Home MARTIN M. O'DONNELL vs. TOWN OF NORWOOD.

346 Mass. 394

October 8, 1963 - November 1, 1963

Norfolk County

Present: SPALDING, CUTTER, KIRK, SPIEGEL, & REARDON, JJ.

A public school teacher who was lawfully suspended by the school committee under G. L. c. 71, Section 42, but was not dismissed and resumed his work upon termination of the suspension was not entitled to his salary during the period of suspension.

CONTRACT. Writ in the Superior Court dated May 31, 1960.

The action was reported by Pecce, J.

James P. Lynch, Jr., for the plaintiff.

Walter J. Gotovich, Town Counsel, for the defendant.


SPIEGEL, J. This is an action of contract by which the plaintiff, a teacher and submaster in the public school system of the defendant, seeks to recover salary for the period from September 8, 1958, to December 29, 1958. A judge of the Superior Court reported the case without decision upon the pleadings and a statement of agreed facts.

The plaintiff is a school teacher and submaster in the Norwood public schools, serving at the discretion of the school committee ("on tenure"); he was lawfully suspended from his duties on September 8, 1958, by the committee upon its finding of insubordination. On December 21, 1958, the school committee voted to terminate the suspension and to return him to his duties on December 29, 1958. The plaintiff, during the period of his suspension, was "ready, willing and able" to perform his duties. On December 29, 1958, the defendant resumed his work as teacher and submaster. During the period of the plaintiff's suspension he was not paid any salary by the defendant. If the plaintiff had been paid during the period of his

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suspension he would have received $2,420. The plaintiff was not dismissed from the school system either upon or after the termination of his suspension.

The sole issue before us is whether a school teacher, suspended for cause but not dismissed, is entitled to be paid his salary during the period of his suspension.

The plaintiff bases his right to recovery on the provisions of G. L. c. 71, Section 42, as amended through St. 1956, c. 132, Section 2. [Note 1] He maintains that the pertinent language "determinative of the instant case in his favor" is contained in the last sentence of the section, which reads: "No teacher or superintendent who has been lawfully dismissed shall receive compensation for services rendered thereafter, or for any period of lawful suspension followed by dismissal."

The plaintiff, in his brief, argues at some length that the "statutory history" of the act favors his interpretation. We have examined the legislative history of this statute and are not convinced that the plaintiff's argument is sound.

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The plaintiff theorizes that the form of the predecessor section in St. 1914, c. 714, Section 4, "is clearer than the present wording . . . although the sense is the same: `. . . [I]f the teacher or superintendent so suspended is subsequently dismissed because of such conduct, he shall not receive any salary for the period of his suspension.'" The plaintiff maintains that because the "sense" of the wording is the same in the present statute we must conclude that this was a mandate from the Legislature to the effect that "a teacher who is suspended is entitled to pay unless the suspension is followed by dismissal."

In our view the sole purpose of this language is to prevent the payment of salary to a dismissed teacher. It does not compel the payment of salary during the period a teacher is lawfully suspended for misconduct, where the suspension is not followed by dismissal. We note that, at the same time the language that is now the last sentence of Section 42 was introduced into the statute, [Note 2] the Legislature also inserted the following language, "Neither this nor the preceding section shall affect the right of a committee to suspend a teacher . . . for unbecoming conduct . . .." It seems obvious that the purpose of this language was to preserve rather than limit an existing right. Indeed, the earlier version of this language said: "Nothing herein contained shall be construed as limiting the right of a school committee to suspend a teacher . . ." (St. 1914, c. 714, Section 4).

Prior to this statute, the right of the school committee to dismiss a teacher for any good cause appears to have been absolute. Knowles v. Boston, 12 Gray, 339, 340. We accept the thesis that the power to dismiss includes the power to suspend. See Goldsmith v. Board of Education of Sacramento City High Sch. Dist. 66 Cal. App. 157, 163-164. It follows that at the time the statute was enacted school committees were vested with the power to suspend teachers for cause without salary. We have repeatedly held that the authority of a school committee to manage the

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public schools is to be broadly interpreted. McDevitt v. School Comm. of Malden, 298 Mass. 213 , 214. Davis v. School Comm. of Somerville, 307 Mass. 354 , 362.

The plaintiff also urges us to adopt his view because the practical result is a "salutary safeguard" for the teacher and if we adopt the contrary view the "legislative intent and mandate could be thwarted by an unscrupulous [s]chool [c]ommittee through the use of the suspension device." It may well be a "salutary safeguard" for the teacher but it could hardly be a "salutary safeguard" for the public or for the members of the school committee in conducting the school system effectively. We are asked to hold as a matter of law that suspension not followed by dismissal must, in all conditions and circumstances, be accompanied by compensation during the suspension period. We are of opinion that such a holding would make a suspension almost useless as a disciplinary measure and tantamount to a leave of absence with pay. The practical effect of such an interpretation, it seems to us, would be to force a school committee to impose either the extreme penalty of dismissal in all cases of misconduct or no penalty at all. We do not believe that the Legislature intended to impose such a restriction. If the Legislature had intended that a teacher should be paid his salary during the period of his suspension, not followed by dismissal, it could have said so in clear and unmistakable language. "Where in the past the Legislature has limited the powers of school committees it has done so in express terms (G. L. [Ter. Ed.] c. 71, Sections 38-45), and it is to be expected that a radical departure from such previous policy would be expressed in clear language and not left to doubtful implication." Davis v. School Comm. of Somerville, supra, 363.

Judgment for the defendant.


FOOTNOTES

[Note 1] "The school committee may dismiss any teacher, but no teacher and no superintendent, other than a union superintendent and the superintendent of schools in the city of Boston, shall be dismissed unless by a two thirds vote of the whole committee. In every such town a teacher or superintendent employed at discretion under the preceding section shall not be dismissed, except for inefficiency, incapacity, conduct unbecoming a teacher or superintendent, insubordination or other good cause, nor unless at least thirty days, exclusive of customary vacation periods, prior to the meeting at which the vote is to be taken, he shall have been notified of such intended vote; nor unless, if he so requests, he shall have been furnished by the committee with a written charge or charges of the cause or causes for which his dismissal is proposed; nor unless, if he so requests, he has been given a hearing before the school committee which may be either public or private at the discretion of the school committee and at which he may be represented by counsel, present evidence and call witnesses to testify in his behalf and examine them; nor unless the charge or charges shall have been substantiated; nor unless, in the case of a teacher, the superintendent shall have given the committee his recommendations thereon. The change of marital status of a female teacher or superintendent shall not be considered cause for dismissal under this section. Neither this nor the preceding section shall affect the right of a committee to suspend a teacher or superintendent for unbecoming conduct, or to dismiss a teacher whenever an actual decrease in the number of pupils in the schools of the town renders such action advisable. In case a decrease in the number of pupils in the schools of a town renders advisable the dismissal of one or more teachers, a teacher who is serving at the discretion of a school committee under section forty-one shall not be dismissed if there is a teacher not serving at discretion whose position the teacher serving at discretion is qualified to fill. No teacher or superintendent who has been lawfully dismissed shall receive compensation for services rendered thereafter, or for any period of lawful suspension followed by dismissal."

[Note 2] See G. L. (1921) c. 71, Section 42.