MARIA SERRAZINA vs. SPRINGFIELD PUBLIC SCHOOLS.

WOLOHOJIAN, J. The plaintiff, a teacher in the Springfield public school system (school), [Note 1] was suspended without pay and

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subsequently terminated because she was the subject (together with her parents and siblings) of Federal indictments charging corruption at the Springfield Housing Authority (SHA). [Note 2] After the charges against the plaintiff were dismissed pursuant to an agreement with the Federal government, the plaintiff sought reinstatement and back pay. The defendant denied those requests and terminated the plaintiff's employment. The plaintiff filed a grievance challenging her termination, and an arbitrator subsequently issued an award ordering the plaintiff's reinstatement.

The plaintiff then filed a complaint in the Superior Court, seeking confirmation of the award and back pay for the period from her suspension to her reinstatement. On cross motions for summary judgment, a Superior Court judge affirmed the award, [Note 3] but ruled that the plaintiff was not entitled to back pay. The plaintiff appeals from that judgment, challenging the denial of her request for back pay. We affirm with respect to the period between the plaintiff's termination and her reinstatement, but reverse with respect to the period of her suspension.

Background. Broadly summarized, Federal indictments accused members of the plaintiff's family with exploiting the SHA for personal gain through a long-running scheme of bribery, embezzlement, and fraud. The plaintiff herself was charged, among other things, with conspiring to receive gratuities and receipt of gratuities, 18 U.S.C. §§ 201, 371 (2006), and conspiracy to commit theft against the United States, 18 U.S.C. §§ 371, 641 (2006). The plaintiff does not dispute that she received a number of items for which she did not pay, including paint, wallpaper, an alarm system, a refrigerator, and the construction services of SHA employees who performed repairs on her home. She also does not dispute that Federal agents found a suitcase containing $237,000 in cash in the attic of her home.

Citing the indictment, and acting pursuant to G. L. c. 268A, § 25 (suspension statute), the school's superintendent suspended the plaintiff from her job as a school adjustment counselor. [Note 4] The

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suspension statute, G. L. c. 268A, § 25, inserted by St. 1972, c. 257, provides, in pertinent part:

"An . . . employee of a . . . regional school district[] . . . may, during any period such . . . employee is under indictment for misconduct in such office or employment or for misconduct in any elective or appointive public office, trust or employment at any time held by him, be suspended by the appointing authority . . . .

"Any person so suspended shall not receive any compensation or salary during the period of suspension, nor shall the period of his suspension be counted in computing his sick leave or vacation benefits or seniority rights . . . .

"If the criminal proceedings against the person suspended are terminated without a finding or verdict of guilty on any of the charges on which he was indicted, his suspension shall be forthwith removed, and he shall receive all compensation or salary due him for the period of his suspension, and the time of his suspension shall count in determining sick leave, vacation, seniority and other rights, and shall be counted as creditable service for purposes of retirement."

Approximately two years after her suspension, the plaintiff entered into a pretrial diversion agreement with Federal prosecutors. Under the terms of the agreement, the plaintiff "acknowledge[d] responsibility for her conduct" and "accepted and [took] responsibility for accepting" a number of goods and services from her father for which she did not pay. The plaintiff agreed that she "now underst[ood]" that those goods and services were improperly provided by and through the SHA. The plaintiff further agreed to pay $20,000 in restitution to resolve "any potential claims" involving SHA resources, and to "waive any claim she might have" to the cash seized from her home and certain real property on Cape Cod. For their part, the Federal prosecutors agreed to seek a dismissal of the plaintiff's indictment at the end of an eighteen-month diversion period.

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As the end of the diversion period approached, the plaintiff informed the defendant that her indictment would soon be dismissed and that she wished to return to work. In response, the defendant terminated her employment effective October 22, 2007, pursuant to G. L. c. 71, § 42 (termination statute), citing "conduct unbecoming a teacher." [Note 5] Approximately six months later, the Federal charges against the plaintiff were dismissed with prejudice in accordance with the terms of the diversion agreement.

The plaintiff, pursuant to the termination statute, challenged her termination through arbitration. Although that statute permits an arbitrator to award back pay, the plaintiff did not request it, stating that she would seek that particular remedy "elsewhere." Accordingly, although the arbitrator ordered the plaintiff's reinstatement, [Note 6] he ruled:

"Ms. Serrazina in this arbitration makes no claim for back

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pay, having indicated that she will pursue that remedy elsewhere. Therefore none is ordered, so long as reinstatement in accordance with this award occurs prior to the 2008-09 school year."

After the arbitrator issued his decision, the plaintiff filed the underlying action seeking confirmation of the arbitration award, and back pay [Note 7] pursuant to the suspension statute. A Superior Court judge allowed the school's motion for summary judgment, reasoning that the plaintiff waived her claim for compensation before the arbitrator and could not now seek "duplicate" remedies under the suspension statute. As an alternate ground for his decision, the judge reasoned that the plaintiff was barred from collecting under the suspension statute because her pretrial diversion agreement amounted to a "finding or verdict of guilt[]" within the meaning of that statute.

Discussion. We deal here with the operation of two distinct statutes: the suspension statute, G. L. c. 268A, § 25, and the termination statute, G. L. c. 71, § 42.

The suspension statute permits the suspension of county and municipal employees while they are under indictment for misconduct in office. [Note 8] However, in the event that "the criminal proceedings against the person suspended are terminated without a finding or verdict of guilty on any of the charges on which he was indicted, his suspension shall be forthwith removed, and he shall receive all compensation or salary due him for the period of his suspension . . . ." G. L. c. 268A, § 25, fifth par.

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(emphasis supplied). The "period of suspension" may be longer than the period the employee is under indictment. See Brittle v. Boston, 439 Mass. 580 , 584 & n.10 (2003) (removal of suspension is not automatic upon termination of criminal proceedings; suspension remains in effect until employee is notified that suspension is removed).

The termination statute governs the termination of tenured teachers. The statute "outlines an extensive and exclusive arbitration procedure for . . . performance-based dismissals." School Comm. of Westport v. Coelho, 44 Mass. App. Ct. 614 , 618 (1998). If a tenured teacher is improperly terminated, the statute permits -- but does not require -- the arbitrator to award "back pay, benefits, reinstatement, and any other appropriate non-financial relief or any combination thereof." G. L. c. 71, § 42, sixth par. The arbitrator is not permitted to "award punitive, consequential, or nominal damages, or compensatory damages other than back pay, benefits or reinstatement." Ibid. With the exception of any "other remedies provided by statute," the termination statute's remedies are "the exclusive remedies available to teachers for wrongful termination." Ibid.

In summary, the suspension statute applies to certain public employees who are suspended because they are under indictment. By contrast, the termination statute applies to teachers who are terminated for the performance reasons enumerated in that statute. The two statutory schemes do not overlap. One can be suspended or one can be terminated, but one cannot be understood to be both suspended and terminated at the same time. [Note 9], [Note 10] "[T]he plain language of [the suspension statute] means that a suspension is effective only as long as the person affected holds the office from which he was suspended." Brown v. Taunton,

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16 Mass. App. Ct. 614 , 619 (1983). Cf. Caples v. Secretary of the Commonwealth, 350 Mass. 638 , 640-641 (1966) (resignation terminates suspension); Massachusetts Bay Transp. Authy. v. Massachusetts Bay Transp. Authy. Retirement Bd., 397 Mass. 734 , 738 n.7 (1986) (discharge from employment terminates suspension). We see nothing in either statute that would have required the plaintiff to seek, via arbitration, back pay for the period of her suspension. Arbitration is not required under the suspension statute, and appeals from suspensions made under that statute are ordinarily brought in the Superior Court. See Brittle v. Boston, 439 Mass. 580 , 583 (2003); Brown, supra at 616-617. Although the termination statute requires arbitration, it does so only in cases of wrongful termination. The statute does not once mention the word "suspension" or any variant of it, and we are loath to extend its reach beyond what the Legislature has expressed. See Carmel Credit Union v. Bondeson, 55 Mass. App. Ct. 557 , 560 (2002) (we interpret a statute according to its plain words and will "not add words to a statute that the Legislature did not put there").

Consequently, we conclude that the plaintiff did not waive her claim for back pay during the period of her suspension by choosing not to raise it in the arbitration brought pursuant to the termination statute. We reach a different conclusion, however, with respect to her claim for posttermination back pay. The termination statute contains an express Legislative directive that teachers' claims of wrongful termination be arbitrated and that the remedies for such termination be determined by the arbitrator:

"With the exception of other remedies provided by statute, the remedies provided hereunder shall be the exclusive remedies available to teachers for wrongful termination."

G. L. c. 71, § 42, sixth par. Because the plaintiff declined to ask the arbitrator for posttermination back pay, despite the availability of such relief under the termination statute (under which she invoked arbitration), her claim for posttermination back pay has been waived. The remaining question is whether the plaintiff is substantively entitled to back pay under the suspension statute. The statute provides that a suspended employee "shall receive all compensation

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or salary due him for the period of his suspension," if the criminal proceedings against the employee are "terminated without a finding or verdict of guilty." The defendant argues that the disposition of the plaintiff's criminal case was "in substance a guilty plea" and constituted "a finding or verdict of guilty." We do not agree.

The Federal pretrial diversion agreement was not itself a "finding or verdict of guilty," nor was it equivalent to a "finding or verdict of guilty." [Note 11] The plaintiff did not admit to the facts alleged in the indictment, nor did she admit to knowing at the time she accepted the goods and services that they came from the SHA. The plaintiff admitted only to accepting goods and services from her father, which she later learned came from the SHA. That the plaintiff agreed to pay restitution and waive claims to certain property certainly implies culpability on her part (or, at the very least, unjust enrichment), but the statute requires more: "a finding or verdict of guilty." [Note 12]

The defendant in essence asks us to depart from the plain text of the suspension statute. The statute stresses that its purpose is to compensate the suspended employee when "no misconduct by him is established," Brittle, 439 Mass. at 586, and "upon his vindication," Bessette v. Commissioner of Pub. Works, 348 Mass. 605 , 608 (1965). We are not unsympathetic to the defendant's argument, but we are bound by the plain language of the statute. See Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534 , 539 (1996), quoting from Rosenbloom v. Kokofsky,

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373 Mass. 778 , 781 (1977) ("We cannot interpret a statute so as to avoid injustice or hardship if its language is clear and unambiguous and requires a different construction"). We recognize that the result, here, is that the plaintiff will receive back pay from the public fisc for the period when she was rightfully suspended because she was the subject of Federal indictment. This, though, is the consequence of explicit and plain language used by the Legislature -- from which we cannot deviate, and which we are bound to apply.

Conclusion. The plaintiff is entitled to back pay, under G. L. c. 268A, § 25, for the period of her suspension beginning on August 10, 2004, and ending on October 22, 2007. The plaintiff is not entitled to back pay or lost benefits for any other period. The judgment of the Superior Court is reversed insofar as it denies the plaintiff compensation for the period of her suspension, the judgment is otherwise affirmed. The case is remanded for calculation of back pay.

So ordered.