School Committee of City of Providence v. Board of Regents for Ed., 78-275-M

• Court: Rhode Island Supreme Court
• Writing for the Court: BEVILACQUA; SHEA
• Citation: School Committee of City of Providence v. Board of Regents for Ed., 429 A.2d 1297 (R.I. 1981)
• Decision Date: 21 May 1981
• Docket Number: No. 78-275-M,78-275-M
• Parties: SCHOOL COMMITTEE OF the CITY OF PROVIDENCE v. BOARD OF REGENTS FOR EDUCATION. 1 P.

Page 1297

429 A.2d 1297

SCHOOL COMMITTEE OF the CITY OF PROVIDENCE v. BOARD OF REGENTS FOR EDUCATION. ¹

No. 78-275-M.P.

Supreme Court of Rhode Island.

May 21, 1981.

Vincent J. Piccirilli, Providence, for petitioner.

Abedon, Stanzler, Biener, Skolnik & Lipsey, Richard A. Skolnik, Providence, for Carl S. Lauro.

OPINION

BEVILACQUA, Chief Justice.

This is a petition for a writ of certiorari by the defendant Providence School Committee (committee) seeking a review of a decision of the Board of Regents for Education affirming a finding of the Commissioner of Education that the plaintiff, Carl S. Lauro (Lauro), was to be considered a long-term substitute teacher and therefore was improperly terminated by the committee.

The facts of this case are as follows. Lauro was employed intermittently as a per diem substitute teacher taking the place of various teachers in several schools in the Providence school system from September 7, 1976, until November 3, 1976. From November 4, 1976, through April 29, 1977, Lauro was employed for 105 consecutive days, substituting for a teacher on sick leave and bringing his total days for the year to 134. On Friday, April 29, 1977, Lauro was notified by a telephone call from the office of the assistant superintendent for personnel that he was not to report to work on Monday, May 2, 1977. At this time, Lauro was one day shy of the 135-day total needed for "regularly employed" status under G.L. 1956 (1969 Reenactment) § 16-16-1(2) as amended by P.L. 1976, ch. 236, § 2, and subsequent to this suit, by P.L. 1979, ch. 211, § 1, and for membership as a long-term substitute in the collective bargaining unit under the agreement between the committee and the Providence Teachers' Union (union). ² Thereafter, Lauro was not employed by the Providence School Department in any capacity after April 29, 1977, to the end of the 1976-77 school year.

During the 134 days Lauro was a per diem substitute teacher, he received $28 per day. He received no benefits pursuant to the terms and conditions of the collective-bargaining agreement. With the support of the union, Lauro complained to the committee that he had been unfairly terminated and should have been accorded the rights and privileges of a long-term substitute. ³ The committee disagreed with this argument, relying on budgetary concerns and its belief that no statute or provision of the collective-bargaining agreement had been violated. After a hearing conducted by the Associate Commissioner of Education (associate commissioner), the Commissioner of Education (commissioner) found in favor of Lauro. The committee appealed to the Board of Regents for Education (board) in accordance with G.L. 1956 (1969 Reenactment) § 16-39-3 and the board affirmed the commissioner's decision. The committee then filed this petition for a writ of certiorari which we granted to consider several assignments of error.

The issues presented by this petition are (1) whether the commissioner erred by allowing the union to represent Lauro at the original hearing, (2) whether the commissioner had jurisdiction to hear Lauro's appeal, and (3) whether the committee's failure to recall Lauro and to afford him the salary and rights of a "regularly employed" teacher violates the laws of this state or Lauro's interest in becoming a member of the collective-bargaining unit.

I

General Laws 1956 (1968 Reenactment) ⁴ § 28-9.3-3 states that the "labor organization selected by the certified public school teachers * * * shall be recognized * * * as the sole * * * bargaining agent for all of the said public school teachers * * *." In Belanger v. Matteson, 115 R.I. 332, 346 A.2d 124 (1975), cert. denied, 424 U.S. 968, 96 S.Ct. 1466, 47 L.Ed.2d 736 (1976), we held that a teachers' union must represent all personnel within the bargaining unit whether members or not. However, under § 16-16-1(2) of the General Laws, per diem substitutes are not "regularly employed" teachers. Moreover, per diem substitutes are expressly excluded from the bargaining unit under the 1976-79 collective-bargaining agreement.

At the same time, we are not unmindful of Lauro's threshold argument. Lauro contends that, but for improper termination by the committee, he would belong to the collective-bargaining unit and would have fulfilled the statutory and contractual prerequisites for becoming a "regularly employed" teacher.

The committee argues that the Providence Teachers' Union, through its proxy, Joseph Grande, should not have been allowed to represent Lauro at the initial hearing before the Associate Commissioner of Education. ⁵ The committee correctly asserts that Lauro was not a member of the union. ⁶ According to the committee, the statutory scheme created to govern appeals to the Commissioner of Education precludes union representation under these circumstances. ⁷

General Laws 1956 (1969 Reenactment) §§ 16-39-1 through 16-39-7 and the rules enacted pursuant to these sections do not expressly or impliedly limit the right of a party to choose its own legal exponent when bringing a complaint. The committee contends, however, that because the statutes and rules make no reference to the specific issue of union representation, the union must not act as advocate in a title 16, chapter 39 administrative hearing. This argument is unpersuasive, and we reject it. Because this is the only basis upon which the committee objects to Mr. Grande's representation, we decline to rule whether such representation of a person outside the bargaining unit would always be appropriate. In a certiorari proceeding, the court's review is confined to questions raised by the petitioner (the committee). Lynch v. King, R.I., 391 A.2d 117, 123 (1978). It follows that this court, when expedient, may limit its review of these questions to the specific objections raised in the petition itself. See Providence Journal Co. v. Mason, 116 R.I. 614, 620, 359 A.2d 682, 685 (1976).

Therefore, in respect to the instant case, we shall not render the original appeal void because of the union's involvement. The union's advocacy, lawful or otherwise, should not prejudice Lauro's rights at this stage of the litigation. Furthermore, we find that Lauro acted in good faith when he took his appeal to the associate commissioner. Cf. Lorraine Manufacturing Co. v. Wilson, 73 R.I. 313, 318, 55 A.2d 861, 863-64 (1947) (innocent appellant not penalized for unlawful representation of claim by nonlawyer).

II

The next issue raises the question of whether the Commissioner of Education had jurisdiction to entertain this appeal. Lauro asserts that the commissioner had jurisdiction under § 16-39-2. ⁸ Under this section several requirements must be met. First, the party appealing to the commissioner must be "aggrieved" within the meaning of the statute. See Slattery v. Cranston School Committee, 116 R.I. 252, 354 A.2d 741 (1976); Pawtucket School Committee v. State Board of Education, 103 R.I. 359, 237 A.2d 713 (1968); Demers v. Collins, 98 R.I. 312, 201 A.2d 477 (1964); McKeon v. Warwick School Committee, 77 R.I. 421, 75 A.2d 313 (1950); Appeal of Cottrell, 10 R.I. 615 (1873); Appeal of Gardiner, 4 R.I. 602 (1858). Relying on the circumstances of this case, we do not hesitate to find Lauro an "aggrieved" person. By deciding not to ask Lauro to return to work, the committee denied Lauro a significant salary increase, benefits, and continued employment. Section 16-39-2 was designed to allow individuals, such as Lauro, a forum before which they could bring their grievances.

Second, the appeal must involve a "decision" or "doing" of a school committee. Lauro's termination was the direct result of a policy decision carried out by the committee pursuant to its statutory duty to administer the Providence school system. Thus, the second requirement is satisfied.

Third, the committee's decision must arise under a law relating to schools or education. As one of the committee's jurisdictional objections, it claims that no school law was violated. This claim, however, embraces the merits of the case and does not resolve the jurisdictional issues. General Laws 1956 (1969 Reenactment) § 16-2-8, now amended by P.L. 1980, ch. 152, § 2, vests the "selection of teachers * * * and the entire care, control, and management of all the public school interests" in the school committee of a particular city or town. General Laws 1956 (1969 Reenactment) § 16-2-11, now amended by P.L. 1980, ch. 152, § 2, delegates the direct care and supervision of the school system in each town and city to the superintendent. Clearly, therefore, the policy of the Providence School Committee to prevent per diem substitutes from becoming "regularly employed" within the school system and the action by the assistant superintendent in carrying out that mandate arise under the laws relating to schools and education.

The committee's second jurisdictional objection concerns the union's contractual agreement to arbitrate disputes arising under the collective-bargaining agreement. By the committee's own admission, however, Lauro was not a member of the union and was not subject to the provisions of the collective-bargaining agreement. Article 1-1 of the agreement specifically excludes per diem substitutes from the bargaining unit. Although Lauro contends that he should have been recognized as a long-term substitute, the committee may not turn this contention against Lauro and continue to argue that Lauro was properly denied this status. ⁹

Finally, we hold that the appeal involved in the instant case falls outside the scope of § 16-13-4. That section is the exclusive jurisdictional provision for tenured teachers dismissed for cause or nontenured teachers who wish to contest nonrenewal of their contracts. Jacob v. Burke, 110 R.I. 661, 669, 296 A.2d 456, 461 (1972); see Latham v. State Education Department, 116 R.I. 245, 248, 355 A.2d 400, 402 (1976). Technically, Lauro is a nontenured teacher whose contract,...