Town of Milton v. Director of the Div. of Employment Sec.

• Decision Date: 22 July 1982
• Parties: , 5 Ed. Law Rep. 965 TOWN OF MILTON v. DIRECTOR OF THE DIVISION OF EMPLOYMENT SECURITY et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 71

438 N.E.2d 71

386 Mass. 831, 5 Ed. Law Rep. 965

TOWN OF MILTON v. DIRECTOR OF THE DIVISION OF EMPLOYMENT SECURITY et al.

¹

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued April 9, 1982.

Decided July 22, 1982.

Robert D. O'Leary, town counsel, Quincy, for plaintiff.

George J. Mahanna, Asst. Atty. Gen., for Director of the Div. of Employment Sec.

LIACOS, Justice.

During most of the 1979-1980 school year, Mary DeBesse (the claimant) was employed as a school bus driver by a private bus company which was under a contract with the town of Milton to provide school bus services. In late March, 1980, the company defaulted on its contract, and the town assumed operation of the buses. In order to do so, the town hired the claimant, and other school bus drivers employed by the same bus company, for the remainder of the school year. The written agreement between the parties provided that the school department would reemploy the claimant in the same capacity at the beginning of the next school year, if no new private contract was signed. ²

At the end of the school year, the claimant was informed by a representative of another bus company, then negotiating with the town for the school bus contract, that she would most likely be hired by that company for the coming school year. Subsequently, the town and the company entered into a contract, and the claimant was in fact employed in this manner by the second company for the 1980-1981 school year.

The director of the Division of Employment Security (Division) found "that the claimant was employed as a school bus driver by the Milton School Department from April 1, 1980 through the end of the school year in June 1980 and that, although she has reasonable assurance of reemployment in the same capacity for the next ensuing school year, such reemployment will not be in the employ of an educational institution. Therefore, the claimant is not subject to the disqualifying provisions of Section 28A of the [Employment Security] Law." This decision was affirmed by the board of review of the Division. The District Court judge affirmed, and the town takes this appeal. G.L. c. 151A, § 42.

The town argues that the award to the claimant of unemployment compensation benefits for the months between her terms of employment should be reversed because she was disqualified by the terms of G.L. c. 151A, § 28A. That section of the Employment Security Law denies benefits to certain employees of educational institutions for the weeks between two successive academic years or terms "if such individual performs such services [in employment] in the first of such academic years or terms and there is a reasonable assurance that such individual will perform such services in the second of such academic years or terms." G....