure of the board to provide a tenured teacher with written notice, prior to her termination, that termination of her contract was “under consideration” was error. Petrovich v. Board of Education, supra, 589-90; LaCroix v. Board of Education, supra, 40-41. In the present case, the board did properly notify the plaintiff, prior to her termination, that termination of her contract was under consideration. It is undisputed, however, that the board did not strictly comply with the time requirements of § 10-151 (d) with respect to the commencement of the hearing and with respect to the recommendation of the hearing panel. Whether the board’s noncompliance is improper depends on whether these particular statutory provisions are directory or mandatory.

“Well established principles of statutory construction govern our determination of whether a statutory time period is mandatory or directory. Our fundamental [183]*183objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . .’’(Citations omitted; internal quotation marks omitted.) State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994).

We begin our analysis with the language of § 10-151 (d) which provides in pertinent part: “Within twenty days after receipt of written notice by the board of education that contract termination is under consideration, such teacher may file with such board a written request for a hearing. . . . Such hearing shall commence within fifteen days after receipt of such request, unless the parties mutually agree to an extension .... Within ninety days after receipt of the request for a hearing, the impartial hearing panel . . . unless the parties mutually agree to an extension, shall submit written findings and a recommendation to the board of education as to the disposition of the charges against the teacher, and shall send a copy of such findings and recommendation to the teacher. . . .”

We note first that “the use of the word ‘shall,’ [in § 10-151 (d)] though significant, does not invariably establish a mandatory duty.” Oller v. Oller-Chiang, 230 Conn. 828, 838, 646 A.2d 822 (1994). The more significant consideration in our determination whether a provision is mandatory or directoiy “is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. . . . If it is a matter of substance, the statutory provision is mandatoiy. If, however, the legislative provision is designed to secure order, system and dispatch [184]*184in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. . . .

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Cite This Page — Counsel Stack

Bluebook (online)
687 A.2d 1313, 44 Conn. App. 179, 1997 Conn. App. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harhay-v-board-of-education-connappct-1997.