Kaufman v. School Committee of Boston

• Decision Date: 27 June 1984
• Citation: 18 Mass.App.Ct. 909,463 N.E.2d 1195
• Parties: , 17 Ed. Law Rep. 924 Arnold K. KAUFMAN v. SCHOOL COMMITTEE OF BOSTON et al. 1
• Court: Appeals Court of Massachusetts

Page 1195

463 N.E.2d 1195

18 Mass.App.Ct. 909, 17 Ed. Law Rep. 924

Arnold K. KAUFMAN v. SCHOOL COMMITTEE OF BOSTON et al. ¹

Appeals Court of Massachusetts Suffolk.

Argued Jan. 6, 1984.

Decided May 18, 1984.

Further Appellate Review Denied June 27, 1984.

Mary Jo Hollender, Sp. Asst. Corp. Counsel, Boston, for defendants.

Paul F. Kelly, Boston, for plaintiff.

Before GRANT, BROWN and KASS, JJ.

RESCRIPT.

In the fall of 1976, the plaintiff Kaufman was demoted from his job of acting assistant principal to that of teacher. Kaufman brought an action in the Superior Court, claiming that he had acquired tenure in his job as assistant principal and charging that in being demoted he had been denied the substantive and procedural protections of G.L. c. 71, § 42A. It is uncontested that Kaufman's new position is of a lower rank and salary than that of assistant principal. The pivotal question before us is whether Kaufman's action was timely filed. We hold that it was not.

The thrust of the plaintiff's claim here is that the school committee violated G.L. c. 71, § 42A, as appearing in St.1975, c. 199. Under that section, tenured administrators ² can only be demoted for "good cause" and are entitled to a number of procedural protections prior to demotion. The trial judge ruled that Kaufman's demotion was not accomplished in compliance with the procedures of § 42A and that therefore the statutory thirty- day limitation period set out in G.L. c. 71, § 43, was inapplicable. ³ This was error. Even though Kaufman's complaint seeks, in part, declaratory relief under G.L. c. 231A, because the essence of his claim is that his demotion violated § 42A, it properly is treated as an appeal of the demotion pursuant to § 43A. See and compare Stripinis v. Whitman-Hanson Regional Dist. Sch. Comm., 9 Mass.App. 819, 398 N.E.2d 509 (1980). Contrast Farrington v. School Comm. of Cambridge, 9 Mass.App. 474, 476-477, 402 N.E.2d 98 (1980), S.C., 382 Mass. 324 (1981) (§ 43A held inapplicable because the plaintiff was challenging her denial of tenure and failure to be rehired under § 41, and not a dismissal or demotion under § 42 or § 42A).

Kaufman in effect argues that § 43A is only applicable to demotions that have complied with the procedures set forth in § 42A and, therefore, that an action challenging a school committee's total failure to provide the procedural protections of § 42A need not comply with the thirty-day statute of limitations set forth in § 43A. Substantially the same argument was rejected in Stripinis, supra at 819, 398 N.E.2d 509. There, we held that "a complaint for declaratory relief which alleges purely procedural violations of the tenured teacher dismissal law (see G.L. c. 71, § 42) ⁴ is time barred by the thirty-day limitation period set out in G.L. c. 71, § 43A, for filing an appeal from the committee vote dismissing the teacher." See also Muldoon v. Whittier Regional Sch. Comm., 7 Mass.App. 653, 657-660, 389 N.E.2d 1013 (1979) (action held time-barred by statutory limitation period set forth in § 43A notwithstanding that none of the procedural protections mandated by § 42 had been followed). Contrast provisions of the civil service statute, G.L. c. 31, §§ 42, 43, which explicitly establish separate limitation periods for appeals claiming procedural defects and those claiming substantive errors.

Kaufman learned of his intended reassignment on September 3, 1976. On that same day, legal counsel filed on his behalf a grievance charging that the reassignment violated the bargaining agreement then in effect. That grievance plainly indicates Kaufman's awareness that the reassignment was a demotion. Under § 42A, he could have requested a hearing before the school committee at that time, but did not do so. See and compare Clark v. Mt. Greylock Regional Sch. Dist., 3 Mass.App. 549, 553, 336 N.E.2d 750 (1975). The formal demotion vote took place on October 26, 1976, and the statutory limitation period began to run at least as early as when Kaufman received notice of the vote in early November, over four months before the present action was commenced in April, 1977.

In order for the statutory limitation period to begin to run, Kaufman must have received unambiguous notice of the school committee's intention to demote him. See Clark v. Mt. Greylock Regional Sch. Dist., supra, at 552, 336 N.E.2d 750. Whether such notice has been received is to be measured by a "reasonable person" standard. Muldoon v. Whittier Regional Sch. Comm., 7 Mass.App. at 660, 389 N.E.2d 1013. See Nutter v. School Comm. of Lowell, 5 Mass.App. 77, 81, 359 N.E.2d 962 (1977). Kaufman argues that the communication he received in November that his reassignment was to be "without change of rank or salary" rendered the notice of the demotion ambiguous and hence prevented the running of the statutory period. By the time Kaufman received the notice of the school committee's vote confirming his reassignment, he had been working at a lower rank and lower rate of pay for some two months and was in the...