Kolenberg v. Board of Educ. of City of Stamford
| Decision Date | 26 January 1988 |
| Docket Number | No. 13137,13137 |
| Citation | 206 Conn. 113,536 A.2d 577 |
| Court | Connecticut Supreme Court |
| Parties | , 44 Ed. Law Rep. 405, 3 IER Cases 746 John F. KOLENBERG v. BOARD OF EDUCATION OF the CITY OF STAMFORD et al. |
Marshall Goldberg, Stamford, for appellant (plaintiff).
Paul W. Orth, Hartford, with whom, on the brief, was Joan C. Harrington, Stamford, for appellees (defendants).
Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, COVELLO and HULL, JJ.
The plaintiff, John F. Kolenberg, appeals from a decision of the trial court rejecting the report of an attorney state trial referee, revoking the reference and entering judgment for the defendants.
The following facts are undisputed. The plaintiff was employed by the defendant, the board of education of the city of Stamford (board), as a mathematics teacher from April, 1974, to June, 1977. He was awarded tenure in March, 1977. In June, 1977, he requested a leave of absence for the 1977-78 school year. This request was granted. At the end of April, 1978, the plaintiff notified the board of his intention to return to work in September, 1978. The assistant superintendent of the board advised the plaintiff that, under the collective bargaining agreement between the board and the plaintiff's union, notification of his intention to return to work was required by February 1, 1978, 1 and that, as a consequence of the plaintiff's failure to meet that deadline, he had lost his entitlement to reemployment. The plaintiff's teaching position was still vacant at this juncture. Throughout the summer of 1978 and thereafter, the plaintiff sought reinstatement and reemployment for all positions for which he was certified, but was unsuccessful.
In October, 1978, the plaintiff brought this action against the board, the city of Stamford, Robert W. Peebles, superintendent of schools, and James J. Morris, assistant superintendent of personnel. The first count alleged that the defendants had failed to reemploy the plaintiff following his leave of absence, in violation of General Statutes § 10-151. In the second count, the plaintiff alleged that two teachers had been hired in violation of his rights and he sought a declaratory judgment that their employment contracts were illegal and void. He also sought temporary and permanent injunctions against the defendants and the two teachers and a writ of mandamus to compel the defendants to reinstate him in his former teaching job. Thereafter, the plaintiff amended his complaint to add a third count alleging that Morris had promised him first preference for an opening for a mathematics teacher and had broken that promise, and he added to his prayer for relief a claim for back pay and benefits.
Nearly six years after commencement of the suit, the plaintiff requested permission to amend his complaint to add claims of due process violations proscribed by 42 U.S.C. §§ 1983, 1985 and 1986, and the due process and equal protection clauses of the fourteenth amendment to the United States constitution. The defendants objected to the amendment and the court, Cioffi, J., denied the plaintiff leave to amend. Earlier, the court had stricken the case from the jury docket and ordered that it be tried to the court.
In 1984, the defendants moved for summary judgment on all three counts. The court, Ryan, J., granted the motion as to counts two and three, but denied summary judgment as to count one on the ground that a factual question regarding the plaintiff's tenure status was unresolved and that there was a legal question of whether the board's refusal to reemploy the plaintiff constituted a termination within the meaning of General Statutes § 10-151. The matter was referred to an attorney state trial referee for trial. After trial, the referee issued his report containing thirty-four findings of fact and a memorandum concluding that the plaintiff did not resign his position by failing to meet the February 1 deadline nor was he terminated by the board, and that he remained employed by the board. The referee assessed damages against the board in the amount of $116,899.88 for loss of wages and interest.
Following the denial by the referee of the defendants' motions to correct the report the matter came before the Superior Court for judgment. The court, Lewis, J., rejected the report, revoked the reference and rendered judgment for the defendants, holding that § 10-151 did not apply to the plaintiff's "constructive resignation" triggered by his failure to meet the February 1 deadline.
The plaintiff appeals raising as claims of error: (1) the manner in which the trial court reviewed, rejected and disposed of the referee's report; (2) the trial court's refusal to permit the plaintiff to amend his complaint; (3) removal of the case from the jury list; and (4) the trial court's granting of summary judgment on count two of the complaint. 2 We hold that the court lacked subject matter jurisdiction over counts one and two and should have dismissed the case. Accordingly, we find error only in the court's disposing of count one by rendering judgment for the defendants and in granting the defendants' motion for summary judgment on count two. In light of our disposition of this case, we need address only the first and fourth claims of error.
With respect to count one, the plaintiff contends that the court rejected the referee's report and revoked the reference in a manner inconsistent with Practice Book §§ 440 through 443. He argues that the court erroneously acted on the report by rejecting it when there were motions to correct it still outstanding, and that, following rejection, rather than leaving the case to be disposed of by the court, as directed by Practice Book § 443, 3 the trial court prematurely disposed of the case.
The defendants argue that the plaintiff's action was not cognizable under General Statutes § 10-151 and the court, therefore, lacked subject matter jurisdiction and appropriately rendered judgment for the defendants. We agree with the defendants that the court lacked subject matter jurisdiction.
General Statutes § 10-151, 4 the Teacher Tenure Act, provides for continuing employment of tenured teachers, except that a teacher may be terminated for inefficiency or incompetence, insubordination, moral misconduct, medical disability, elimination of the teaching position or loss of the position to another teacher, or other due and sufficient cause. General Statutes § 10-151(d)(1) through (6). The statute establishes procedures for notice to the teacher and hearing of the matter before an impartial panel; General Statutes § 10-151(d); and affords the teacher the right to appeal the decision to the Superior Court. General Statutes § 10-151(f).
Section 10-151 protects a tenured teacher from termination of employment except for cause or elimination of the teaching position. Cahill v. Board of Education, 198 Conn. 229, 240, 502 A.2d 410 (1985). We recognize that not all separations from employment as a teacher are encompassed by the statute. Since, by its terms, the statute contemplates termination initiated by the board of education, a teacher's retirement or voluntary resignation would not trigger the act's protections. We have also noted that termination of a tenured teacher's employment under § 10-151 "carries with it a suggestion of the teacher's unsuitability." Id., at 241, 502 A.2d 410. We have acknowledged that termination for cause "may implicate a teacher's professional standing and reputation for competence, efficiency, and integrity...." Lee v. Board of Education, 181 Conn. 69, 79-80, 434 A.2d 333 (1980).
Here, the plaintiff was denied renewal of his teaching position, not for reasons related to his personal competence, but because he had failed to meet the deadline for notifying the board of his intention to return to work in the following school year. Consequently, he was not terminated for cause within the meaning of § 10-151. See Delagorges v. Board of Education, 176 Conn. 630, 635-36, 410 A.2d 461 (1979). Furthermore, access to the courts under the Teacher Tenure Act is possible only on appeal of a decision of the board of education. General Statutes § 10-151(f). In this case, there was no appeal, nor could there have been. Therefore, the court lacked jurisdiction over the case, should not have referred it to a referee and should have dismissed the action. See Simmons v. State, 160 Conn. 492, 280 A.2d 351 (1971) (). Accordingly, it is not necessary for this court to determine whether the trial court properly followed the practice rules invoked by the plaintiff.
The plaintiff also argues, for the first time on appeal, that: (1) his tenure is a protected property right under the federal and state constitutions, violated by the nonrenewal provision of the collective bargaining agreement; (2) he was not aware of the deadline because he had not been given a copy of the collective bargaining agreement, and that the failure of the board to provide him a copy was itself a violation of the agreement; (3) as a matter of contract law, the deadline provision did not make time of the essence of the contract; and (4) the board did not consistently enforce such deadlines. These issues are not properly before this court because they were not raised below, nor did they arise after trial. Practice Book § 4185. Furthermore, had they been raised below, the trial court would have lacked subject matter jurisdiction to entertain them because they would more appropriately have been advanced in the context of a grievance proceeding. 5 School Administrators Assn. v. Dow, 200 Conn. 376, 382-83, 511 A.2d 1012 (1986).
The collective bargaining agreement between the plaintiff's union and the board delineates a formal four step procedure for filing a grievance: the...
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