Perkins v. School Committee of Quincy

• Decision Date: 29 November 1943
• Parties: F. GLADYS PERKINS v. SCHOOL COMMITTEE OF QUINCY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 47

51 N.E.2d 978

F. GLADYS PERKINS v. SCHOOL COMMITTEE OF QUINCY.

Supreme Judicial Court of Massachusetts, Norfolk.

November 29, 1943

November 9, 1943.

Present: FIELD, C.

J., LUMMUS, QUA COX, & RONAN, JJ.

School and School Committee. Public Officer.

A member of a school committee who was not present at a hearing held by the committee under G. L. (Ter. Ed.) c. 71, Section 42, as appearing in St.

1934, c. 123, did not participate in the hearing although thereafter he read the entire stenographic record thereof.

Under G. L. (Ter Ed.) c. 71, Section 42, as appearing in St. 1934, c. 123, a member of a school committee who did not participate in a hearing given a teacher is not qualified to vote to dismiss the teacher.

A vote by six of the seven members of a school committee to dismiss a teacher was ineffectual to bring about his dismissal under G. L (Ter.

Ed.) c. 71, Section 42, as appearing in St. 1934, c. 123, where two of the six members so voting had not been present at a hearing previously given the teacher under the statute, although before voting they had read the entire stenographic record of the hearing; a vote of at least five members who had participated in the hearing was required to satisfy the statutory requirement of "a two thirds vote of the whole committee."

PETITION for a writ of mandamus, filed in the Supreme Judicial Court for the county of Norfolk on January 29, 1941, and transferred to the Superior Court.

The case was heard by Donahue, J.

J. P. Flavin, for the respondents. E. B. Cook, for the petitioner.

FIELD, C.J. This is a petition for a writ of mandamus brought in the Superior Court against the members of the school committee of the city of Quincy to compel them to restore the petitioner to the position of a teacher in the public schools of said city from which she was dismissed by action of the school committee. The case was referred to an auditor who made a report and was heard by a judge of the Superior Court upon the auditor's report. The judge found the facts to be as stated in the auditor's report and reported the case for the determination of this court. G. L. (Ter. Ed.) c. 231, Section 111; c. 213, Section 1B, as inserted by St. 1939, c. 257 Section 1.

The petitioner in September, 1940, had served as a teacher in the public schools of the city of Quincy for more than three years, and consequently was serving at "discretion" within the meaning of G. L. (Ter. Ed.) c. 71, Section 41. Provisions with respect to the dismissal of a teacher so serving are contained in G. L. (Ter. Ed.) c. 71, Section 42, as appearing in St. 1934, c. 123. These provisions include the following: "The school committee may dismiss any teacher, but in every town except Boston no teacher . . . shall be dismissed unless by a two thirds vote of the whole committee. In every such town a teacher . . . employed at discretion under the preceding section shall not be dismissed, except for inefficiency, incapacity, conduct unbecoming a teacher . . . insubordination or other good cause, nor unless at least thirty days, exclusive of customary vacation periods, prior to the meeting at which the vote is to be taken, he shall have been notified of such intended vote; nor unless, if he so requests, he shall have been furnished by the committee with a written charge or charges of the cause or causes for which his dismissal is proposed; nor unless, if he so requests, he has been given a hearing before the school committee which may be either public or private at the discretion of the school committee and at which he may be represented by counsel, present evidence and call witnesses to testify in his behalf and examine them; nor unless the charge or charges shall have been substantiated; nor unless, in the case of a teacher, the superintendent shall have given the committee his recommendations thereon."

Material facts found by the judge are as follows: "On September 26, 1940, the petitioner, pursuant to the provisions of G.L.c. 71, s. 42, as amended, requested the school committee to grant her a hearing with reference to any charges, and also requested specifications, which were furnished. Thereafter, on November 26, 1940, a hearing was held before five of the seven members of the school committee, at which time evidence was presented by the city solicitor for the city of Quincy, and by counsel for the petitioner. After the close of the evidence, arguments of counsel were heard by the five members of the school committee.

"On December 10, 1940, the entire committee, consisting of seven members, attended a meeting, the record of which set forth the following: `Pursuant to a vote of the school committee September 19, 1940, that a vote be taken on October 29, 1940, on the question of the removal of F. Gladys Perkins as teacher in the Quincy public schools for the following reasons: Insubordination and conduct unbecoming a teacher and failure to cooperate. And at a hearing granted to F. Gladys Perkins and held by agreement on November 26, 1940, at which hearing F. Gladys Perkins was represented by counsel, who presented evidence and called witnesses, and a recommendation having been received from the superintendent of schools in the premises, and the charges against F. Gladys Perkins having been substantiated, it was VOTED that F. Gladys Perkins be and she hereby is removed and dismissed as a teacher in the Quincy public schools. The roll call was as follows: Voting for dismissal, Mrs. Nichols, Messrs. Taylor, Prout, Flavin, Sutherland and Burgin. Voting present: Mr. Marini.' Mr. Prout and Mr. Burgin, two of the seven members of the committee who voted for dismissal, were not present at the hearing on November 26, 1940, when evidence was taken and argument of counsel made. They did not hear any of the testimony, or see any of the witnesses. They read the entire stenographic transcript of the evidence, and the arguments of counsel, before the meeting of December 10. . . . At this meeting of December 10, 1940, six members voted for dismissal, but these included the two who were not present at the hearing on November 29 [sic] and who did not hear the testimony of the witnesses but who had read the stenographic record thereof."

The fundamental question for decision is whether the dismissal of the petitioner was made in accordance with the statutory requirement that "no teacher . . . shall be dismissed unless by a two thirds vote of the . . . committee," read in the light of other requirements of the statute, particularly the requirement for a hearing "before the school committee" of the nature described in the statute. The judge ruled "as matter of law these two members [Prout and Burgin] were not qualified to vote on the . . . dismissal, and . . . since their votes cannot be counted, there was not a two-thirds vote of the committee as required by law." This ruling was right.

At the meeting of the school committee at which it was voted to dismiss the petitioner all the members of the committee were present --...