School Committee v. Marshfield Education Ass'n

3 N.E.3d 602, 84 Mass. App. Ct. 743, 2014 WL 278361, 198 L.R.R.M. (BNA) 2282, 2014 Mass. App. LEXIS 7
CourtMassachusetts Appeals Court
DecidedJanuary 28, 2014
DocketNo. 12-P-1737
StatusPublished
Cited by2 cases

This text of 3 N.E.3d 602 (School Committee v. Marshfield Education Ass'n) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
School Committee v. Marshfield Education Ass'n, 3 N.E.3d 602, 84 Mass. App. Ct. 743, 2014 WL 278361, 198 L.R.R.M. (BNA) 2282, 2014 Mass. App. LEXIS 7 (Mass. Ct. App. 2014).

Opinion

Kafker, J.

Review of the arbitration award here requires us to examine the teacher licensing and termination provisions in the Education Reform Act of 1994, St. 1993, c. 71, as well as various provisions in a collective bargaining agreement, and explain their interrelationship. Gerard O’Sullivan was employed as a teacher by the Marshfield public school district (district) for almost eight years. O’Sullivan was terminated in 2008 when the school committee of Marshfield (school committee) took the position that his employment automatically ended by operation of law when his teaching license was not renewed by the Commissioner of Education (commissioner) and the commissioner denied the district superintendent’s request for a waiver of the license requirement. The school committee took no steps to terminate O’Sullivan in accordance with the terms of his teaching contract and the collective bargaining agreement (CBA) between the school committee and the Marshfield Education Association (association), to which O’Sullivan belonged. Nor did the school committee follow the teacher termination process set out in G. L. c. 71, § 42. Rather, the school committee asserted that without a license or waiver, O’Sullivan ceased to be employed as a matter of law and, as a result, was not entitled to any rights afforded a professional teacher under § 42, or under the CBA, including the one-year unpaid leave of absence O’Sullivan had requested so that he could fulfil the requirements necessary for licensure. Thereafter the association, “pursuant to the parties’ collective bargaining agreement,” filed a demand for arbitration.

In this unusual procedural posture, without O’Sullivan proceeding to arbitration pursuant to G. L. c. 71, § 42, and with the school committee relying exclusively on G. L. c. 71, § 38G, the teacher licensing statute, for the elimination of O’Sullivan’s contractual rights, the arbitrator determined that O’Sullivan’s employment did not cease as a matter of law despite the lack of a license or waiver, and that he was still an employee and entitled to the resultant contractual rights, including the one-year unpaid leave of absence he had requested. A judge of the Superior Court confirmed the arbitrator’s award. On appeal, the school committee asks us to vacate the arbitrator’s decision and award. [745]*745We decline and affirm the award, concluding that O’Sullivan’s unlicensed status alone did not automatically eliminate his rights, and that absent termination pursuant to § 42, he retained certain collective bargaining rights, including the right to file a grievance and request an unpaid leave of absence. We also conclude that the arbitrator did not exceed her authority in deciding that O’Sullivan was entitled under the CBA to the one-year unpaid leave of absence to try to fulfil his licensing requirements. Finally, the decision was not contrary to law or in violation of public policy.

Background. 1. Relevant teacher licensing and termination statutes and regulations. The statute governing teacher licensure, G. L. c. 71, § 38G, as amended through St. 1993, c. 495, § 26, states that “[n]o person shall be eligible for employment as a teacher . . . unless he has been granted by the commisa provisional, or standard certificate with respect to the type of position for which he seeks employment.” The statute also provides the following exception: “[A] superintendent may upon request be exempt by the commissioner for any one school year from the requirement in this section to employ certified personnel when compliance therewith would in the opinion of the commissioner constitute a great hardship in securing teachers for that school district.” Id.

Regulations promulgated by the Board of Education, 603 Code Mass. Regs. §§ 7.03 and 7.04 (2005), further clarify the different types of licenses — preliminary, initial, and professional — and the prerequisites for each, with the preliminary being the first license that a prospective teacher can obtain, followed by the initial, and then the professional. Both the preliminary and initial licenses are valid for five years and may be renewed for an additional five years. See 603 Code Mass. Regs. § 7.02 (2005). As explained below, O’Sullivan received a five-year preliminary license, and the superintendent received two waivers allowing O’Sullivan to teach in two subsequent years, with one of those waivers applying retroactively.

General Laws c. 71, § 38G, does not address termination of a teacher. The termination process is set out in G. L. c. 71, § 42, as appearing in St. 1993, c. 71, § 44, which provides in relevant part as follows:

[746]*746“A teacher who has been teaching in a school system for at least ninety calendar days shall not be dismissed unless he has been furnished with written notice of intent to dismiss and with an explanation of the grounds for the dismissal in sufficient detail to permit the teacher to respond and documents relating to the grounds for dismissal, and, if he so requests, has been given a reasonable opportunity within ten school days after receiving such written notice to review the decision with the principal or superintendent, as the case may be, and to present information pertaining to the basis for the decision and to the teacher’s status.
. . . Teachers without professional teacher status shall otherwise be deemed employees at will.
“A teacher with professional teacher status, pursuant to section forty-one, shall not be dismissed except for inefficiency, incompetency, incapacity, conduct unbecoming a teacher, insubordination or failure on the part of the teacher to satisfy teacher performance standards developed pursuant to section thirty-eight of this chapter or other just cause.”

A teacher “who has served in the public schools of a school district for the three previous consecutive school years shall be considered a teacher, and shall be entitled to professional teacher status as provided in [§ 42].” G. L. c. 71, § 41, as amended by St. 1996, c. 99. As explained infra, O’Sullivan had achieved professional teacher status. There was no attempt by the superintendent to terminate him pursuant to § 42.

Section 42 of G. L. c. 71 further provides that a teacher may seek review of a dismissal decision through arbitration. With respect to the arbitrator’s decision, the statute states that “[u]pon a finding that the dismissal was improper under the standards set forth in this section, the arbitrator may award back pay, benefits, reinstatement, and any other appropriate non-financial relief or any combination thereof.” G. L. c. 71, § 42. The arbitration here was not undertaken pursuant to § 42 but, rather, pursuant to the CBA.

2. Relevant CBA provisions. The CBA, in place between 2007 and 2010, also contains a number of relevant provisions. Regarding the contracts between the school district and its [747]*747teachers, the CBA contains both a teacher’s initial contract and a long-term contract.1

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3 N.E.3d 602, 84 Mass. App. Ct. 743, 2014 WL 278361, 198 L.R.R.M. (BNA) 2282, 2014 Mass. App. LEXIS 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/school-committee-v-marshfield-education-assn-massappct-2014.