Superintendent-Director of Assabet Valley Regional School District v. Speicher , 469 Mass. 633 ( 2014 )

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SJC-11563
SUPERINTENDENT-DIRECTOR OF ASSABET VALLEY REGIONAL VOCATIONAL
SCHOOL DISTRICT vs. ANN MARIE SPEICHER.
Suffolk. May 5, 2014. - September 11, 2014.
Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.
Arbitration, Authority of arbitrator, Judicial review, Award,
School committee. Education Reform Act. Statute,
Construction. School and School Committee, Arbitration,
Suspension from employment. Public Employment, Suspension.
Civil action commenced in the Superior Court Department on
May 18, 2011.
The case was heard by Paul E. Troy, J., on motions for
judgment on the pleadings.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Tim D. Norris for the plaintiff.
Sheilah F. McCarthy for the defendant.
Will Evans & Quesiyah S. Ali, for Massachusetts Teachers
Association, amicus curiae, submitted a brief.
SPINA, J. In this case we are asked to decide whether an
arbitrator exceeded his authority by reviewing the merits of a
twenty-day suspension of a school librarian having professional
2
teacher status. The librarian had been suspended for "conduct
unbecoming" the librarian, pursuant to G. L. c. 71, § 42D. The
arbitrator applied a just cause standard of review and
overturned the suspension on the ground that the school district
failed to meet its burden of proof. The school district filed
an action to vacate the arbitrator's award under G. L. c. 150C,
§ 11, and for declaratory relief under G. L. c. 231A. A judge
in the Superior Court denied the school district's motion for
judgment on the pleadings, and allowed the librarian's cross-
motion for judgment on the pleadings, thereby confirming the
arbitrator's award. The school district appealed, and we
transferred the case from the Appeals Court on our own motion.
We hold that the arbitrator did not exceed his authority by
reviewing the merits of the suspension. We further hold that
the proper standard of review is whether the district sustained
its burden of proving by a preponderance of the evidence the
particular reason cited for the suspension. We affirm the
judgment of the Superior Court.1
1. Background. The librarian, Ann Marie Speicher, had
been employed as a school librarian for at least three
consecutive school years by the Assabet Valley Regional School
District (district) as of October 29, 2009. As such, she was
considered a "teacher" under G. L. c. 71, § 41, and entitled to
1
We acknowledge the amicus brief filed by the Massachusetts
Teachers Association in support of Ann Marie Speicher.
3
professional teacher status under G. L. c. 71 § 42. A district
employee with professional teacher status may seek review of a
suspension by following the arbitration procedures set forth in
§ 42. See G. L. c. 71, § 42D.
The district superintendent, based on an investigation
conducted by Speicher's principal, suspended Speicher without
pay for twenty days for conduct deemed by the superintendent to
be unbecoming a "teacher." The superintendent determined that
Speicher had vouched for a student's presence in the library for
an amount of time in excess of the time the student actually was
in the library -- time that otherwise would have constituted the
student's unexcused absence from a classroom. Before being
suspended, Speicher was afforded all the procedural steps and
safeguards set forth in G. L. c. 71, § 42D, including a
predisciplinary meeting with the superintendent.
Speicher sought review of the suspension by an arbitrator,
pursuant to § 42D.2 The district maintained at arbitration that
the scope of arbitration was limited to the question whether
Speicher received the procedural due process safeguards set
forth in § 42D, and not a review of the merits of her
suspension. Speicher, in contrast, contended that she was
entitled to a review of the merits of the suspension decision,
2
The arbitration proceeded pursuant to statute, namely,
G. L. c. 71, § 42D, and not pursuant to a collective bargaining
agreement.
4
and that the standard of review should be "just cause." The
arbitrator conducted an evidentiary hearing, and he considered
the merits of the suspension. He made findings of fact and
rulings of law. He applied a "just cause" standard and
concluded that the district had failed to sustain its burden of
proof as to whether Speicher had in fact vouched for the
student, as alleged. He determined that Speicher's twenty-day
suspension violated § 42D and must be rescinded, that Speicher
should be made whole for all lost wages and benefits resulting
from the suspension, and that all references to the suspension
should be removed from her personnel file. In confirming the
arbitrator's award, the Superior Court judge concluded that the
arbitrator was not shown to have exceeded his authority by
reviewing the merits of the suspension, reasoning that nothing
in § 42D prohibited the arbitrator from reviewing the
superintendent's decision.
2. Statutory framework. General Laws c. 71, § 42D, the
teacher suspension statute, states:
"The superintendent may suspend any employee of the
school district subject to the provisions of this section.
The principal of a school may suspend any teacher or other
employee assigned to the school subject to the provisions
of this section. Any employee shall have seven days
written notice of the intent to suspend and the grounds
upon which the suspension is to be imposed; provided,
however, that the superintendent may, for good cause,
require the immediate suspension of any employee, in which
case the employee shall receive written notice of the
immediate suspension and the cause therefor at the time the
suspension is imposed. The employee shall be entitled (i)
5
to review the decision to suspend with the superintendent
or principal if said decision to suspend was made by the
principal; (ii) to be represented by counsel in such
meetings; [and](iii) to provide information pertinent to
the decision and to the employee's status.
"No teacher or other employee shall be suspended for a
period exceeding one month, except with the consent of the
teacher or other employee, and no teacher or other employee
shall receive compensation for any period of lawful
suspension.
"No teacher shall be interrogated prior to any notice
given to him relative to the suspension unless the teacher
or other employee is notified of his right to be
represented by counsel during any such investigation. A
suspended teacher or other employee may seek review of the
suspension by following the arbitration procedures set
forth in [§ 42, the teacher dismissal statute]. Nothing in
this section shall be construed as limiting any provision
of a collective bargaining agreement with respect to
suspension of teachers or other employees." (Emphasis
added.)
General Laws c. 71, § 42, the teacher dismissal statute,
states:
"A principal may dismiss or demote any teacher or
other person assigned full-time to the school, subject to
the review and approval of the superintendent; and subject
to the provisions of this section, the superintendent may
dismiss any employee of the school district. . . .
"A teacher with professional teacher status, pursuant
to [§ 41], shall not be dismissed except for inefficiency,
incompetency, incapacity, conduct unbecoming a teacher,
insubordination or failure on the part of the teacher to
satisfy teacher performance standards developed pursuant to
[§ 38] of this chapter or other just cause.
"A teacher with professional teacher status may seek
review of a dismissal decision within thirty days after
receiving notice of his dismissal by filing a petition for
arbitration with the commissioner. . . .
"At the arbitral hearing, the teacher and the school
district may be represented by an attorney or other
6
representative, present evidence, and call witnesses and
the school district shall have the burden of proof. In
determining whether the district has proven grounds for
dismissal consistent with this section, the arbitrator
shall consider the best interests of the pupils in the
district and the need for elevation of performance
standards. . . .
"The arbitral decision shall be subject to judicial
review as provided in [c. 150C]." (Emphases added.)
Sections 42 and 42D as quoted above reflect amendments made
by the Education Reform Act of 1993 (act) to provide for
arbitration of dismissals and suspensions, among the many other
features of the act. See St. 1993, c. 71, §§ 44, 47.
3. Discussion. The district contends that the plain
language of G. L. c. 71, § 42D, which contains no standard of
review, contemplates only arbitral review of the procedures
followed by the superintendent in cases of teacher suspension,
and not arbitral review of the merits of the suspension.
Speicher argues that notwithstanding the absence of a standard
of review in § 42D, the language of that statute that affords
suspended employees "review of the suspension" means that she
was entitled to arbitral review of the merits of her suspension.
Speicher further contends that the arbitrator correctly employed
a "just cause" standard of review because it was reasonable to
do so where § 42D is silent as to the standard of review.
"Absent proof of one of the grounds specified in G. L.
c. 150C, § 11, a reviewing court is 'strictly bound by the
arbitrator's factual findings and conclusions of law, even if
7
they are in error.'" School Comm. of Lowell v. Robishaw, 456
Mass. 653, 660-661 (2010), quoting School Comm. of Pittsfield v.
United Educators of Pittsfield, 438 Mass. 753, 758 (2003). One
such ground for vacating an award is that the arbitrator
exceeded his authority. G. L. c. 150C, § 11 (a) (3). Where, as
here, "the source of authority to arbitrate . . . is a statute,
and not an agreement, judicial review of an arbitrator's
interpretation of the meaning of the authorizing statute . . .
and the scope of his or her authority thereunder is broader and
less deferential than in cases involving judicial review of an
arbitrator's decision relating to similar issues arising out of
an agreement of the parties." Atwater v. Commissioner of Educ.,
460 Mass. 844, 856-857 (2011). See School Dist. of Beverly v.
Geller, 435 Mass. 223, 229 (2001) (Cordy, J., concurring).
We begin our analysis with perhaps two of the most familiar
rules of statutory construction. First, "a statute must be
interpreted according to the intent of the Legislature
ascertained from all its words construed by the ordinary and
approved usage of the language, considered in connection with
the cause of its enactment, the mischief or imperfection to be
remedied and the main object to be accomplished, to the end that
the purposes of its frames may be effectuated," Registrar of
Motor Vehicles v. Board of Appeal on Motor Vehicle Liab.
Policies & Bonds, 382 Mass. 580, 585 (1981), quoting Board of
8
Educ. v. Assessor of Worcester, 368 Mass. 511, 513 (1975); and
second, "[t]he statutory language itself is the principal source
of insight into the legislative purpose." Registrar of Motor
Vehicles v. Board of Appeal on Motor Vehicle Liab. Policies &
Bonds, supra, citing Hoffman v. Howmedica, Inc., 373 Mass. 32,
37 (1977).
Turning to the statute, § 42D provides that any employee
who has been suspended thereunder may seek "review of the
suspension." The statute further specifies that the form of
review is "arbitration," and the "procedures" for seeking review
are "set forth in [§ 42]." Section 42 contains the phrase
"review of a dismissal decision," and no one suggests that a
"review" under § 42 means anything but full arbitral review of
the merits of the dismissal. The word "review" (by arbitration)
was added to both §§ 42 and 42D by the act. Where the word
"review" appears in these related sections of the same statutory
enactment, it should be given the same meaning in both sections.
See Hallett v. Contributory Retirement Appeal Bd., 431 Mass. 66,
69 (2000) ("Where words in a statute are used in one part of a
statute in a definite sense, they should be given the same
meaning in another part of the statute"). In this context
"review of the suspension" means review of the decision to
suspend. Stated otherwise, and contrary to the district's
9
argument, it means review of the merits of the suspension as
well as the procedures followed to reach the decision.
Moreover, we said in Atwater v. Commissioner of Educ. that
"the changes to the dismissal process for teachers with
professional teacher status reflect a legislative judgment that
it was in the public interest to 'depoliticize[e] and
streamlin[e] the dismissal process by requiring that contested
dismissals proceed directly to arbitration.'" 460 Mass. at 856,
quoting Geller, 435 Mass. at 225 n.1 (Cordy, J., concurring).
The same reasoning applies to suspensions, particularly where
dismissals and suspensions were addressed at the same time by
the Legislature. We note that arbitration of the merits of a
suspension would further the legislative goal of depoliticizing
the disciplinary process, whereas disallowing arbitration of a
suspension would have the opposite effect.
Finally, although not as consequential as dismissals,
suspensions are nonetheless serious enough to warrant review, as
they can have significant future consequences. Here, in
addition to her twenty-day suspension, Speicher was warned that
any further misconduct would result in dismissal. For these
reasons, we conclude that the arbitrator acted within his
authority when he considered the merits of Speicher's
suspension.
10
We next turn to the standard of review. The standard of
review is a question of law. If the arbitrator applied an
incorrect standard of review, that error generally is not
reviewable. See School Comm. of Lowell v. Robishaw, 456 Mass.
at 660. However, because the issue of the correct standard of
review has been briefed fully by parties, is a matter of public
importance, and is likely to recur, we address it. See Smith v.
McDonald, 458 Mass. 540, 543 n.4 (2010). The parties have
observed correctly that § 42D does not contain a standard of
review. However, § 42D has incorporated by specific reference
those portions of § 42 that govern the arbitral procedure for
reviewing dismissals of school district employees. This is an
appropriate legislative procedure. See 1A N.J. Singer & J.D.
Shambie Singer, Statutes and Statutory Construction § 22:25 (7th
ed. 2012); 2B Singer & Singer, supra at §§ 51:7, 51:8. It is
not without complication. "A statute of specific reference
incorporates provisions as they exist at the time of adoption,
without subsequent amendments, unless a legislature has
expressly or by strong implication shown its intention to
incorporate subsequent amendments with the statute. In the
absence of such intention, subsequent amendment of the referred
statute has no effect on the reference statute." 2B Singer &
Singer, supra at § 51:8 (footnotes omitted). See Salem &
Beverly Water Supply Bd. v. Commissioner of Revenue, 26 Mass.
11App. Ct. 74, 77-78 (1988). Here, the arbitral procedure of § 42
was specifically incorporated by reference in § 42D by St. 1993,
c. 71, § 47. Section 42 has since been amended, but the
amendment does not relate to the subject matter of this appeal,
and the amendment does not take effect until September 1, 2016.
See St. 2012, c. 131, § 3.
The arbitral procedures of § 42 in turn incorporate the
standard of review set forth within that section, which places
the burden of proof on the school district. Section 42 further
provides that when determining whether the district has met its
burden of proof, the arbitrator must focus upon the "grounds for
3
dismissal consistent with this section." Thus, the permissible
grounds for dismissal under § 42 also are incorporated by
reference into the arbitral procedures set forth in § 42, and
they apply to suspensions under § 42D. The grounds for
discipline enumerated in § 42, are "inefficiency, incompetency,
incapacity, conduct unbecoming a teacher, insubordination or
failure on the part of the teacher to satisfy teacher
performance standards developed pursuant to [§ 38] of this
3
Section 42, fifth par., states that, "[i]n determining
whether the district has proven grounds for dismissal consistent
with this section, the arbitrator shall consider the best
interests of the pupils in the district and the need for
elevation of performance standards." Arbitrators also should
consider these factors when reviewing suspensions pursuant to
§ 42D.
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chapter or other just cause" (emphases added).4 In the context
of § 42, the enumerated grounds for discipline constitute just
cause for discipline, in addition to "other just cause." See
Geller, 435 Mass. at 233 (Cordy, J., concurring). Thus, when
reviewing a suspension, the statute requires an arbitrator to
determine (1) whether the district sustained its burden of
proving that the teacher committed the conduct alleged, and (2)
whether the conduct alleged is serious enough to meet an
enumerated ground providing just cause for suspension, i.e., not
trivial misconduct. See School Comm. of Lexington v. Zagaeski,
469 Mass. 104, 117 (2014), citing Geller, 435 Mass. at 231 n.7
(Cordy, J., concurring). The statute does not, however, empower
an arbitrator to substitute his judgment for that of the
superintendent as to the level of discipline that is warranted,
according to some generalized notion of "just cause." See
Zagaeski, supra at 115-116; Geller, supra at 231, 234 (Cordy,
J., concurring).
Here, the arbitrator did not act in excess of his authority
by reviewing the merits of Speicher's suspension and concluding
that the district had not met its burden of proving the alleged
just cause for suspension.
Judgment affirmed.
4
Although these grounds apply to suspensions as well as
dismissals, the seriousness or egregiousness of the misconduct
or omission necessarily will affect the nature and degree of the
discipline.