Sweeney v. School Committee of Revere

Braley, J. A majority of the respondents, who at the time comprised the school committee of the city of Revere consisting of seven members, passed on May 22, 1923, the following vote, “ That the offices of Assistant Principal in' the Senior High School and Principal in the Junior High School be abolished and that Mr. Sweeney and Mr. Pollard be retained at $2,500 each as teachers and that the Superintendent of Schools be given authority to assign them to their duties.” The petitioners, to whom the secretary of the committee sent copies of this vote, were teachers in the [528] public schools of the city. The petitioner Sweeney had been duly elected February 15, 1914, as principal of the Abraham Lincoln School, a grammar school, and since March 1, 1914, to the date of the vote, had performed the duties of principal of that school as well as the duties of principal of the Junior High School, receiving for his services an annual salary of $2,762.50. The petitioner Pollard was duly elected a teacher in June, 1917, and from September, 1921, to the date of the vote had continuously performed the duties of assistant principal in the senior high school. We discover no reversible error in the admission of evidence. It is shown by the record, although denied by the respondents, that at a meeting of the committee on May 9, 1923, it was voted that Pollard’s salary for the years 1923 and 1924 had been fixed at $2,600, and a copy of that vote was duly sent to and received by him. If the votes stand, it is apparent that the annual salary of Sweeney would be at the rate of $2,500, while the salary of Pollard would also be $2,500. The auditor reports in substance that the superintendent of schools had made no recommendation, that these positions should be abolished, or that the petitioners should be dismissed from their respective positions; nor does it appear that any economic reasons, nor want of competency, and efficiency of the petitioners actuated a majority of the committee by whom the vote on its face appears to have been passed without any notice by the committee of their intended action being given to either petitioner. It is found, that the abolition of the position of assistant principal of the senior high school was not essential to the proposed consolidation of the senior and junior high schools under one head. And that under such consolidation the administrative duties of the principal of the combined schools would be so increased, that the position of assistant principal at least would be as essential as it was before such reorganization. It is provided by G. L. c. 71, §§ 41, 42, 43, as follows: “ Section 41. Every school committee, except in Boston, in electing a teacher or superintendent, who has served in its public schools for the three previous consecutive school years, other than a union or district superintendent, shall [529] employ him to serve at its discretion; but any school committee may elect a teacher who has served in its schools for not less than one school year to serve at such discretion. “ Section 42. The school committee may dismiss any teacher, but in every town except Boston no teacher or superintendent, other than a union or district superintendent, shall be dismissed unless by a two thirds vote of the whole committee. In every such town a teacher or a superintendent employed at discretion under the preceding section shall not be dismissed unless at least thirty days prior to the meeting, exclusive of customary vacation periods, 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 given a statement by the committee of the reasons for which his dismissal is proposed; nor unless, in the case of a teacher, the superintendent shall have given the committee his recommendations thereon. Neither this nor the preceding section shall affect the right of a committee to suspend a teacher or superintendent for unbecoming conduct, or to dismiss a teacher whenever an actual decrease in the number of pupils in the schools of the town render such action advisable. No teacher or superintendent who has been lawfully dismissed shall receive compensation for services rendered thereafter, or for any period of lawful suspension followed by dismissal. “ Section 43. The salary of no teacher employed in any town except Boston to serve at discretion shall be reduced without his consent except by a general salary revision affecting equally all teachers of the same salary grade in the town. The salary of no superintendent so employed shall be reduced without his consent until at least one year after the committee has so voted.” A full perusal of the record clearly shows, that at least Murray and Reilly, two of the members, in voting for the changes were in the case of Pollard actuated by feelings of political resentment and ill-will more or less openly expressed and exhibited. See G. L. c. 71, § 39. The votes.of these respondents were not cast upon the merits of the question, whether the position held by Pollard should be abolished, [530] in the interest of the public welfare, but were cast as a convenient and effective means of displacing him from his position because of his political views, which do not appear at any time to have been improperly expressed. The full committee, as we have said, consisted of seven members, and, two members who opposed the change having voted in the negative, the vote failed of the necessary two thirds unless the votes of Murray and Reilly were counted. “ We do not consider that we are required to allow such a board to nullify the plain and salutary provisions of this statute by simply covering their unlawful act with a virtuous name. There is a real and fundamental distinction between the laudable abolition of an unnecessary position,” and the elimination of a faithful teacher, “ in violation of the rights secured to him by statute; and the latter action can neither be concealed nor protected by a pretense, that it was the exercise of the former right.” Garvey v. Lowell, 199 Mass. 47, 49, 50. The committee, moreover, to whose attention the statute had been expressly called by one of the members before this vote was taken, could not do indirectly that which they could not do directly. The petitioner Pollard as assistant principal in the senior high school under the statute could not be dismissed unless he received at least thirty days notice prior to the meeting at which the intended vote was to be taken. The real purpose of the proceedings having been as previously described, the committee could not, by the mere phraseology used, evade the statute and discharge him without an opportunity to be heard. But as to the petitioner Sweeney, the auditor reports, that the petitioner “ has not satisfied me that personal hostility . . . was the controlling factor in the action of these three respondents.” And he also finds that “ the vote of May 22 did not purport to ‘ get rid of ’ the petitioner, nor was that its effect. It did purport to change the duties to which he was assigned and to reduce his salary and such in my opinion was its effect. I cannot infer that it was a pretence and device to do something which it did not purport to do. ... I do find that hostility toward the petitioner on the part of these three respondents [Murray, Reilly and [531] Noone] existed, and although I am not satisfied that it was their controlling motive, I am constrained to find that it had some influence on their action.” It is manifest on these findings that Murray and Reilly were not actuated or controlled by a feeling of personal hostility or ill will toward this petitioner, and their votes in his case cannot be impeached. The effect of this vote upon the salary of Sweeney is not within G. L. c. 71, § 43, because he was the only person of his class. The result is, that in Pollard’s case a writ of mandamus with costs is to issue, reinstating him in his former position as of May 22, 1923. Duffey v. School Committee of Hopkinton, 236 Mass. 5. But in Sweeney’s case the petition must be dismissed. So ordered. ■