Martinez v. Anchorage School District , 699 P.2d 330 ( 1985 )

OPINION

RABINOWITZ, Justice.

AS 14.20.140 requires a school district which decides not to retain a teacher to deliver notice to that teacher. In this case the parties ask us to decide whether or not Mary Helen Martinez, whom the Anchorage School District hired a few weeks into the 1981-82 school year, was a “teacher” within the meaning of the statute. If so, we must then decide whether the District’s nonretention notice was timely. We hold that even if Martinez was entitled to invoke the statute, the Anchorage School District did not violate AS 14.20.140. Accordingly, we affirm the decision of the superior court, which granted summary judgment against Martinez.

Not long after the 1981-82 school year began, a tenured third-grade teacher at O’Malley Elementary School took an unexpected leave of absence. The School District then hired Martinez to fill the vacancy. She signed a contract, prepared by the School District, which purported to limit her rights to continuing employment. The title read: “Certified Employee’s Contract for Temporary Employment.” In boldfaced print, just below the title, the document warned: “NOTE: THIS CONTRACT IS FOR TEMPORARY EMPLOYMENT PURPOSES ONLY.” One paragraph recited that “[t]his contract creates no obligation on the District to offer continuing employment to employees except as provided by statute,” and a note to this paragraph conveyed a similar message: "This contract does not confer upon you a right of employment beyond the period contracted for herein.” These contractual provisions were standard: Martinez was one of one hundred and thirty-two School District employees hired pursuant to this type of contract during the 1981-82 term.

As the year wore on, the principal at O’Malley decided that Martinez’ teaching had not been satisfactory. He advised her that he would not recommend she be hired for the 1982-83 school year. Eventually, the School District accepted this recommendation, and its personnel office prepared a letter informing Martinez that her name had been removed from the “Preferential Hire list” for 1982-83.¹

In our view, the important question is whether the School District delivered this notice in a timely fashion. AS 14.20.140 provides:

Notification of nonretention, (a) If a teacher who has acquired tenure rights is not to be retained for the following school year, the employer shall notify the teacher of the nonretention by writing, delivered before March 16, or by registered mail postmarked before March 16.

(b) If a teacher who has not acquired tenure rights is not to be retained for the following school year the employer shall notify the teacher of the nonretention by writing delivered on or before the last day of the school term or by registered mail postmarked on or before the last day of the school term.

Assuming that Martinez was a “teacher” —a point which the School District does not concede — the facts from which one might conclude that the notice was “delivered on or before the last day of the school term” are important.²

The last day of the school term was Friday June 4, 1982. The School District’s letter, dated that day, had been prepared and was waiting at the School District’s administration building. However, Martinez was at O’Malley Elementary, some miles away, so a School District employee was dispatched to O’Malley with a copy of the letter. Meanwhile, Martinez’ supervisors at O’Malley told her to go to the administration building, where a letter would be waiting for her. The School District employee arrived after Martinez had left O’Malley Elementary, and Martinez never entered the administration building on June 4, 1982. She actually picked up the letter three days later, on June 7, 1982. Martinez subsequently filed suit, claiming the School District had not delivered an appropriate nonretention notice during the time provided by statute, and seeking an order reinstating her as a teacher for the 1982-83 school year.

The superior court held that Martinez was a non-tenured teacher, which entitled her to notice of nonretention under AS 14.20.140(b). It also held that the content of the notice was adequate, and that the correct official had signed it. The superior court then reasoned, “[t]he policy embodied in the personal delivery and registered mail provisions of the statute is that the Legislature intended that notice of non-retention be promptly and reliably given to a teacher at the end of the school year so as to allow the teacher to know what his or her employment status will be for the next year, and to afford the employee ample opportunity to seek alternate employment, if necessary, before the advent of the new school year.” Noting that if the School District had mailed a registered letter on June 4 Martinez probably would not have received the letter until June 7, the superior court concluded “[o]n the facts of this case” that Martinez’ receipt of the letter on June 7 was timely. Both parties then appealed.

The School District sent a copy of the letter to O’Malley School and kept another copy at its administrative offices, so that Martinez could pick it up on June 4. However, she picked it up on June 7. The School District thus made two different efforts to inform Martinez that she would not be retained. Neither of these efforts constituted timely “service,” enabling us to hold that the School District had served Martinez with notice on June 4. But, AS 14.20.140(b) does not require notice to be “served”; it requires the notice to be “delivered.” In law “delivery” may be constructive as well as actual, and in several situations the person to whom a thing is delivered need not actually have received it at the time the “delivery” takes place. Black’s Law Dictionary 385-86 (5th ed. 1979). We think the Legislature’s use of the term “delivery” forces us to examine the purposes behind the notice requirement. On examination, we agree with the superior court’s interpretation.

At the end of a school year a teacher may well assume that he or she will be retained. Notice of nonretention counters that assumption and enables the teacher to look for alternative employment. Therefore, the later the notice is delivered, the fewer the teacher’s job opportunities may be. To protect non-tenured instructors the Legislature has specified two methods by which employers may notify those teachers that will not be retained. Just as the superior court observed, we note that the sending of notice by registered mail does not ensure a teacher will receive notice on the last day of a school year. If a letter is mailed on the last day allowable under the statute it probably will not arrive until several days after the end of the school year. We see no reason for the Legislature to have required notices that are “delivered” to arrive earlier than notices that are mailed. Mailing of the notice on the last day of the school year constitutes substantial compliance with AS 14.20.140(b), even though actual notice of nonretention does not occur until after the last day of the school year. Accordingly, we hold that notice received on the day a registered letter probably would have arrived was, “on the facts of this case,” sufficient to fulfill the policies behind AS 14.20.140(b). Because notice thus satisfied AS 14.20.-140(b),³ we need not decide whether Martinez was a “teacher” entitled to the notice delivered to her.

AFFIRMED.

COMPTON, J., dissents.

1 . The letter read, in pertinent part:

Dear Ms. Martinez:

The Personnel Department recently received your 1981/82 performance evaluation and a memorandum dated April 28, 1982 from your principal. Based upon your unsatisfactory performance evaluation and the principal’s recommendation, we regret to inform you that your name has been removed from the Preferential Hire list for the 1982/83 school year.

Your file will be placed in the active application section of the Personnel Department and your name submitted to the Substitute Teacher Dispatch Office upon receipt of the enclosed ASD Forms 1215 and 1274.

Should you have questions, please call me. Sincerely,

-/s/-

Rita R. Strachan

Director for Personnel

2 . No one contends that Martinez was a tenured teacher, so AS 14.20.140(b), not .140(a), is the statute we must interpret.

3 . The notice Martinez received satisfactorily informed her that she would not be retained for the next school year.