Petitions of Davenport

• Decision Date: 05 October 1971
• Docket Number: Nos. 118-70-120-70,s. 118-70-120-70
• Citation: 129 Vt. 546,283 A.2d 452
• Court: Vermont Supreme Court
• Parties: Petitions of John DEVENPORT et al.

Page 452

283 A.2d 452

129 Vt. 546

Petitions of John DEVENPORT et al.

Nos. 118-70-120-70.

Supreme Court of Vermont.

Oct. 5, 1971.

Paterson, Gibson, Noble & Brownell, Montpelier, for petitioners Davenport and Baker.

Stebbins & Bradley, and Michael L. Slive, Hanover, for petitioner Carpenter.

John Parker, Springfield, for petitionees.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

HOLDEN, Chief Justice.

The petitioners are school teachers. By separate applications to this Court for writs of certiorari, they seek review of the action taken by the superintendent and board of school directors of the Hartford School District which resulted in their suspension, and subsequent dismissal, from the faculty of the Hartford high school. The action sought to be reviewed was taken by the school officials under the provisions of 16 V.S.A. § 1752.

While the specification of charges and the board's findings, as they relate to each petitioner, vary in some respects, the procedures followed in each case are the same. The matters relating to each of the petitioners were combined for hearing and all share in a common record.

It appears from the record, which accompanied the answer to the petitions, that the complainants were engaged by contract as teachers in the Hartford high school for the 1969-1970 school year. The proceedings which they call upon us to review culminated from events set in motion on May 7, 1970. On that day there was a student walkout and demonstration at the high school building and grounds during regular school hours, at a time assigned for class instruction.

As a consequence of this episode, the Hartford school board met on the evening of May 7th and again on the following afternoon. At the later meeting it was unanimously voted to instruct the superintendent of schools to suspend Charles Baker, John Davenport and Mrs. Susan A. Carpenter for noncompliance with their contracts under the provisions of 16 V.S.A. § 1752(b). On May 9, 1970 the defendant Harrison, the superintendent of schools, notified the petitioners Baker and Davenport of their suspension by the following communication:

'You are hereby notified that you have been suspended from your teaching duties at Hartford High School as of May 9, 1970.

'You are being suspended for failture (sic) to attend to duties, failure to carry out reasonable orders and directions of the principal, Superintendent and School Board, a proper ground under the provisions of the Title 16, Section 1752, Chapter 53 of the Vermont Statutes Annotated.

'Provisions under the above law provide for your right of appeal.'

A similar notice was directed to Mrs. Carpenter. Her suspension was for 'conduct unbecoming a teacher.' The notice also informed her of a right to appeal under the statute. Mrs. Carpenter acknowledged receipt of the notice on May 11th and referred to the reason given for her suspension. In this communication she informed the clerk of the school board of her right to be fully informed of the charges against her and lodged her protest at the insufficiency of the reasons given. She notified the board that she exercised her right to an appeal under 16 V.S.A. § 1752(d) and demanded a public hearing with a stenographer to transcribe the testimony to be given at the hearing.

The petitioners Baker and Davenport, by their attorney, on May 13th, notified the school board, through its clerk, that they appealed the suspension to the board of school directors for a review of the superintendent's decision. They also made similar requests that the hearing be public and that stenographic services be provided. On the following day they requested specific information, in writing, of the facts constituting the grounds for their dismissal. As will later appear, the requests for specification of the charges were complied with.

All of the petitioners received acknowledgements of their respective appeals. All were notified that hearings would be held on May 20, 1970. The hearings were not held on the date scheduled for the reason that on May 19 the petitioners applied to the United States District Court for injunctive relief against the defendants from proceeding further in the matter. The federal court withheld the relief requested, pending an administrative determination by the Hartford school board.

The three appeals were rescheduled and heard by the board on June 23 and 24, 1970. Each of the petitioners appeared in person, were represented by counsel and testified in their own behalf. The petitionee Harrison, superintendent of the Hartford schools, was also represented by counsel. The board made written findings of fact in each appeal which concluded with an order of dismissal as to each of the teachers concerned. The present applications followed.

Since the petitions for review have been challenged by the defendants' motion to dismiss, we deal with that question first. The motion is founded on the proposition that the rights and duties of the petitioners are governed by their teaching contracts. It is said the prevailing statute neither enlarges nor restricts the basic contractual rights of the teachers with their employer, nor are their legal remedies affected. The legislative history and the substantive and procedural aspects of the 1963 amendment of 16 V.S.A. § 1752 demonstrate the argument to be unsound.

Prior to 1963, this section provided:

§ 1752. Noncompliance with contract; dismissal

A teacher under contract to teach in a public school, who fails, without just cause, to complete the term for which the teacher contracted to teach, shall be disqualified to teach in any public school for the remainder of the school year. A superintendent may dismiss a teacher who, in his judgment, is incompetent or unfit for the position. Such dismissal shall be in writing and one copy shall be given to the teacher and one to the chairman of the board of school directors; and thereupon such teacher's contract shall be void, but he shall be paid pro rata to the time of his dismissal.

The 1963 amendment retained only the first sentence of the former statute and added subsections (b) through (j). , 1963, No. 132. The enactment added:

§ 1752. Grounds and procedures for suspension and dismissal

(b) A superintendent may suspend a teacher under contract on the grounds of incompetence, conduct unbecoming a teacher, failure to attend to duties or failure to carry out reasonable orders and directions of the superintendent and school board.

(c) The suspension shall be in writing and shall set forth the grounds therefor. Copies shall be delivered to the teacher, and to the chairman and to the clerk of the board of school directors. Thereafter, performance under the teacher's contract shall be suspended, but he shall be paid pro rata to the time of his dismissal by the board.

(d) The teacher so suspended shall have the right to appeal to the board of school directors of the district for review of the decision. Filing a written notice of appeal with the clerk of the school board within seven days of the effective date of the suspension shall initiate the appeal. The clerk of the board shall forthwith forward a copy of the notice of appeal to the superintendent and send to the teacher an acknowledgment of receipt of the appeal.

(e) The school board to which the appeal is directed shall hear the appeal within ten days of receipt of notification. The teacher and the superintendent shall be advised by the clerk of the board of the time and place of hearing by written notice at least three days before the date of hearing.

(f) All parties shall be entitled to counsel at every stage of the proceedings established by this section. Hearings shall be in executive session, unless the teacher making an appeal requests or agrees in writing that they be open to the public. A teacher making an appeal may waive in writing his right to a hearing.

(g) Upon hearing, or if no appeal is taken, the school board shall affirm or reverse the suspension or take such other action, including dismissal, as may appear just. If the suspension, or the dismissal, is reversed, the teacher shall not suffer any loss of pay, retirement benefits, or any other benefits to which he would otherwise have been entitled.

(h) The decision of the school board shall be in writing and filed with the clerk of the school board not later than five days after the hearing or after the time for taking an appeal has expired. The clerk shall within three days notify the superintendent and the teacher in writing of the decision.

(i) No action at law shall lie on the part of a teacher against any school district for breach of contract by reason of suspension or dismissal unless the procedures herein described have been followed by said teacher.

(j) Every teacher's contract shall be deemed to contain the provisions of this statute and any provision in the contract inconsistent with this statute shall be considered of no force or effect.

The procedures established to afford a suspended teacher the right to appeal his suspension, are judicial in nature. By this enactment, the Legislature has enlarged the traditional functions of the school boards, as administrative agencies, to include the power to try and determine questions of fact and apply the statute according to the facts as they find them to be. Within this limited area, they are entrusted with quasi judicial power. Trybulski v. Bellows Falls Hydro-Electric Corporation, 112 Vt. 1, 7-8, 20 A.2d 117. Absent other methods of appeal, important questions of law, unlike issues of fact, are subject to review on certiorari, as provided in 4 V.S.A. § 2. Davidson v. Whitehill, 87 Vt. 499, 507-509, 89 A. 1081. The motion to dismiss is denied.

That is not to say the writ will be granted as a matter of right. Its issuance is largely discretionary according to the merits of the case made by the petition and the record. Emrick v. Connarn, 128 Vt. ---, 260 A.2d 380, 382; ...