Kurlander v. School Committee of Williamstown

451 N.E.2d 138, 16 Mass. App. Ct. 350, 1983 Mass. App. LEXIS 1402

• Court: Massachusetts Appeals Court
• Decided: July 13, 1983
• Status: Published

Opinions

Greaney, J.

This case consolidates Donald Kurlander’s appeal, initiated in the Superior Court, from the vote of the Williamstown school committee to dismiss him from his tenured teaching position with an action brought by eleven registered voters of Williamstown, which challenges certain procedures followed by the committee in considering the dismissal as a violation of the open meeting law, G. L. c. 39, §§ 23A-24. A judge of the Superior Court heard the cases together. The trial of the dismissal case was de nova as required by G. L. c. 71, § 43A.²

Kurlander was a tenured elementary art teacher in the Williamstown public school system. He was advised by letter of March 28, 1978, that the superintendent of schools had proposed to the Williamstown school committee that he be dismissed for inefficiency, unbecoming conduct, insubordination and “other good cause.”³ The letter also advised him of certain rights which accrued under G. L. c. 71, § 42, including the right to written charges of the causes for which dismissal is proposed and to a hearing at which he could be represented by counsel. A list of fourteen charges was subsequently furnished, which included references to specific incidents, dates and school personnel who witnessed or were involved in the events. The charges are set out in the Appendix following the dissenting opinion. The hearing before the committee commenced on August 7, 1978, and continued on various dates in August before concluding on September 1, 1978. Kurlander was represented by counsel who, the transcript discloses, approached his task vigorously, both in cross-examining witnesses and arguing points of law before the committee. Kurlander requested an open hearing, and the committee voted to hold one. All sessions of the hearing up to September 1 were held in public. On that day, at the conclusion of the evidence, counsel for the committee instructed the committee members on the law, and suggested that they deliberate in private “where each member . . . may frankly discuss the evidence,” and thereafter return to open session to vote on the question of dismissal. Kurlander objected, and the committee chairwoman announced that the deliberations would be private, as counsel for the committee had suggested. There was no vote on the question of a private session. Kurlander’s counsel subsequently objected to some of the instructions given by counsel for the committee, incorporating his previous objection to the private session. He did not, however, object to the lack of a vote to deliberate in private. Several hours later, the committee reconvened in public session and voted unanimously that the “charge[sj” of conduct unbecoming a teacher, insubordination and inefficiency had been substantiated. The committee then voted unanimously to dismiss Kurlander. Kurlander did not request the school committee to specify which of the fourteen charges formed the basis of its action.

By agreement of the parties, both cases were tried in the Superior Court upon the transcript of the proceedings before the committee, and certain exhibits and stipulations, including a stipulation which the parties and the judge treated as preserving the issues argued here. With an inconsequential exception,⁴ the evidence in the Superior Court was therefore precisely the same as that presented to the committee. The committee had heard thirty-five witnesses over six days of hearings. There was extensive testimony by school administrative personnel concerning Kur-lander’s repeated failure to produce adequate lesson and curriculum plans. The testimony recounted the administration’s continuing efforts to procure compliance in this area and to have Kurlander keep his classroom neat and clean, another area of continued friction. Other witnesses spoke of Kurlander’s failure to perform certain assigned “bus duty.” There was also testimony, much of it complimentary to Kurlander, concerning his effectiveness as a teacher.

The testimony of gravest import, however, concerned incidents which occurred on March 20 and 21, 1978. These incidents were the basis for the first four charges brought by the committee. Ronald Gagnon, an administrative assistant, testified that on March 20 he entered Kurlander’s classroom to videotape the class in connection with a planned submission to an arts program in Boston. According to Gagnon, Kurlander approached him immediately and, in a “harsh and loud voice,” made comments which could reasonably be interpreted as questioning Gagnon’s competence. When Gagnon attempted to leave, Kurlander insisted he stay and “again started screaming.” Gagnon reported the incident, which took place in front of Kur-lander’s students, to Helen Renzi, the principal. Renzi also had a confrontation with Kurlander on that day. She testified that on a routine walk through the school she stopped at Kurlander’s room. As she entered, he commenced to “yell” at her, saying, “I knew if I yelled loud enough, you would come in.” (Although the timing of the events is unclear, Renzi may have entered the classroom shortly after the Gag-non incident.) Renzi testified that, in front of the class, Kurlander referred to requests he had made which he asserted had not been filled and “berated” her.. Renzi called Kurlander to her office later that day and, after some discussion with him and Gagnon, suspended Kurlander for three days. Kurlander left, “shouting and arguing” about who would arrange for a good substitute teacher in his absence.

On the following day, Kurlander was called to a meeting with Renzi and John Madden, the superintendent of schools. Kurlander was handed a letter which confirmed the three-day suspension and reserved Madden’s right to take further disciplinary action. Kurlander read the letter and in turn handed it to his wife, sitting in an outer office, telling her to “check it for grammar.” The meeting was stormy and peppered with more loud outbursts by Kur-lander. At one point, he referred to Renzi’s early departure from the meeting as creating the opportunity to engage in a fistfight if Madden removed his glasses. Kurlander testified that he did not recall having made some of the remarks testified to by Renzi and Madden and characterized his loudness as “theatrics,” which were not intended to be unpleasant.

The judge made findings of fact which alluded to the continuing conflicts over neatness and lesson plans. He also found that, while Kurlander had a good grasp of his subject, he received “lesser marks on his ability to transmit education to the public school students.” The judge further found that the incidents in March were the immediate cause of Kurlander’s suspension and the reservation by the superintendent of the right to take further disciplinary action. He found Kurlander’s actions to have involved “totally inappropriate language spoken to Gagnon in the presence of pupils . . . and thereafter . . . totally inappropriate language to both Mrs. Renzi and Mr. Madden at subsequent discussions. All of this took place in the presence of pupils and other supervisory personnel.”

Based on his findings of fact, which accurately synopsized testimony before the committee, the judge concluded that Kurlander had not been denied any statutory right or due process by the committee’s actions and that the committee was justified in dismissing Kurlander. The judge also ruled that no violation of the open meeting law had occurred. Timely appeals were taken from the ensuing judgment which affirmed the committee’s action.

1. Kurlander first contends that the school committee is required under § 43A, or on the ground of procedural due process, to state which charges it has found substantiated because without such a statement (a) the Superior Court has an inadequate basis on which to conduct the de nova hearing required by § 43A; and (b) the teacher cannot adequately prepare and defend the case against him at the Superior Court hearing. Implicit in these arguments is the notion that any charges which the school committee determines to be unproven cannot be passed upon by the Superior Court. Were it not so, the argument suggests, the Superior Court could uphold the discharge on grounds rejected by the school committee, thereby impermissibly intruding upon that body’s executive function.

These arguments may well misconceive the nature of “de nova” review as provided for by § 43A. That statute requires the Superior Court to determine “whether the school committee acted on the evidence rather than out of bias, political pressure, or other improper motive,” Springgate v. School Comm. of Mattapoisett, 11 Mass. App. Ct. 304, 305-306 (1981), by a process of “de nova review, [in which] the findings of fact of the school committee carry no evidentiary weight.” Id. at 306. “The provision in G. L. c. 71, § 43A [inserted by St. 1958, c. 462], to ‘hear the cause “de nova” ’ reads as a mandate to determine anew whether the charge or charges are substantiated.” MacKenzie v. School Comm. of Ipswich, 342 Mass. 612, 614 (1961). Thus we have stated that in reviewing a § 42 teacher dismissal under § 43A, the Superior Court is “not confined to reviewing a record,” Springgate, supra at 306, as it would be in a case considered under G. L. c. 30A, § 14(5). We have also stated that § 43A creates “manifestly . . . broader review than is mandated by G. L. c. 30A, § 14, and like judicial review statutes,” and we have expressly held that “no findings are required” of a school committee for purposes of Superior Court review under § 43A. South Middlesex Regional Vocational Technical Sch. Dist. Comm. v. Superior Court, 9 Mass. App. Ct. 372, 376 (1980). See also Wishart v. McDonald, 500 F.2d 1110, 1115 (1st Cir. 1974) (In a de nova hearing under § 43A, the teacher “would seek not some restrictive ‘review’ in state court, but would receive an entirely new hearing at which the school committee has the burden of supporting the discharge”). These cases indicate that when a tenured teacher who has been dismissed by a school committee pursuant to G. L. c. 71, § 42, elects de nova review in Superior Court pursuant to G. L. c. 71, § 43A, that process (1) supplants any fact-finding function the school committee may have; (2) transfers the function of finding facts to the Superior Court; and (3) requires the Superior Court, solely on its view of the evidence before it, to make a fresh determination “whether the evidence substantiates the charges made by the school committee,” Springgate, supra at 306, and warrants the teacher’s dismissal.⁵ These cases also suggest that the focal point of Superi- or Court review is whether a cause for discharge is substantiated, and that, if one is, the school committee’s decision to dismiss must stand. As stated in MacKenzie v. School Comm. of Ipswich, supra at 614-615, the case “on appeal ... is not what action is appropriate or wise, the offences being established; it is, has the teacher offended in the way charged?” All of this works to the advantage of the teacher in most instances through procedures which have been carefully crafted to balance the ultimate prerogative of the committee — to maintain or terminate the employment relationship — with the special safeguards afforded by plenary judicial review.

There is no need, however, to decide in this case whether the Constitution or G. L. c. 71, §§ 42 and 43A, mandate that a school committee designate which charges have been proven. The record shows that Kurlander was not subjected to any special unfairness by reason of the school committee’s failure to provide such specific findings. It is undisputed that Kurlander received all the procedural safeguards required by G. L. c. 71, § 42, including written notice of the charges, time to prepare his response, and a hearing at which he was represented by counsel, and had the rights to present evidence and call witnesses. As noted earlier, the case before the judge was, by express agreement of Kur-lander and the committee, the same in all respects as the case presented to the committee. No new causes or charges were introduced before the Superior Court. There is no question that the charges related to the incidents of March 20 and 21, 1978, were the most serious before the committee. The testimony of Gagnon, Madden and Renzi as to the incidents of March 20 and 21, was consistent, portraying Kurlander’s behavior on those dates (much of it in front of his students) as insolent, abusive, loud and out of control. No substantial doubt as to the occurrence of these events was raised by Kurlander’s failure to recollect some of the remarks he made, his explanation of his occasional use of “theatrics,” and his characterization of all his actions as well-intended. In light of the evidence, we think Kur-lander could not reasonably have read the committee’s unanimous vote that the cause of unbecoming conduct had been substantiated as anything other than a determination that the charges arising out of the events of March 20 and 21 had been proven. In this particular respect, the vote resembled a general verdict of a jury. The record therefore furnishes no basis for a claim that Kurlander was prejudiced because he was unaware that the committee had found those allegations substantiated.

Similarly, Kurlander cannot claim that the judge based his decision on grounds other than those relied upon by the committee, since the judge, having independently found the same facts, decided that the incidents of March 20, 1978, and the subsequent discussions were sufficient to justify dismissal. This determination was correct; an incident of unbecoming conduct substantively similar was found sufficient to warrant a tenured teacher’s dismissal in the MacKenzie case, 342 Mass. at 616-617. Since Kurlander could not reasonably claim to be unaware that the charges related to the incidents of March 20 and 21 had been found substantiated by the committee and because the judge based his decision on those same incidents, the lack of findings by the committee as to the remaining charges could not (even on Kurlander’s assumptions) rise above the level of harmless error, and certainly not to the level of negating a constitutional right. Having found major charges established, the judge was not obliged to pore over the evidence to make findings concerning the other charges aired before the committee. Notwithstanding the possibility that implications adverse to Kurlander’s reputation might be drawn from the failure to make findings on all charges (see note 3, dissenting opinion, infra), it is not the duty of the school committee or the Superior Court in these cases to operate with an eye to easing the task of resume-writing for a teacher who is properly discharged for cause.

The judge’s rulings of law were also sound. The judge was aware of the court’s function,⁶ and his ultimate ruling that the committee’s action was “justifiable” reflects a conclusion (necessary to affirmance of a dismissal under § 43A) that there was a firm foundation in fact for the dismissal of Kurlander for a cause charged under § 42. The ultimate nondelegable decision of the committee — to terminate the employment relationship by dismissing Kurlander — was also respected by the judge, in conformance with the principle that “[i]t is not a judicial function . . . under . . . § 43A to assess the gravity of a school committee’s charges or the appropriateness or wisdom of its action. The permissible grounds for dismissal under G. L. c. 71, § 42 — inefficiency, incapacity, conduct unbecoming a teacher, insubordination, and other good cause — include any ground which is not arbitrary, irrational, unreasonable, in bad faith, or irrelevant to the committee’s task of running a sound school system.” Springgate, 11 Mass. App. Ct. at 308. We conclude that while a committee might be well-advised to make a simple statement of the charges found proven (and a teacher not receiving such a statement may wish to immediately request one before the committee adjourns and, failing that, make such a request before, or simultaneously with, filing an action under § 43A), there was no impairment of any constitutional or other right due Kurlander in the committee’s failure to do so here since it must have been clear to Kurlander that the charges to which we have referred were found substantiated by the committee’s vote sustaining the cause of unbecoming conduct,⁷ and those same charges formed the basis for the judge’s decision.

2. The operative provision of the open meeting law, G. L. c. 39, § 23B, as appearing in St. 1976, c. 397, § 6, provides that, with certain exceptions, “[a]ll meetings of a governmental body shall be open to the public.” This general rule is subject, however, to the express qualification of G. L. c. 39, § 24, that it “shall be in force only so far as [it is] not inconsistent with the express provision of any general or special law.” The hearing on the present case was conducted pursuant to G. L. c. 71, § 42, which provides that the dismissal hearing of a tenured teacher “may be either public or private at the discretion of the school committee.” At issue is whether the “hearing” which the committee is privileged to hold in private includes the committee’s deliberations, the only portion of these proceedings which were closed to the public. On that issue, the plaintiffs in the open meeting law case appear to acknowledge ■ that the quoted provision of c. 71, § 42, is, on its face, inconsistent with the open meeting law. They urge, however, that the inconsistency does not extend to the facts of this case because the term “hearing” should be interpreted to exclude the deliberative phase of proceedings before a school committee.

We reject the plaintiffs’ approach. Although the term “hearing” is not expressly defined in either c. 71 or c. 39, it appears to constitute a category of “meeting,” which is defined in G. L. c. 39, § 23A, inserted by St. 1975, c. 303, § 3, as “any corporal convening and deliberation of a governmental body” (emphasis supplied). We think this definition encompasses “hearings” under § 42, including the committee’s deliberations. We disagree with the suggestion that this interpretation amounts to judicial legislation. Our interpretation derives from, and comports with, the Legislature’s unambiguous and broadly descriptive definition of a clearly analogous term. We also deem significant the legislative intent expressed in the plain language in which § 42 is framed: to grant school committees the option to keep private the sensitive matters which may surface in the course of proceedings relating to dismissals of tenured teachers. A court must see that this purpose is enforced, see Commonwealth v. Gove, 366 Mass. 351, 354 (1974); Moynihan v. Arlington, 6 Mass. App. Ct. 960, 961 (1978), and not frustrated by approval of an anomaly, see Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 355 (1973), such as might result from an interpretation which would permit a committee to hold a closed hearing for the taking of evidence, but would require it under G. L. c. 39, § 23B, to open its deliberative discussions of that same evidence to the public.⁸ We conclude that an inconsistency rising to the level of “positive repugnancy,” see Yaro v. Board of Appeals of Newburyport, 10 Mass. App. Ct. 587, 589 (1980), exists between the open meeting law, which declares in G. L. c. 39, § 23B, that “[a]ll meetings . . . shall be open,” and G. L. c. 71, § 42, which confers on school committees the right, in the exercise of discretion, to conduct dismissal hearings in public or private.⁹ The specific terms of the latter override the former, general provision. G. L. c. 39, § 24.

Finally, there is no reason to overturn the judgment on the basis of the plaintiffs’ two remaining arguments: (1) that a school committee, having once voted, as here, to hold an open meeting, may not subsequently choose to close a discrete part of it, and (2) that the lack of a formal vote to close deliberations to the public is fatal to the validity of the proceedings. As to the first contention, a committee could reasonably conclude that the deliberative portion of a hearing like this might necessitate frank discussion of sensitive material. Having unfettered discretion by statute to close all of the hearing or none of it, the committee offends no rule or policy by exercising less than its whole right. As to the second contention, no objection was made by Kur-lander, any committee member or anyone else to the committee’s failure to vote formally to close deliberations to the public. Moreover, that failure appears not to have been made an issue before the Superior Court. (We have no transcript of the Superior Court proceedings, but the judge’s detailed findings and rulings contain no reference to any such argument.) The issue involves a question of formal protocol which could easily have been resolved by the committee (perhaps to the satisfaction of everyone) had a timely objection been made. In the absence of a ground level objection or the matter being raised below, we decline to pass on the question.

Judgments affirmed.

2 General Laws c. 71, § 43A, as amended by St. 1977, c. 671, reads in part: “The court . . . shall hear the cause de nova, review such action, and determine whether or not upon all the evidence such action was justifiable. If the court finds such action was justifiable, the action of the school committee shall be affirmed . . . .”

3 These generic causes reflect the command of G. L. c. 71, § 42, as appearing in St. 1972, c. 464, § 2, that a tenured teacher “shall not be dismissed, except for inefficiency, incapacity, conduct unbecoming a teacher . . ., insubordination or other good cause.”

4 Limited, and essentially cumulative, testimony before the court by the superintendent of schools.

5 The precedent furnished us by Kurlander is not helpful. Graves v. School Comm. of Wellesley, 299 Mass. 80 (1937), and Moran v. School Comm. of Littleton, 317 Mass. 591 (1945), discuss the inadequacy of committee hearings where no evidence at all is presented (Graves) or where evidence is considered which has been withheld from the teacher (Moran). Neither infirmity was present here. To the extent that these cases relate to the standard of review, we note that both predate the de nova review procedure of G. L. c. 71, § 43A, which was added by St. 1958, c. 462.

The cases which Kurlander cites from other jurisdictions for the proposition that due process requires specific findings are equally unhelpful since they do not involve de nova review procedures like ours. See, e.g., Kinsella v. Board of Educ. of Cent. Sch. Dist. No. 7, 378 F. Supp. 54, 60 (W.D.N.Y. 1974), aff’d, 542 F.2d 1165 (2d Cir. 1976); Staton v. Mayes, 552 F.2d 908 (10th Cir.), cert. denied, 434 U.S. 907 (1977). Moore v. Ross, 687 F.2d 604 (2d Cir. 1982), cert. denied, 459 U.S. 1115 (1983), involved an arguably distinguishable form of “de nova” review wherein determinations of eligibility for unemployment benefits were appealable first to an administrative law judge, who was required to render a written decision, then to an Unemployment Insurance Appeal Board, which as a matter of “policy and practice” reviewed the decision “de nova” without necessarily conducting a hearing, and thence to the courts. The court held that a “cursory” opinion of the Appeal Board, “alerting both the parties and any reviewing court to the decision’s broad basis” would satisfy due process. Id. at 610. If this standard were applied here, the committee’s public vote on the substantiation of the causes of unbecoming conduct, insubordination and inefficiency would appear to satisfy the requirement.

6 The judge made liberal reference to the standards discussed in Spring-gate, specifically ruling that “[ujnder G. L. c. 71, § 43A, the Superior Court hears the cause de nova, reviews the action of the School Committee, and determines ‘whether the evidence substantiates the charges made by the School Committee.’ Springgate v. School Committee of Mattapoisett, 11 Mass. App. Ct. 304, 306 (1981).” His detailed memorandum leaves little doubt that he appreciated the axiom underlying §§42 and 43A, stated in Springgate (at 305), that “[rjeview is not managerial in nature . . .; review is quintessential^ judicial.”

7 For these reasons, we see no merit to Kurlander’s other arguments to the effect that there was insufficient evidence to warrant the judge’s conclusion that the school committee’s action was justified. The arguments are premised on the restrictive notion of review with which we have already dealt.

8 Compare the different circumstances so far as confidentiality is concerned which pertained in Milton Commons Associates v. Board of Appeals of Milton, 14 Mass. App. Ct. Ill, 112-115 (1982), a case not involved with the open meeting law.

9 We note the judge’s observations that, unlike the provision of G. L. c. 71, § 42, which controls this case, “the provision governing dismissal of a non-tenured teacher, who has served for more than ninety days, does not specify that the hearing before the school committee, which is provided therein, may be public or private, at the school committee’s option. Although this court is unable to discern the Legislature’s rationale, it appears to have specified different hearing requirements for tenured and non-tenured teachers. Only the latter would be subject to the Open Meeting Law.” See Puglisi v. School Comm. of Whitman, 11 Mass. App. Ct. 142 (1981). We do not speculate on whether the Legislature intended different standards or whether the discrepancy is the result of oversight. Any patching of the statutes is the Legislature’s prerogative, not ours. See Ocean Spray Cranberries, Inc. v. State Tax Commn., 355 Mass. 592, 597 (1969).