D'Ambra v. North Providence School Committee

• Decision Date: 10 January 1992
• Docket Number: No. 90-454-M,90-454-M
• Citation: 601 A.2d 1370
• Parties: 72 Ed. Law Rep. 867 Linda D'AMBRA v. NORTH PROVIDENCE SCHOOL COMMITTEE. P.
• Court: Rhode Island Supreme Court

Page 1370

601 A.2d 1370

72 Ed. Law Rep. 867

Linda D'AMBRA v. NORTH PROVIDENCE SCHOOL COMMITTEE.

No. 90-454-M.P.

Supreme Court of Rhode Island.

Jan. 10, 1992.

Robert S. Ciresi, North Providence, for plaintiff.

Richard Skolnik, Lipsey & Skolnik, Providence, for defendant.

OPINION

FAY, Chief Justice.

The petitioner, the North Providence School Committee, seeks review by writ of certiorari of a decision by the commissioner of education (commissioner), as affirmed by the Board of Regents for Elementary and Secondary Education (board), awarding the respondent, Linda D'Ambra, full-time benefits, salary, and a pay-step increase commensurate with her years of service and experience as a part-time teacher. The petitioner claims that the commissioner erred by (1) finding that the respondent was a "regularly employed" teacher during the 1979 through 1983 school years and (2) awarding the respondent credit for the purpose of placement on the salary scale for that period. The respondent asserts that the petitioner's filing of the petition for certiorari was untimely and that the decision of the board therefore became final. The common-law writ of certiorari having already been issued, we deny the petitioner's petition and affirm the decisions of both the commissioner and the board.

After several years of employment as a per diem substitute teacher in the town of North Providence (town) school system, respondent was hired by the town during the 1979-80 school year as a part-time English-as-a-second language (ESL) tutor. During the school years from 1979 to 1983, respondent provided in-school tutoring to students deemed to be in need of ESL tutoring by the special-education department. The total number of hours worked by respondent was determined by the number of students assigned to her for ESL tutoring. The respondent's schedule was structured according to the students' schedules.

Initially the tutoring was provided on a one-to-one basis; however, some grouping occurred as the program progressed and the number of students in need of ESL tutoring increased. Each year respondent developed her own curriculum. The respondent was not paid pursuant to the contract with the teacher's union in effect at the time; rather she was compensated at an hourly rate.

In 1984 respondent obtained appointment as a full-time permanent teacher, at which time she was placed on the second step of the contractual salary scale. The respondent has since retained employment as a full-time teacher with the town and has advanced one step on the salary scale each year.

On May 18, 1989, respondent appealed to the commissioner, claiming that she was not properly compensated by petitioner during the school years from 1979 to 1983. In a decision filed on January 3, 1990, the commissioner found that respondent was a regularly employed teacher during the 1979 to 1983 school years and therefore was entitled to be placed on the fourth salary step and credited for her services during that period. The petitioner appealed the commissioner's decision to the board, which on August 9, 1990, affirmed the commissioner's decision. Thereafter, on September 20, 1990, petitioner filed a petition for certiorari with this court that was granted on November 16, 1990.

I

The respondent urges this court to refrain from hearing petitioner's appeal, claiming that because the filing of the petition for certiorari was untimely, the decision of the board therefore became final. The board rendered its decision on August 9, 1990, and petitioner filed its petition for certiorari on September 20, 1990, forty-two days later.

General Laws 1956 (1988 Reenactment) §§ 16-39-1 through 16-39-3.1 provide the proper avenue for relief to parties with claims arising under the laws of education. Section 16-39-2 states in pertinent part "Any person aggrieved by any decision or doings of any school committee or in any other matter arising under any law relating to schools or education may appeal to the commissioner of * * * education." Furthermore § 16-39-3 provides for an appeal of the commissioner's decision to the board, stating, "Any decision of the commissioner in these matters shall be subject to an appeal to and review by the board of regents for elementary and secondary education." If respondent is still aggrieved after this combination of appeals, then the only judicial recourse available is by petitioning for a writ of common-law certiorari, not by appeal. Corrigan v. Donilon, 433 A.2d 198, 202 (R.I.1981); School Committee of Providence v. Board of Regents for Education, 429 A.2d 1297, 1301 (R.I.1981); Slattery v. School Committee of Cranston, 116 R.I. 252, 261, 354 A.2d 741, 746 (1976); Jacob v. Burke, 110 R.I. 661, 669-71, 296 A.2d 456, 461 (1972). Specifically § 16-39-3.1 states:

"All final decisions made after a hearing by the commissioner of elementary and secondary education or the board of regents for elementary and secondary education, and which are not subject to further judicial or administrative review, shall be enforceable by mandamus or any other suitable civil action in the superior court for Providence County at the request of any interested party. All such decisions of the commissioner or board shall become final if judicial or further administrative review is not properly sought within thirty (30) days of their issuance." (Emphasis added.)

The petitioner had thirty days from the date of the board's decision to file a petition for writ of certiorari but was in fact twelve days tardy. It appears that petitioner may have excluded weekends when computing the time limit established by § 16-39-3.1 since the period from August 9, 1990, to September 20, 1990, without weekends, is thirty days.

Rule 20(a) of the Supreme Court Rules provides the guidelines for the computation of time:

"In computing any period of time prescribed by these rules, by an order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period is to be included, unless it is a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Sunday nor a holiday."

Such language implies that weekends are to be included in computing any applicable period of time. We are cognizant of the fact that "[i]n the absence of statutory jurisdiction, this court has discretion in determining whether to grant petitions for certiorari." Davis v. Rhode Island Board of Regents for Education, 121 R.I. 473, 477, 399 A.2d 1247, 1249 (1979). Furthermore "the Legislature cannot divest this court of its power to review decisions of subordinate tribunals who exercise a judicial or quasi-judicial function." Valley Gas Co. v. Burke, 518 A.2d 1363, 1366 (R.I.1986) (quoting Providence Gas Co. v. Burke, 475 A.2d 193, 195 (R.I.1984)). We are also cognizant of the fact that this court has held that a petition for certiorari shall not be granted when there has been an unreasonable delay caused by a lack of due diligence in seeking relief. However, petitioner's tardiness coupled with what appears to be a reasonable mistake cannot be characterized as an unreasonable delay caused by a lack of due diligence. Accordingly we are of the opinion that the writ for certiorari having already been issued, petitioner's petition should be considered on its merits.

II

The petitioner argues that the commissioner erred in concluding that respondent was a regularly employed teacher for purposes of receiving a salary credit for the 1979 to 1983 school years. Specifically petitioner contends that since respondent accepted an hourly wage rather than payment pursuant to the existing union contract, she effectively waived any right to compensation pursuant to § 16-7-29. Furthermore, as a per diem substitute teacher who had never worked more than 134 days in any single school year from 1979 to 1983, respondent was not entitled to any benefits provided for in § 16-7-29.

"It is generally recognized that when a statute creates a private right for the public good, the donee of that private right lacks the power either to waive that right or to nullify it by private contract. See, e.g., School District v. Teachers Retirement Fund Association, 163 Or. 103, 108 95 P.2d 720, 722 (1939). Section 16-7-16 indicates that § 16-7-29 was enacted in order to 'provide a quality education for all Rhode Island youth * * *,' clearly a public purpose." Berthiaume v. School Committee of Woonsocket, 121 R.I. 243, 250-51, 397 A.2d 889, 894 (1979). In Berthiaume we held that as a donee of a private right for the public good, a teacher could not, by his or her acceptance of a per diem rate, waive his or her right to a minimum statutory wage. Accordingly in the instant case, respondent's acceptance of the per diem rate could not have effectively operated as a waiver of her right to compensation under § 16-7-29.

The petitioner's assertion that respondent was no more than a per diem substitute teacher, when contrasted with the commissioner's findings, presents us with an issue of first impression, the outcome of which requires an interpretation of the phrase "regularly employed."

Section 16-7-16 states that the term "regularly employed * * * as applied to certified personnel shall have the same meaning as defined in chapter 16 of this title." Unfortunately, § 16-16-1 fails to provide a working definition of this term. Indeed, in the definition for "teacher" § 16-16-1(2) only refers to the phrase in construing when a substitute teacher qualifies as regularly employed:

" 'Teacher' shall mean a person required to hold a certificate of qualification * * * who is engaged in teaching as his or her principal occupation and is regularly employed as a teacher in the public schools * * *. The term [teacher] shall include a person employed as a teacher * * * or any person * * * working in the field of education that...