315 Mass. 47 | Mass. | 1943
This is a petition for a writ of mandamus brought in the- Superior Court against the members of the school committee of the city of Quincy to compel them to restore the petitioner to the position of a teacher in the public schools of said city from which she was dismissed by action of the school committee. The case was referred to an auditor who made a report and was heard by a judge of the Superior Court upon the auditor’s report. The judge found the facts to be as stated in the auditor’s report and reported the case for the determination of this court. G. L. (Ter. Ed.) c. 231, § 111; c. 213, § 1B, as inserted by St. 1939, c. 257, § 1.
The petitioner in September, 1940, had served as a teacher in the public schools of the city of Quincy for more than three years, and consequently was serving at “discretion” within the meaning of G. L. (Ter. Ed.) c. 71, § 41. Provisions with respect to the dismissal of a teacher so serving are contained in G. L. (Ter. Ed.) c. 71, § 42, as appearing in St. 1934, c. 123. These provisions include the following: “The school committee may dismiss any teacher, but in every town except Boston no teacher . . . shall be dismissed unless by a two thirds vote of the whole committee. In every such town a teacher . . . employed at discretion únder the preceding section shall not be dismissed, except for inefficiency, incapacity, conduct unbecoming a teacher . . . insubordination or other good cause, nor unless at least thirty days, exclusive of customary vacation periods, prior to the meeting at which the vote is to be taken, he shall have been notified of such intended vote; nor unless, if he so requests, he shall have been furnished by the committee with a written charge or charges of the cause or causes for which his dismissal is proposed; nor unless, if he so requests, he has been given a hearing before the school committee which may be either public or private at the discretion of the school committee and at which he may be represented by counsel, present evidence and call witnesses
Material facts found by the judge are as follows:
“On September 26, 1940, the petitioner, pursuant to the provisions of G. L. c. 71, s. 42, as amended, requested the school committee to grant her a hearing with reference to any charges, and also requested specifications, which were furnished. Thereafter, on November 26, 1940, a hearing was held before five of the seven members of the school committee, at which time evidence was presented by the city solicitor for the city of Quincy, and by counsel for the petitioner. After the close of the evidence, arguments of counsel were heard by the five members of the school committee.
“On December 10, 1940, the entire committee, consisting of seven members, attended a meeting, the record of which set forth the following: ‘Pursuant to a vote of the school committee September 19, 1940, that a vote be taken on October 29, 1940, on the question of the removal of F. Gladys Perkins as teacher in the Quincy public schools for the following reasons: Insubordination and conduct unbecoming a teacher and failure to cooperate. And at a hearing granted to F. Gladys Perkins and held by agreement on November 26, 1940, at which hearing F. Gladys Perkins was represented by counsel, who presented evidence and called witnesses, and a recommendation having been received from the superintendent of schools in the premises, and the charges against F. Gladys Perkins having been substantiated, it was voted that F. Gladys Perkins be and she hereby is removed and dismissed as a teacher in the Quincy public schools. The roll call was as follows: Voting for dismissal, Mrs. Nichols, Messrs. Taylor, Prout, Flavin, Sutherland and Burgin. Voting present: Mr. Marini.’ Mr. Prout and Mr. Burgin, two of the seven members of the committee who voted for dismissal, were not present at the hearing on November 26, 1940, when evidence was taken and argument of counsel made. They did not hear any of the testimony, or see any
The fundamental question for decision is whether the dismissal of the petitioner was made in accordance with the statutory requirement that “no teacher . . . shall be dismissed unless by a two thirds vote of the . . . committee,” read in the light of other requirements of the statute, particularly the requirement for a hearing “before the school committee” of the nature described in the statute. The judge ruled “as matter of law these two members [Prout and Burgin] were not qualified to vote on the . . . dismissal, and . . . since their votes cannot be counted, there was not a two-thirds vote of the committee as required by law.” This ruling was right.
At the meeting of the school committee at which it was voted to dismiss the petitioner all the members of the committee were present — clearly a quorum of the committee. And at this meeting the vote to dismiss the petitioner was “a two thirds vote of the whole committee,” indeed a vote of more than two thirds thereof, since it was a vote of six members of a committee of seven members. But where, as here, a hearing was requested by the petitioner, such a hearing “before the school committee” of the nature described in the statute was a condition precedent to dismissal of the petitioner. Graves v. School Committee of Wellesley, 299 Mass. 80, 85. See also Farrell v. Mayor of Revere, 306 Mass. 221, 224-225; Sesnovich v. Board of Appeal of Boston, 313 Mass. 393, 396-398. And it was essential that a quorum of the committee be present at the hearing. Farrell v. Mayor of Revere, 306 Mass. 221, 224-225. Sesnovich v. Board of Appeal of Boston, 313 Mass. 393, 396-398. A quorum of the committee, however, was present at the hearing upon the charges against the petitioner. Ordinarily a majority of a
The crucial question is thus reached, whether the votes of the two members who did not participate in the hearing could rightly be counted in the “two thirds vote of the whole committee” required to dismiss the petitioner. Unless at least one of these votes could rightly be so counted — and there is no difference in thé facts as between these two members — there was not a “two thirds vote of the whole committee,” that is, a vote of five members of the committee. We think that it is a necessary implication from the provisions of the governing statute that the votes of these two members could not rightly be so counted.
The statute requires that there be a particular kind of hearing, a hearing at which the teacher “may be represented
The reading by a member of the school committee of the stenographic transcript of the evidence and arguments without attendance at the hearing, as already pointed out, is not an adequate substitute for such attendance for the purpose
We do not imply that under a statute or valid rule, different from the statute here involved, a reading of a stenographic report of evidence and arguments may not furnish a legally sufficient basis for a decision.
Since the dismissal of the petitioner from the position of a teacher in the public schools was illegal for the reason already stated, it is unnecessary to consider whether such dismissal was illegal for any other reason.
It follows that a writ of mandamus must issue command
So ordered.