Moran v. Sch. Comm. of Littleton

• Decision Date: 05 February 1945
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: MORAN v. SCHOOL COMMITTEE OF LITTLETON.

317 Mass. 591

59 N.E.2d 279

MORAN

v.SCHOOL COMMITTEE OF LITTLETON.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 5, 1945.

Petition by John Geddes Moran for a writ of mandamus against the School Committee of Littleton to compel the Committee to reinstate petitioner to his position as high school principal from which he had been removed after a public hearing. The Superior Court ordered the entry of judgment dismissing the petition, and petitioner appeals.

Order affirmed.Appeal from Superior Court, Middlesex County; F. Forte, Judge.

Before FIELD, C. J., and QUA, DOLAN, RONAN, and WILKINS, JJ.

H. D. White, of Boston, for petitioner.

J. N. Kelly, of Boston, for respondent.

RONAN, Justice.

The petitioner, a teacher serving at the discretion of the school committee, having been removed by the committee from his position as principal of the high school of Littleton after a public hearing upon charges preferred by the committee, appealed from an order of the Superior Court dismissing a petition for mandamus which he brought to secure his reinstatement.

During the hearing before the committee, two of the three members who then constituted the committee testified under oath as witnesses, and were examined by counsel for the committee and cross-examined by counsel for the petitioner. Each of them after testifying resumed his duties as a member of the committee. Nothing in the record indicates that the petitioner objected to this procedure, but he now contends that by becoming witnesses they were thereby disqualified to act further as members and the decision in which they participated was void.

The power of school committees to elect and contract with teachers and their duty to maintain the schools at a high standard have been frequently stated in the decisions of this court and we need not repeat what was there stated. See, for instance, Leonard v. School Committee of Springfield, 241 Mass. 325, 135 N.E. 459;Decatur v. Auditor of Peadoby, 251 Mass. 82, 146 N.E. 360;Ring v. Woburn, 311 Mass. 679, 43 N.E.2d 8;Hayes v. Brockton, 313 Mass. 641, 48 N.E.2d 683. The responsibility for the removal of a teacher who is incompetent or whose retention would be detrimental to the best interests of the public school system rests exclusively with the committee, although the exercise of the power to remove a teacher has for many years been regulated by statute, more especially with reference to teachers who like the petitioner are employed to serve at the discretion of the committee. G.L. (Ter.Ed.) c. 71, § 42, as appearing in St.1934, c. 123; Knowles v. Boston, 12 Gray 339; Toothaker v. School Committee of Rockland, 256 Mass. 584, 152 N.E. 743;Rinaldo v. School Committee of Revere, 294 Mass. 167, 1 N.E.2d 37;Graves v. School Committee of Wellesley, 299 Mass. 80, 12 N.E.2d 176;Frye v. School Committee of Leicester, 300 Mass. 537, 16 N.E.2d 41;Perkins v. School Committee of Quincy, 315 Mass. 47, 51 N.E.2d 978. These statutory provisions do not limit the power conferred upon the committee but restrict the manner of its exercise. No provision has been made by the Legislature to substitute anyone for a member of the committee who might be biased, prejudiced or personally interested in the ousting of a teacher, or who by physical or other reasons is unable to be present and participate in the hearings. Perkins v. School Committee of Quincy, 315 Mass. 47, 51 N.E.2d 978. Compare Real Properties, Inc. v. Board of Appeal of Boston, 311 Mass. 430, 42 N.E.2d 499. Furthermore, no removal can be effected except by a two-thirds vote of the entire committee. It is unlikely that members of a school committee, especially in a small town, will not learn of the public's criticism of or dissatisfaction with the work or conduct of a teacher, particularly one who occupies the highest position on the teaching staff. It can hardly be contended that possession of such information by a member of the committee would disqualify him from hearing the charges and voting to retain or discharge the teacher. If members are to be disqualified upon such grounds, then it would frequently happen that the committee charged with the duty of removing a teacher could not act, and that a teacher, no matter how incompetent or unsuited on account of improper conduct of one kind or another, would remain immune to removal. It would be a reproach to the law if no remedy existed for the elimination of such a situation. The general rule is that a member of an administrative board who is biased or prejudiced against one on trial before the board is not required to withdraw from the hearing if no other board can hear and determine the matter, especially if his withdrawal would deprive the board of the number of members required to take a valid affirmative vote. This rule is based on necessity and is designed to enable the board to exercise its power where it might otherwise be barred from doing so on account of the bias, interest or prejudice of its members. Commonwealth v. Ryan, 5 Mass. 90;Hill v. Wells, 6 Pick. 104;Commonwealth v. McLane, 4 Gray 427;Ison v. Western Vegetable Distributors, 48 Ariz. 104, 59 P.2d 649;Caminetti v. Pacific Mutual Life Ins. Co., 22 Cal.2d 344, 139 P.2d 908;Gordy v. Dennis, 176 Md. 106, 5 A.2d 69;Hawkins v. Common Council of Grand Rapids, 192 Mich. 276, 158 N.W. 953, Ann.Cas.1917E, 700;State v. Burney, 269 Mo. 602, 191 S.W. 981;State v. District Court, 87 Mont. 108, 285 P. 928;Crane v. Mayor & Aldermen of Jersey City, 90 N.J.L. 109, 103 A. 678;People v. Waldo, 212 N.Y. 156, 105 N.E. 961;Bradycamp v. Metzger, 310 Pa. 320, 165 A. 387;State v. Humphreys, 163 Tenn. 20, 40 S.W.2d 405;Rutter v. Burke, 89 Vt. 14, 93 A. 842;State v. Houser, 122 Wis. 534, 100 N.W. 964. Compare Coyne v. Alcoholic Beverages Control Commission, 312 Mass. 224, 44 N.E.2d 692.

The two members of the board were not disqualified by acquiring the information that they disclosed as witnesses. Neither were they barred from further considering the case on account of the fact that they had testified. The petitioner was entitled to know all the evidence upon which the committee based its decision. If they considered their information material, they could not properly remain silent. The plain dictates of justice required them to disclose the facts that they knew, if they intended to consider them with the other testimony. If they did not divulge these facts and did consider them in reaching their conclusion to dismiss the petitioner, then the latter was deprived of the right given to him by the statute which prohibited his removal unless the charges were substantiated by evidence produced at the hearing. Even in the absence of such a statutory provision, a decision made in a quasi judicial proceeding by an administrative board based on evidence known only to the members of the board is a nullity. American Employers' Ins. Co. v. Commissioner of Insurance, 298 Mass. 161, 10 N.E.2d 76;Boott Mills v. Board of Conciliation and Arbitration, 311 Mass. 223, 40 N.E.2d 870;Burns v. Thomas Cook & Sons, Inc., 317 Mass. 398, 58 N.E.2d 150. See Berlandi v. Commonwealth, 314 Mass. 424, 447, 448, 50 N.E.2d 210. To hold that the committee might proceed upon information that some of its members had acquired before the hearing and had withheld from the petitioner ‘would nullify the right to a hearing,-for manifestly there is no hearing when the party does not know what evidence is offered or considered, and is not given an opportunity to test, explain, or refute.’ Interstate Commerce Commission v. Louisville & Nashville Railroad, 227 U.S. 88, 93, 33 S.Ct. 185, 187, 57 L.Ed. 431;Morgan v. United States, 304 U.S. 1, 17-20, 58 S.Ct. 999, 82 L.Ed. 1129.

Doubtless, counsel is under an obvious and serious handicap in cross-examining a member of the committee before whom his client is on trial upon charges preferred by the committee, who it must be assumed had sufficient knowledge and confidence in the truth of the charges to warrant it in bringing ouster proceedings; but it must be kept in mind that the proceedings are brought in the public interest, and if the procedure provided is thought to impose too great a hardship upon a teacher the remedy lies with the Legislature.

The petitioner objected to the introduction of six affidavits at the hearing before the committee. It may well be that the affidavits were competent evidence, not as to the truth of the facts stated therein but as bearing upon the good faith of the committee in the formulation of the charges and in proceeding with the hearing, Bacon v. Towne, 4 Cush. 217;Higgins v. Pratt, 316 Mass. 700, 56 N.E.2d 595, and that there was no error in their admission on the principle that a general exception to the introduction of testimony cannot be sustained if the testimony was admissible for a specific purpose and there was no request that it be limited to that purpose. Hubbard v. Allyn, 200 Mass. 166, 171, 86 N.E. 356;Leonard v. Boston Elevated Railway, 234 Mass. 480, 483, 125 N.E. 593;Curtin v. Benjamin, 305 Mass. 489, 493, 26 N.E.2d 354, 129 A.L.R. 433. We prefer not to dispose of the point in this manner but to consider it upon the broad grounds upon which it is raised.

Affidavits are not competent evidence to prove the truth of the statements that they contain upon a trial on the merits in courts of law unless they come within some established exception to the hearsay rule or come within some statutory provision. Poignard v. Smith, 8 Pick. 272;Gray v. Moore, 7 Gray 215;Browne v. Fairhall, 218 Mass. 495, 106 N.E. 177;Irwin v. Worcester Paper Box Co., 246 Mass. 453, 141 N.E. 286;Finer v. Steuer, 255 Mass. 611, 152 N.E. 220; Vonherberg v. Seattle, D.C., 20 F.2d 247;Vendetti v. United States, 9 Cir., 45 F.2d 543;Stewart Bros. v. Ransom, 204 Ala. 589, 87 So. 89;Brenneman v. Dillon, 296 Ill. 140, 129 N.E. 564;Markendorf v. Friedman, 280 Ky. 484, 133 S.W.2d 516, 127 A.L.R. 416;Lobuzek v. American Car & Foundry Co., 194 Mich. 533, 161 N.W....