PHYLLIS RANTZ vs. SCHOOL COMMITTEE OF PEABODY & another. [Note 1]

NOLAN, J. We are asked to rule that a tenured principal is entitled to the same protection against dismissal as is afforded

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to a tenured teacher, under G. L. c. 71, Section 42 (1984 ed.). [Note 2] We so hold and accordingly affirm the judgment. The relevant facts are summarized as follows.

The plaintiff, Phyllis Rantz, held a regular teaching position in the Peabody school system from 1961 through 1968. [Note 3] In May of 1968, the plaintiff was elected to the position of assistant principal for the 1968-1969 school year. She served in that capacity until August of 1977, at which time she was elected principal of the Farnsworth elementary school. The plaintiff served as principal of the Farnsworth school continuously from the 1977-1978 school year through the 1981-1982 school year.

The school committee of Peabody (committee) maintained ten elementary schools during the 1981-1982 school year.

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Citing declining enrollment and budgetary considerations, the committee decided to reduce the number of operating elementary schools from ten to eight for the 1982-1983 school year. Farnsworth was one of the two elementary schools eliminated.

On August 10, 1982, the committee voted five to one to dismiss the plaintiff from her position as principal of the Farnsworth school. [Note 4] The dismissal was effective at the conclusion of the 1981-1982 school year. The plaintiff filed this action in the Superior Court seeking review of the committee's decision (G. L. c. 71, Section 43A), damages (G. L. c. 149, Section 105A), and declaratory relief (G. L. c. 231A, Sections 1, 2). The committee and the city of Peabody were named as defendants. The case was referred to a master, who issued a report. The trial judge adopted the report subject to certain modifications and issued a memorandum of decision on June 20, 1984. The judge ruled that, as a tenured principal, the plaintiff was entitled to the same protection as a tenured teacher under G. L. c. 71, Section 42. See supra n.2. The judge ordered the defendants to "restore the plaintiff to her position as elementary school principal with full back pay ... [and] no loss of such rights [as] seniority, tenure or retirement." [Note 5] Judgment entered in accordance with the judge's order on July 5, 1984. The defendants seasonably appealed to the Appeals Court. We transferred the case to this court on our own motion.

1. Serving at discretion. General Laws c. 71, Section 41 (1984 ed.), provides that the school committee "in electing a teacher who has served ... for the three previous school years shall employ him to serve at its discretion ...." Serving at discretion is serving under tenure. The purpose of this statute "is to provide some degree of protection for the tenure of teachers who have served a probationary term of three consecutive school years and who are continued in employment thereafter." Frye v. School Comm. of Leicester, 300 Mass. 537, 538-539

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(1938). We have traditionally recognized that "a principal is merely a teacher who is entrusted with special duties of direction or management." McDevitt v. School Comm. of Malden, 298 Mass. 213, 214 (1937). Thus, although G. L. c. 71, Section 41, employs the term "teacher," the tenure statute has been applied to school principals. See, e.g., McCartin v. School Comm. of Lowell, 322 Mass. 624, 628 (1948) (high school principal serving at discretion under G. L. c. 71, Section 41). See also Doherty v. School Comm. of Boston, 6 Mass. App. Ct. 805, 808 n.5 (1979).

In most instances, a teacher with tenure cannot be dismissed unless the procedural safeguards specified in G. L. c. 71, Section 42, are followed. See McDevitt, supra at 214. Moreover, G. L. c. 71, Section 42, provides that when "a decrease in the number of pupils in the schools ... 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 [tenured] teacher ... is qualified to fill." The plaintiff was serving at discretion when she was dismissed. She held the position of principal for more than three consecutive years and was exempt from the certification requirement of G. L. c. 71, Section 38G, because of her teaching experience prior to 1951. See St. 1951, c. 278, Section 2. At the time she was dismissed, there were at least four elementary school principals in the Peabody system who had been employed as principals for more than three years, but who, as we shall indicate, were not tenured principals because they had been certified as principals under G. L. c. 71, Section 38G, for less than three years. Three of these four principals were reelected for the 1982-1983 school year. Relying on our decision in Luz v. School Comm. of Lowell, 366 Mass. 845 (1974), the trial judge reasoned that, despite their years of service, these retained principals were not tenured since they had not served as principals for three consecutive years while certified. Applying G. L. c. 71, Section 42, the trial judge then ruled that it was error to dismiss the plaintiff, a tenured principal, while retaining nontenured principals. We agree with the trial judge's ruling.

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2. G. L. c. 71, Section 38G. As we noted earlier, at least four elementary school principals who had served for more than three years as principals had been certified as principals for less than three years. General Laws c. 71, Section 38G (1984 ed.), provides that "[n]o person shall be eligible for employment by a school committee as a teacher [or] principal ... unless he has been granted by the board [of education] a certificate with respect to the type of position for which he seeks employment." Id., twelfth par. The statute, under certain circumstances, permits a school committee to seek an exemption from the requirement that it employ certified personnel. [Note 6] However, the statute specifically provides that, while this "waiver" is in effect, "service of an employee ... shall not be counted as service in acquiring the status of serving at the discretion of a school committee under section forty-one." We confronted this portion of G. L. c. 71, Section 38G, in Luz, supra at 845, where we held that the plaintiff, notwithstanding his years of service, was not on tenure since he was never certified and thus never legally employed as a teacher.

The trial judge was correct in relying on Luz. The principals who were retained were not legally eligible for employment as principals until they were granted a certificate for that position by the State board of education. See G. L. c. 71, Section 38G. The time they served without certification cannot be credited as service in acquiring tenure. Since the plaintiff was exempt from the certification requirement, she was eligible for tenure

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as a principal after completing three consecutive years of service. See Dimlich v. School Comm. of Andover, 344 Mass. 643, 647 (1962) (tenure as principal achieved by consecutive service for over three years). Accordingly, we must determine what rights the plaintiff had as a tenured principal.

3. Rights of tenured principal. The defendants acknowledge that the plaintiff could not be demoted in violation of G. L. c. 71, Section 42A (1984 ed.). [Note 7] They argue, however, that under G. L. c. 71, Section 42, the plaintiff was not protected from dismissal. This argument is based on the defendants' contention that there is no distinction between the position of principal and that of teacher for purposes of tenure under c. 71, Section 42. The defendants' argument is without merit.

As we indicated earlier, a principal has traditionally been treated as a superior species of teacher. See McCartin v. School Comm. of Lowell, 322 Mass. 624, 628 (1948). Prior to the enactment of G. L. c. 71, Section 42A (St. 1945, c. 330), the only significant right of a tenured principal that was protected by statute (and different from a teacher) was salary. See McCartin, supra at 628 (salary of principal serving at discretion could not be reduced to that of teacher in violation of G. L. c. 71,

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Section 43). Thus there were few instances where we were required to distinguish between principals and teachers for purposes of tenure. After the enactment of G. L. c. 71, Section 42A, which granted additional rights to principals, we began to recognize this distinction more frequently in our opinions. See Dimlich, supra at 647; Murphy v. Cambridge, 342 Mass. 339, 341 (1961); Kelley v. School Comm. of Watertown, 330 Mass. 150, 152 (1953).

Nevertheless, we have consistently recognized that a tenured principal is protected from dismissal under G. L. c. 71, Section 42. See Downey v. School Comm. of Lowell, 305 Mass. 329 (1940); Sweeney v. School Comm. of Revere, 249 Mass. 525 (1924). Accordingly, we reject the defendants' argument that a principal is protected against demotion but not dismissal. "[T]he whole scheme of legislation in recent years concerning the job security of professional employees in the public education area has been geared toward the expansion of procedural protections rather than to their limitation." Glennon v. School Comm. of Boston, 375 Mass. 757, 765 (1978).

Judgment affirmed.