FLORENCE MULDOON vs. WHITTIER REGIONAL SCHOOL COMMITTEE & another. [Note 1]

GREANEY, J. The plaintiff challenges her dismissal from the position of tenured assistant to the "superintendent director" (superintendent) of Whittier Regional Vocational Technical High School (Whittier) which occurred as the result of the Whittier Regional School Committee's (committee) vote reorganizing Whittier's administrative structure by abolishing five positions and creating three new positions. [Note 2] After the plaintiff had unsuccessfully

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applied for appointment to one of the new positions, she commenced an action in the Superior Court pursuant to the provisions of G. L. c. 71, Section 43A, in which she asserted that the reorganization was undertaken in bad faith, and that her purported dismissal was invalid because of the committee's failure to comply with the procedural requirements of G. L. c. 71, Section 42. [Note 3] After the conclusion of an evidentiary hearing, the judge found as a fact that the committee had acted in good faith in its administrative reorganization, ruled that the plaintiff had failed to file her appeal from the vote dismissing her within the thirty-day period required by G. L. c. 71, Section 43A (see note 8 infra), and directed the entry of a judgment dismissing the action.

We take our facts relevant to a discussion of the issues before us from the findings made by the judge, and from the exhibits and transcript of the proceedings reproduced in the appendix on appeal.

Whittier is a regional vocational high school established under the provisions of G. L. c. 71, Sections 14B and 15, serving eleven cities and towns in northeastern Massachusetts; these communities together have thirteen representatives on the regional school committee. The plaintiff had been employed by the committee since April 1, 1971, in the position of the assistant to the superintendent of Whittier. By vote of the committee on December 12, 1973, she was granted tenure in that position. [Note 4] The judge

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found (and the evidence supported his conclusion) that the member communities of the district had become increasingly concerned about the cost to them of Whittier's programs. The evidence indicated the feeling of discontent was aggravated in part by a decrease in the availability of outside funding for Whittier's vocational programs. Certain member communities were considering withdrawing from the district as a result of the "fiscal conditions of the school." There was also evidence that some committee members were particularly disturbed by what they viewed as a "top heavy" administration at Whittier, and that there had been various other attempts to reorganize its administration in the past.

Against this background, on April 13, 1977, at a regularly scheduled committee meeting, the superintendent presented the committee with a proposal for the reorganization of Whittier's administration. He had not previously presented this proposal to the administrative subcommittee concerned with the subject. The proposal recommended the abolition of five positions (including the plaintiff's position as assistant to the superintendent) and the creation of three new positions all of which would result in an estimated saving to the communities of $40,000 to $67,000 for the first year of the reorganization. [Note 5] After discussion the committee on the same evening approved the proposed reorganization by a vote of eight to two. [Note 6] The plaintiff, who had been informed about

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the proposal by the superintendent a few hours before its presentation to the committee, did not attend the meeting at his suggestion. On April 15, 1977, the plaintiff received formal notification by letter from the superintendent of the committee's actions on April 13, 1977, abolishing certain positions and creating others. [Note 7] She applied

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and was interviewed for the newly created position of director. At a June 22, 1977, committee meeting, the plaintiff was nominated for election to the position of director; the nomination was defeated by a vote of seven to four, and three other persons were selected to fill the newly created administrative positions. The plaintiff's employment at Whittier terminated on June 30, 1977. On July 20, 1977, she filed her appeal under G. L. c. 71, Section 43A, in the Superior Court seeking injunctive relief, reinstatement, and damages. [Note 8] She appeals from the judgment dismissing her complaint as well as from orders denying posttrial motions which sought a new trial (Mass.R.Civ.P. 59[a], 365 Mass. 827 [1974]), and amendments of the findings (Mass.R.Civ.P. 52[b], 365 Mass. 817 [1974]) and the judgment (Mass.R.Civ.P. 59[e], 365 Mass. 828 [1974]). We conclude that the plaintiff did not seasonably challenge the committee's action, which in effect dismissed her, within the thirty-day period specified by G. L. c. 71, Section 43A; and, as a result, we affirm the judgment and the orders denying posttrial relief.

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The central issue before us is whether the plaintiff took an appeal within thirty days, as required by G. L. c. 71, Section 43A, from the date of the school committee's vote which severed her from the system. The plaintiff asserts that the effective vote for determining when the thirty-day period began to run was the vote taken on June 22, 1977, at which her nomination for employment in a new position was defeated, rather than the vote on April 13, 1977, which abolished her position and reorganized the administrative staff. She contends that the June 22 vote is the critical one rather than the earlier vote because she otherwise would have been put in the difficult position of being compelled to bring suit against her former employer at the very time when she had made application for a new position within the system.

Two decisions of this court bear directly on the problem, Nutter v. School Comm. of Lowell, 5 Mass. App. Ct. 77 (1977), and Clark v. Mt. Greylock Regional Sch. Dist., 3 Mass. App. Ct. 549 (1975). In Nutter we considered the effect of a school committee vote taken as part of a plan of reorganization which abolished the positions held by tenured guidance counselors in relation to the rights accorded by G. L. c. 71, Section 42, to tenured personnel. We held that the actual effect of the vote determines whether someone had been dismissed, and that a vote which abolished a counselor's position and "did not assign or contain any offer to assign [the counselor] to any other position in the school system" constituted a "dismissal" from the system within the meaning of Section 42. Nutter v. School Comm. of Lowell, supra at 81-82, and cases cited. Accord, Woodward v. School Comm. of Sharon, 5 Mass. App. Ct. 84 , 88 (1977). In Clark we considered the question of which vote by a school committee, if there was more than one vote, would be the definitive vote of dismissal of a tenured school employee for purposes of starting the clock running on the thirty-day appeal period established by c. 71, Section 43A. We held that when there has been a series of votes. "[t]he vote of the school committee which starts

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the running of the thirty-day limitation period must be the one that demonstrates unambiguously the school committee's intention" to dismiss. Clark v. Mt. Greylock Regional Sch. Dist., supra at 552.

Within the standards of these cases, we are satisfied that the vote taken by the committee on April 13, 1977, clearly and unequivocally abolished the plaintiff's position at Whittier, adequately demonstrated the school committee's intention to sever her from the system, and constituted her dismissal so as to implicate the rights accorded under Section 42 of c. 71. The vote itself accepted the recommendation that the position of assistant to the superintendent be "abolished effective June 30, 1977," and that three "new positions be posted as described in the new job descriptions." No offer of a new position to the plaintiff, or to any of the others whose positions were eliminated, was contained in the recommendations or the vote which adopted it. The letter dated April 15, 1977, informed the plaintiff of the exact content of the vote abolishing her position. It indicated to her that three new positions had been created and would be posted, but it did not expressly or by reasonable implication offer any of the new positions to her. Indeed, she apparently considered the April 13 vote as unambiguously settling her status by thereafter requesting a letter of recommendation from the superintendent director for use in applying for other jobs both within and outside of the school system. We are satisfied that a reasonable person studying the April 13, 1977, vote would have concluded that it caused "`a complete separation from the schools, and not a mere change in rank or duty'" and constituted a dismissal. Nutter v. School Comm. of Lowell, supra at 81, and cases cited. As of that date the burden of challenging the dismissal within thirty days as required by G. L. c. 71, Section 43A, was placed on the plaintiff and an appeal filed on July 20, 1977, was not seasonably brought.

Our conclusion is also supported by a measure of illogic more substantive than Jesuitical in the plaintiff's position

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with regard to the April 13 vote. All of her objections are squarely aimed at that vote as constituting an improper dismissal because the committee had not complied with the requirements of G. L. c. 71, Section 42. She asserts that the reorganization was carried out in bad faith, that she was discouraged from attending the meeting, that she was not given adequate notice that her position was to be abolished, and that the proposal lacked a two-thirds vote of the whole committee. She thus clearly focuses on the April 13, 1977, vote as the crucial vote of dismissal, and asks us to find it wanting under the rigorous standards of c. 71, Section 42. But she strenuously claims at the same time that she was not finally and unequivocally dismissed until she was denied the new position on June 22, 1977. Yet G. L. c. 71, Section 43A, contemplates only a single vote as the critical one for its purposes when it expressly provides that a tenured employee who has been dismissed or removed from her position by a vote of a school committee and who wishes to challenge the dismissal or removal must "within thirty days after such vote appeal therefrom to the superior court" (emphasis supplied). Section 43A thus directs itself to an appeal from a particular vote, the same vote which will be scrutinized under the standards set forth in Section 42. It does not contemplate the use of one vote for measuring the appeal period, and the use of a second vote for testing the adequacy of the dismissal. Since the plaintiff attacks the April 13, 1977, vote as the vote violating her Section 42 rights, that is the vote for purposes of applying the time limitations in Section 43A.

Finally, we decline to accept the plaintiff's invitation to create a new standard for measuring the thirty-day period contained in G. L. c. 71, Section 43A, commencing at the point when she first subjectively believed that her employment had been terminated. We are of the opinion that the statute, and the views expressed herein and in other cases dealing with the subject, chiefly the Nutter and Clark decisions, represent an accurate view of the law which should not be reformulated.

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All of the other contentions raised by the plaintiff in her posttrial motions and argued on appeal have either already been discussed or are unnecessary to the disposition of the appeal. The orders denying the motion for new trial and denying the motions for amendment of the findings, and to alter or amend the judgment are affirmed. The judgment dismissing the action is affirmed.

So ordered.