45 Mass. App. Ct. 23 | Mass. App. Ct. | 1998
After being notified that he would not be the men’s head basketball coach for the 1994-1995 season, the plaintiff, a high school physical education teacher with professional teacher status,
1. The relevant facts. The plaintiff has been a physical education teacher at Wayland High School since 1968 and has tenure in that position under G. L. c. 71, § 41.
Coaches for various school sports are appointed by the school committee for one-year terms for which they receive an annual stipend.
2. Discussion. General Laws c. 71, § 47A, as amended by St. 1993, c. 71, § 50, reads:
*25 “The superintendent may contract to employ athletic coaches ... for periods not in excess of three years. The provisions of section forty-one relative to tenure shall not apply to such athletic coaches, unless they are otherwise entitled to tenure.”
It is the plaintiff’s argument that because he is “otherwise entitled to tenure” as a physical education teacher, § 47A provides him with tenure in his additional position as head basketball coach. If the plaintiff is correct, then he cannot be removed from his coaching position without just cause and compliance with those procedures set out in G. L. c. 71, § 42, notwithstanding the fact that § 41 extends those protections only to teachers, school librarians, school adjustment counselors, school social workers, and school psychologists and makes no reference to athletic coaches. See note 2, supra.
The plaintiff’s argument conflicts with the legislative intent of § 47A, as recently discussed in School Comm. of Natick v. Education Assn. of Natick, 423 Mass. 34, 38-39 (1996). There the court stated that “by limiting coaching appointments to a maximum of three years, the Legislature intended to establish a fixed term of employment, readily terminable at its conclusion” and concluded that a “collective bargaining agreement which conferred just cause protection, and de facto tenure, on a public high school coach would conflict with the durational limitation of § 47A.” If a bargaining agreement purporting to confer de facto tenure on an athletic coach conflicts with the “durational limitation” of § 47A, so also does the plaintiff’s claim that he acquired de jure tenure by reason of his professional teacher status as a physical education teacher plus twenty years’ service in his coaching position. In either situation, the legislative intent in imposing a durational limitation on coaching appointments is frustrated.
We think § 47A a clear expression of a legislative intent that no person appointed as a coach for three, or even more, consecutive years shall thereby attain tenure protection in that position in the same way a person acquires tenure status as a teacher under § 41, that is, after serving in a public school of a school district for three consecutive years. However, the fact that a person cannot attain tenure as a coach has no effect on any professional teacher status to which a teacher is otherwise entitled under § 41. Were the defendant ever to seek dismissal of the plaintiff from his position as a physical education teacher,
In response to the report, we answer that the plaintiff was not entitled to tenure protection in his position as head basketball coach and that it is, therefore, unnecessary to consider whether he was required to arbitrate the issue of his removal. See School Comm. of Natick v. Education Assn. of Natick, 423 Mass. at 40-41.
On June 18, 1993, the Governor signed the Education Reform Act of 1993, St. 1993, c. 71, into law. The act substituted the term “professional teacher status” for the word “tenure.” We use those terms synonymously throughout this opinion.
The first paragraph of § 41, as appearing in St. 1993, c. 71, § 43, provides in part: “For the purposes of this section, a teacher, school librarian, school adjustment counsellor, or school psychologist who has served in the public schools of a school district for three consecutive years shall be considered a teacher, and shall be entitled to professional teacher status as provided in section forty-two.” A 1995 amendment, St. 1995, c. 209, § 3, added “school social worker” following “counsellor.”
Section 42, appearing in St. 1993, c. 71, § 44, provides that a teacher with professional teacher status cannot be dismissed without notice and just cause and may seek review of any dismissal by filing a petition for arbitration. .
The school committee has never granted professional teacher status to anyone in their capacity as a coach.
Our reading of § 47A is consistent with an almost identical provision in § 41 for teachers with professional teacher status who receive appointments to certain administrative positions. That section provides, in part: “Except as provided herein, section forty-two shall not apply to school principals, assistant principals or department heads, although nothing in this section shall deny to any principal, assistant principal or department head any professional teacher status to which he shall otherwise be entitled” (emphasis supplied). G. L. c. 71, § 41, second par., as appearing in St. 1994, c. 346. Thus, while a principal, assistant principal or department head may be dismissed from those positions only in accordance with the procedures detailed in § 41, any such dismissal would have no effect on that person’s professional teacher status as a teacher.