GEORGE E. BRODIE, JR. vs. SCHOOL COMMITTEE OF EASTON.

ARMSTRONG, J. This is a petition for a writ of mandamus to compel the School Committee of Easton (committee) to reinstate the petitioner to the position of teacher in the Easton public schools and to compensate him for all wages and fringe benefits lost on account of the termination of his employment. The case is before us on the committee's

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appeal under G. L. c. 213, Section 1D (as in effect prior to St. 1973, c. 1114, Section 60), from an order for judgment in favor of the petitioner, and on the committee's exceptions to the denial of certain of its requests for rulings.

The principal issue presented by the appeal is whether the petitioner, at the time the committee refused to renew his employment for the 1973-1974 school year, had acquired tenure at discretion under G. L. c. 71, Section 41 (as amended through St. 1956, c. 132, Section 1) [Note 1] and Section 42 (as amended through St. 1970, c. 388, Section 1). [Note 2] If he had acquired such tenure, the committee could dismiss him only by complying with the procedural requirements of Section 42, which were not observed.

The parties stipulated facts which are dispositive of the appeal. The petitioner was first employed by the Easton schools between September 1, 1969, and November 10, 1969, as a substitute teacher. During that time he taught for eleven days, filling in for absent teachers. On November 10, 1969, the petitioner was appointed a full time teacher and served as such for the remainder of the 1969-1970 school year. During that year, the petitioner was employed for a total of 147 days, eleven days as a substitute teacher and 136 days as a regular teacher. The full 1969-1970 year was 182 days. The petitioner was thereafter employed by the committee as a regular teacher during the 1970-1971, 1971-1972, and 1972-1973 school years. On April 10, 1973, the petitioner was notified that the committee would not renew his teacher's contract for the 1973-1974 school year.

On these facts it cannot be concluded that the petitioner, when hired for the 1972-1973 school year, had served "for the three previous consecutive school years" so as to acquire tenure under Section 41.

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It has never been decided whether tenure under Section 41 can be attained through substantially full time employment as a substitute teacher. See Nester v. School Comm. of Fall River, 318 Mass. 538, 541-542 (1945). In that case the court did hold, however, that "the phrase `served . . . for the three previous consecutive school years' in Section 41 signifies a continuity of service for that period and is not satisfied by intermittent and irregular service as a substitute." 318 Mass. at 542. The petitioner's eleven days of substitute teaching during the period September 1, 1969, to November 10, 1969, cannot be characterized as more than "intermittent and irregular service." The petitioner's 136 days of full time service for the remainder of the 1969-1970 school year occupied "a substantial period of time in . . . [that year], but it was considerably less than the period comprising a normal school year and does not in our opinion constitute the regular and continuous employment that the statute contemplates." Nester v. School Comm. of Fall River, id. at 542.

We do not agree with the petitioner's contention that this case is governed by Ryan v. Superintendent of Schools of Quincy, 363 Mass. 731 (1973), and Frye v. School Comm. of Leicester, 300 Mass. 537 (1938), both of which held that tenure under Section 41 can be attained through parttime employment of a regular and continuous nature for the requisite period. In the Frye case, the teacher who was held to have attained tenure had been hired, during the first of the three probationary years, to teach three periods out of seven each day. The court stated that "the statute recognizes no separate classification of `part time' teachers. . . . [T]he findings show continuous employment of a substantial character . . . for the entire period." 300 Mass. at 540 (emphasis supplied). The plaintiff in the Ryan case, although called a "permanent substitute teacher," was in fact a permanent part-time teacher hired to teach a specified number of days each week for eleven entire school years. The Ryan case (at 738-739) delineates and reaffirms the distinction between regular part-time service, such as that in the Frye case, and irregular intermittent service,

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such as that in the Nester case. The latter governs the facts in the case before us.

In view of the outcome of the appeal, the committee's bill of exceptions is deemed waived. The order for judgment is reversed, and the petition is to be dismissed.

So ordered.