9 Mass. App. Ct. 372 | Mass. App. Ct. | 1980
Bruce Bartolini, a tenured teacher of biology employed by the plaintiff at Keefe Regional Vocational School in Framingham, was dismissed from his employment on October 11, 1977, for conduct unbecoming a teacher. He had been employed by the plaintiff continuously from September, 1973, until his dismissal. His appeal to the Superior Court pursuant to G. L. c. 71, § 43A, resulted in his reinstatement. The plaintiff sought review of the action of the Superior Court by filing a complaint in the nature of certiorari in the Supreme Judicial Court, G. L. c. 249, § 4.
Bartolini requested a designation of the charges against him on August 12,1977. The plaintiff responded in compliance with G. L. c. 71, § 42, with the following specifications:
“ The cause or causes of the proposed dismissal are conduct unbecoming a teacher, more specifically, conduct of a nature which improperly utilized a student during school hours and upon school property for private gain as a result of which the student was required to perform an illegal act, said conduct not being in the best interest of the Keefe Regional Vocational School or of the students attending the said school, as well as for other good cause.”
The trial judge found that Bartolini repaired automobiles after school hours. He did auto body work consisting of sanding and painting cars. For a period of several years, Bartolini employed students in this pursuit after school hours. During February and March, 1977, he employed Norman C. Furbush on a part-time basis for a few days a week after school hours. Furbush was enrolled in the automotive program at the school, but he was not enrolled in any class taught by Bartolini. The judge found no school regulation which prohibited teachers from working part-time or from employing students after school hours.
Furbush and another student at the school, Robert Lau-giniger, went to Bartolini’s home in Framingham at 7:00 p.m. on March 30, 1977. The two boys and Bartolini drove to Hopkinton in an automobile belonging to Furbush’s father. The precise destination was the Wood Street Garage in which there was a truck, the property of Bartolini, to be
After school, Furbush and Lauginiger drove to the garage in Hopkinton, paid the bill, removed the front plate from the motor vehicle which had transported them to the garage, and placed it in the back window of the truck. Fur-bush drove the truck, and Lauginiger drove the automobile in the direction of Bartolini’s home in Framingham.
A police officer of the town of Ashland intercepted Fur-bush, gave him a citation for attaching plates illegally and for operating an unregistered and uninsured vehicle. On learning of Furbush’s encounter with the police, Bartolini went to the police station and unsuccessfully tried to resolve the problem. Bartolini provided Furbush with an attorney and, together with Furbush’s mother, accompanied him to court. The court cases were ultimately continued without a finding for a year upon the payment of court costs.
The judge ruled that the actions of Bartolini “did not involve the school nór was he under any duty or school regulation to report the matter to school authorities.”
The judge found that all the procedural safeguards of § 42 were given to Bartolini, namely, timely notice of the vote, the furnishing of written charges, the granting of a hearing at which he had the righfto counsel, and the rights to present evidence and call witnesses. The hearing was conducted on October 11, 1977. Bartolini was notified of the plaintiff’s action in dismissing him on October 12, 1977.
There are two issues presented in this case: (1) the nature of the judicial review of the school district committee’s action in dismissing Bartolini which is required by G. L. c. 71, § 43A; and (2) whether, on the facts found by the judge, the dismissal was justified.
1. General Laws c. 71, § 43A, appeared under two somewhat different forms during the period of time which is crucial in this case. When the underlying factual framework of this case was constructed in 1977, § 43A read in material part as follows: “The court shall advance the appeal for a speedy hearing and after such notice to the parties as it deems reasonable, it shall hear witnesses, review such action, and determine whether or not upon all the evidence such action was justifiable. If the court finds such action was justifiable, the action of the school committee shall be affirmed; otherwise, it shall be reversed and the appellant shall be reinstated to the position without loss of compensation. The decision of the court shall be final, except as to matters of law.” See St. 1975, c. 337 (1975 amendment).
When the trial of this action was begun in the Superior Court on March 27, 1978, the operative language of § 43A had been changed by St. 1977, c. 671, by striking the first
The plaintiff argues for the application of the 1975 amendment and the consequently limited meásure of judicial review. The argument is founded on the unsound predicate that the statutory change affected substance and not merely form. This argument simply does not wash. It is correct only to the extent that it recognizes the canon of statutory construction that “. . . statutes which are remedial or procedural should be deemed to apply retroactively to those pending cases which, on the effective date of the statute, have not yet gone beyond the procedural stage to which the statute pertains.” City Council of Waltham v. Vinciullo, 364 Mass. 624, 628 (1974). It would be difficult to contrive a subject more procedural than the boundaries of judicial review of actions of administrative bodies. Accordingly, the 1977 amendment is applicable. (Of passing interest is the fact that the plaintiff did not object when the judge announced that the proceeding would follow the 1977 amendment.)
2. The 1977 amendment obliges the judge to “hear the cause de novo, review such action, and determine whether or not upon all the evidence such action was justifiable.” As applied to the instant case, the judge was required to conduct a hearing anew in order to determine whether the action of the plaintiff was justifiable. This is manifestly a broader review than is mandated by G. L. c. 30A, § 14, and like judicial review statutes. Under § 43A, the judge has no agency findings before him because no findings are required. The evidence before the committee was not considered by the judge because it was not offered. Cf. MacKenzie v. School Comm. of Ipswich, 342 Mass. 612, 614-616 (1961).
The judge’s careful findings of fact are not clearly erroneous. Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). The plaintiff charged Bartolini in its specifications with using
In a word, § 43A provides that the decision of the court shall be final, except as to matters of law. The single justice ruled that there was no substantial error of law apparent on the record. We find no error of law. We order the appeal dismissed because the single justice did not enter a final judgment.
So ordered.