Nester v. School Committee of Fall River

• Decision Date: 14 September 1945
• Citation: 62 N.E.2d 664,318 Mass. 538
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: MARY T. F. NESTER v. SCHOOL COMMITTEE OF FALL RIVER & another (and three companion cases [1]).

318 Mass. 538

62 N.E.2d 664

MARY T. F. NESTER v. SCHOOL COMMITTEE OF FALL RIVER & another (and three companion cases ^[1]).

Supreme Judicial Court of Massachusetts, Bristol.

September 14, 1945

May 29, 1945.

Present: FIELD, C.

J., DOLAN, RONAN WILKINS, & SPALDING, JJ.

School and School Committee.

As applied to a substitute public school teacher, the phrase "served . for the three previous consecutive school years" in G L. (Ter. Ed.) c.

71, Section 41 signifies a continuity of service for that period and is not satisfied by intermittent and irregular service.

Neither a substitute teacher who served in the public schools of a municipality for substantial periods in each of three consecutive school years, but for periods totalling only about one half a normal school year in one of such three years, nor another substitute teacher who served continuously throughout the first two of such years and during the third year until her resignation was tendered and accepted more than a month before its end, had served "for the three previous consecutive school years" within G. L. (Ter. Ed.) c. 71, Section 41, when, in accordance with a vote of the school committee, she was employed full time for the entire fourth year; and neither teacher had acquired tenure under the statute as a teacher employed to serve at discretion.

FOUR PETITIONS for writs of mandamus, filed in the Superior Court on October 11, 1944.

The cases were reported by Sullivan, J.

In this court the cases were submitted on briefs. T. C. Crowther, for the petitioners.

G. L. Sisson, Corporation Counsel, for the respondents.

SPALDING, J. These are four petitions for writs of mandamus by which each petitioner seeks to compel the respondents to reinstate her as a teacher in the public schools of Fall River on the ground that she had acquired the status of a teacher employed "at discretion" within G. L. (Ter. Ed.) c. 71 Section 41, and was dismissed in violation of the provisions of G. L. (Ter. Ed.) c. 71, Section 42, as appearing in St. 1934, c. 123.

There is an agreement as to all the material facts, and the cases upon request of the parties were reported to this court, without decision, pursuant to G. L. (Ter. Ed.) c. 231, Section 111. Moore v. Election Commissioners of Cambridge, 309 Mass. 303 , 305. The statement of agreed facts in each case provided that it was to supplement the facts admitted in the pleadings. Contrary to the contention of the respondents, although the law until recently was otherwise (Lowry v. Commissioner of Agriculture, 302 Mass. 111, 112), the untraversed affirmative allegations in the answer in each case are not to be taken as true, but in accordance with St. 1943, c. 374, Section 2, amending G. L. (Ter. Ed.) c. 249, Section 5, "shall be considered to be denied by the petitioner without a replication," with exceptions not here material.

Each of the petitioners served as a "substitute," teaching regular classes in the public schools of Fall River during the school years 1940-1941 and 1941-1942 for the number of days set forth in the footnote.

^[1] From September 9, 1942, to October 5, 1942, the petitioners served as substitutes, teaching regular classes for periods ranging from nine and one half days to seventeen and one half days. ^[2] On

October 5, 1942, the school committee voted that certain persons, including the petitioners, be "assigned" to elementary schools for "two and a half days each regular school week," and the petitioners were assigned in accordance with this vote. On November 2, 1942, the school committee rescinded this vote and voted that the petitioners and one other person be "assigned for full-time employment" to elementary schools "until further notice." The superintendent accordingly assigned each of the petitioners to two elementary schools and they (with the exception of Mrs. Alderman, who served until her resignation on May 25, 1943) continued in full-time employment at the schools until June 30, 1943, the end of the school year. On August 30, 1943, the school committee, at the request of the petitioner Alderman, voted that she be "reinstated to her former position."

On September 15, 1943, the school committee voted that the "four assistants who were assigned to schools last year be reassigned by the superintendent." Pursuant to assignments by the superintendent in accordance with this vote, each of the petitioners was employed full time for the entire school year of 1943-1944. On August 9, 1944, the petitioners, in accordance with a vote of the school committee on August 7, 1944, were notified that their assignments ended with the close of the school year on June 30, 1944, and would "not be renewed for the school year, upon the failure of recommendation by the superintendent." The petitioners were not thereafter employed in the public schools of Fall River although there was work to be done of the kind previously performed by them.

It was agreed that none of the petitioners has ever "been guilty of any acts of inefficiency, incapacity, conduct unbecoming a teacher, or insubordination," and it was further agreed, except as to the petitioner Alderman, that none was guilty of "other acts or conduct amounting legally to good cause for dismissal, removal or discharge," and that each "has always performed her duties to the satisfaction of the school authorities." "At least one hundred eighty days constitute a normal school year in Fall River."

The question presented for decision with respect to each petitioner is whether she has acquired the status of a teacher employed "at . . . discretion" within the meaning of G. L (Ter. Ed.) c. 71, Section 41. If she acquired such a status she could be dismissed only in accordance with G. L. (Ter. Ed.) c. 71, Section 42, as amended, the provisions of which were not observed. Section 41, in so far as here material, provides that "Every school committee, except in Boston, in electing a teacher . . . who has served in its public schools for the three previous consecutive school years . . . shall employ him to serve at its discretion." The terms of this section are mandatory, and a school committee has no option to elect the teachers there described except "to serve at its discretion." Paquette v. Fall River, 278 Mass. 172 , 174. Frye v. School Committee of Leicester, 300 Mass. 537, 538. As we observed in the Frye case, the purpose of this section "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" (pages 538-539). In that case, which is strongly relied upon by the petitioners, it was held that continuous employment of a substantial character of a part-time teacher could be counted in computing the probationary period; that the statute made no distinction between part-time and full-time teachers; and that the sole test was...