Wright v. Superintending Sch. Com., City of Portland ( 1975 )

POMEROY, Justice.

Appellant was a tenured teacher in the public school system of the City of Portland, having had 12 years service. At all times material hereto he was also a federally licensed gunsmith and the holder of a concealed weapons permit.

It is the fact he was attempting to perform the functions of a gunsmith during the same time he was charged with performing the duties of a teacher that brought this law suit into being.

This appeal is from the denial of a complaint filed in the Superior Court pursuant to the provisions of Rule 80B, M.R.Civ.P., which attacks the action of the Superintending School Committee of the City of Portland in dismissing appellant from his position as a teacher because of the Committee’s conclusion he was “unfit” to teach in the Portland school system.

Purported authority for the Committee’s action is Title 20 M.R.S.A. 473(4) which reads in material part:

“After investigation, due notice of hearing, and hearing thereon, they shall dismiss any teacher, although having the requisite certificate, who proves unfit to teach or whose service they deem unprofitable to the school; . . ..”

The Justice below concluded there was no contested issue as to the facts. Rather he saw the sole issue as “whether the facts justify a finding of ‘unfitness’ and the punishment of dismissal.”

To use his words,

" . . . the question is whether the Court, under these circumstances can second-guess the statutorily and constitutionally charged Superintending School Committee in the regular exercise of the prerogatives vested in it under the laws of this State. In other words, can the courts substitute their judgment for that of the Committee where there is no question as to the facts found, no question of due process, no question of the regularity of the proceedings, and the only issue is whether the Committee in the particular circumstances of the case, used poor judgment or reacted in excess of the necessities of the occasion.”

He then proceeded to rule:

“So under these circumstances where ‘fitness’ is a word of such broad meaning, the determination of ‘unfitness’ is herein limited, cannot be said to be clearly and manifestly wrong and the School Committee is entitled to have its decision upheld in the absence of manifest error.”

He then directed the entry of judgment for the defendants. Such judgment was entered. Appeal therefrom was seasonably taken.

We sustain the appeal.

We do not agree with the Justice below that the issue before him was as he envisioned it to be.

It is true, as the Justice below said, there is no claim of due process violations in the proceedings before the School Committee¹ and there is no question as to the correctness of the facts found.

However, having found those facts, the Board in concluding that “unfitness” within the meaning of 20 M.R.S.A. 473(4) was demonstrated, creates a question of law erroneously resolved below.

The factual setting of this dispute may be summarized briefly as follows :

January 11, 1972, was an extremely cold day in Portland. Appellant was suffering the lingering effects of a bout with pneumonia. Despite the weather he felt obliged to go to work at the Lincoln Junior High School in Portland, and teach his classes. For a long time prior to this date appellant had made gun repairs for a Portland retail store. Quite regularly, three times each week after school hours, he had gone to the store to pick up those guns which were to be repaired by him, and taken them to his home. After the repairs had been made he returned them to the store.

It had long been his habit on those days to carry a revolver for his own personal protection. That he was legally authorized to do so is not in dispute.

On the morning in question appellant had a revolver and ammunition in separate pockets of a ski jacket which he wore over his suit as protection against the extremely cold weather. It was not until he hung the jacket in a small alcove in the classroom in which he taught that he realized the presence of the gun and shells. Debating with himself as to whether to leave them in the jacket or remove the gun and return it to his car, he decided to leave things as they were, believing

“it was safer there than in my car . because in the car it had access to being stolen and I felt that possibly in the school it had a better chance of not being stolen . . . my door locks had been frozen . . . and I had not been able to lock my car.”

Although plaintiff checked the jacket during his morning break, sometime just before the close of school that afternoon he discovered that the gun and ammunition were missing. He immediately reported the theft to the School Principal and the police. The following morning in an effort to recover the items himself, appellant announced to his classes that an extremely valuable gun had been taken from his jacket, that it was registered and unsaleable and that a $10.00 bill would be left in a desk drawer in exchange for the weapon, with no questions asked. In this manner the gun was returned by a person or persons unknown. The ammunition was never found.

No claim is made that the appellant lacked sufficient educational training or ability, or that he had been guilty of any moral impropriety or that he had ever, prior to this instance, been the subject of disciplinary proceedings.

In determining the legal correctness of the action taken by the School Committee, and the Justice below in upholding same, we must start with the premise that we are dealing with a tenured teacher who had completed 12 years of satisfactory service/ as a teacher.

The Superintending School Committee characterized the appellant’s conduct in leaving the revolver in his jacket pocket without making arrangements for its security or apprising teachers using the classroom of its presence as “a grave lack of judgment on the part of Mr. Wright . ” With that conclusion we feel there is little room for disagreement.

The issue then becomes, is it error of law, as a misconception of the meaning of the concept “unfit to teach” in 20 M.R.S.A. 473(4), for a superintending school committee to dismiss a tenured teacher as “unfit to teach” on the basis of a single isolated instance which is the result of “a grave lack of judgment” involving neither moral misconduct, lack of educational training nor ability to teach.

The Justice below in sustaining the School Board’s action wrote:

“The fitness of a teacher to teach in any particular school system involves his adaptability to the needs of that school system and that particular segment of society.”

While characterizing the action of the School Committee as “drastic in the extreme,” “an excessive exercise of power” and “an over-reaction” stimulated by a current hysteria relating to the carrying of firearms, the Justice nevertheless found such action to be “within the scope of [the Committee’s] constituted authority.” We must disagree.

We do not suggest that a school board lacks discretion to determine, upon taking into account the special attitudes, problems, and needs of the community, whether or not a teacher is unfit to be employed in that particular school system. However, we do not believe it was the intent of the Legislature that a school board have the power to dismiss a tenured teacher in order to calm a fear of its constituency, absent any evidence that the character or notoriety of the teacher’s conduct adversely affects his service to the school.

The subsection of the statute under which the Superintending School Committee purported to act directs the School Committee to “dismiss any teacher, although having the requisite certificate, who proves unfit to teach or whose service they deem unprofitable to the school; . . . ."

In Hopkins v. Bucksport, 119 Me. 437, 111 A. 734 (1920), this Court had occasion to discuss the meaning of the above-quoted words in the statute. The Hopkins Court began its discussion by saying

“The authority given to the committee, to vacate a contract, being an authority given to those who represent one party only, must be strictly pursued according to the provisions of the statute, to have that effect. Searsmont v. Farwell, 3 Me. 450, 453.”

They then continued:

“The statute in question authorizes the dismissal of a teacher upon two grounds: Unfitness to teach and failure of practical success in the work of the school, rendering the teacher’s services unprofitable to the school. It is evident that these causes may run into each other; yet they are substantially distinct. Unfitness to teach, including in that term moral and temperamental unfitness as well as lack of educational training and ability, may be apparent either before or after the actual work of the school has begun; but failure of practical success in the work of the school can only become apparent after the work has begun. The clause, ‘or whose services they deem unprofitable to the school¡ is first found in the Revised Statutes of 1841, C. 17, § 41, Par. 5, in the form, ‘or whose services are believed by them to be unprofitable to such school.’ This cause of dismissal was evidently introduced into the statute, to cover cases frequently arising where from some cause it is apparent, after the school has begun, that the teacher’s usefulness has become impaired, and that the good of the school requires the dismissal. Such action in vacating a contract can only be justified as for the good of the school, and should only be taken after notice and ‘candid’ investigation. R.S.1841, C. 17, § 41, Par. 5.” 119 Me. 437, 440, 441, 111 A. 734, 735, 736.

In Hopkins, a teacher of seventeen years experience was discharged before the opening of the school year because

“her services in the judgment of said committee would be unprofitable to said school on account of her admitted associations with a German alien enemy of the United States of America, under suspicion and under investigation at this time by the government.” 119 Me. 437, 439, 111 A. 734, 735.

The Court found the action of the School Committee to be improper on the grounds that

1) the charge of unprofitability to the school could not be substantiated until after the school year had begun when the teacher’s “practical success in the work of the school” could more properly be evaluated; and

2) notice to the teacher was insufficient to apprise her of the grounds on which her dismissal was sought.

While Hopkins is the only Maine case which augments the meaning of 20 M.R.S.A. 473(4), there is a wealth of case law from other jurisdictions which construe similar statutory language.

In the context of child custody cases, the word “unfit,” as it is used in statutes authorizing the termination of parental rights, consistently has been held to mean “unsuitable, incompetent, or not adapted for a particular service.” Armentrout v. Jones, 207 Kan. 366, 485 P.2d 183 (1971); Richards v. Forrest, 278 Mass. 547, 552, 180 N.E. 508 (1932); Bottoms v. Carlz, 310 Mass. 29, 36 N.E.2d 379 (1941).

A similar qualification of comptency or suitability for the particular job has been engrafted on that term in cases involving unfitness for the practice of law (In re Gorsuch, 76 S.D. 191, 75 N.W.2d 644 (1956)), unfitness for police duty (Metcalf v. McAdoo, 48 Misc. 420, 95 N.Y.S. 511 (1905)), unfitness for assuming the duties of an executor (McLendon v. McLendon, 96 Ga.App. 197, 99 S.E.2d 489 (1957)), and unfitness for the office of sheriff (State v. Latham, 174 Ala. 281, 61 So. 351 (1910)).

Many courts having occasion to discuss whether or not certain conduct constitutes “moral unfitness” in a teacher, have suggested that the misconduct must in some way impair the teacher-student relationship. See, e. g., Superintendent of Common Schools v. Taylor, 105 Ky. 387, 49 S.W. 38 (1899), (giving assistance on a single occasion to someone taking a teacher’s qualification examination held to be conduct not authorizing revocation of a certificate under a statute requiring that the teacher be found “incompetent, inefficient, immoral or otherwise unworthy to be a teacher”) ; Browne v. Gear, 21 Wash. 147, 57 P. 359 (1899), (irregularities in connection with the taking of a teacher’s examination held to be insufficient cause for revocation of certificate); and dictum in Bowman v. Ray, 118 Ky. 110, 80 S.W. 516 (1904), (intoxication in public at a time too remote to affect a teacher’s “moral character or competency” at the time of the revocation of his certificate, would be insufficient to authorize revocation).

Where a teacher had admitted to a week’s non-criminal homosexual relationship with another teacher, the Court refused to sustain the revocation of his certificate where there was inadequate evidence that such conduct adversely affected his teaching ability or that the publicity surrounding the incident might impair the teaching process. (Morrison v. State Board of Education, 1 Cal.3d 214, 82 Cal.Rptr. 175, 461 P.2d 375 (1969)).

In Morrison, the Court reaffirmed prior California decisions stressing that in determining whether certain conduct constituted “unprofessional conduct” consideration must be given to whether or not such conduct has any ascertainable deleterious effect on the quality of the teacher’s professional performance. Whatever else language like “immoral conduct” or “unprofessional conduct” may mean to many people, the Court observed, when used in a statute authorizing disciplinary action, the conduct of the teacher must be evaluated in terms of its effect on the welfare of the students, the protection of whom is the concern of the statute. Without the judicial restraint of a requirement that there exist a rational connection between the infringement of the teacher’s interest in pursing his profession, and that of the legislative objective in protecting the school community, such broad language would “endow the employing agency with the power to dismiss any employee whose personal, private conduct incurred its disapproval.” 461 P.2d at 382.

In a vigorous dissent to the majority holding in Beilan v. Board of Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958), that a teacher’s dismissal for refusing to answer a School Superintendent’s questions relating to his Communistic affiliations and activities did not violate due process, Justice Douglas, joined by Justice Black, said:

“The fitness of a teacher for her job turns on her devotion to that priesthood, her education, and her performance in the library, in the laboratory, and the classroom, not on her political beliefs.” 357 U.S. 399, 415, 78 S.Ct. 1317, 1327.

The Justice then went on to distinguish the situation in which it could be shown that the teacher was organizing a Communist cell in the schoolhouse. Such a teacher, he said, “would plainly be unfit for his job.” 357 U.S. 399, 416, 78 S.Ct. 1317, 1327.

A lack of fitness to discharge the required duties has been equated with “incompetency.” Black’s Law Dictionary, 3rd ed., p. 945; 1 Bouvier’s Law Dictionary, Rawle’s Third Revision, p. 1528; Random House Dictionary of the English Language, p. 1434.

While a lack of that knowledge necessary to competent instruction, and the inability to convey such knowledge effectively, are both clearly within a commonly understood definition of “incompetency,” the cases demonstrate that as a ground for teacher dismissal, the term has been judicially expanded to cover such matters as: the inability to maintain classroom discipline and interest (Tucker v. San Francisco Unified School District, 111 Cal.App.2d 875, 245 P.2d 597 (1953)); corporal punishment of students (Houeye v. St. Helena Parish School Board, 223 La. 966, 67 So.2d 553 (1953)) physical inability to perform the duties of a teacher (Alexander v. Manton Joint Union School Dist., 82 Cal.App. 330, 255 P. 516 (1927)): and prior misconduct (Redcay v. State Board of Education, 130 N.J.L. 369, 33 A.2d 120, aff’d. without op., 131 N.J.L. 326, 36 A.2d 428 (1944)).

The Redcay Court in rejecting the argument that incidents occurring prior to the creation of the teaching contract should not be considered in proceedings to dismiss a teacher for unfitness, announced a principle pertinent to the case before us:

“Unfitness for a task is best shown by numerous incidents. Unfitness for a position under the school system is best evidenced by a series of incidents. Unfitness to hold a post might be shown by one incident, if sufficiently flagrant, but it might also be shown by many incidents.” 33 A.2d 120, 122.²

Finally, we note with approval the standards by which unfitness to teach may be measured, as they were delineated by the California Supreme Court in Morrison v. State Board of Education, supra:

“In determining whether the teacher’s conduct thus indicates unfitness to teach the board may consider such matters as the likelihood that the conduct may have adversely affected students or fellow teachers, the degree of such adversity anticipated, the proximity or remoteness in time of the conduct, the type of teaching certificate held by the party involved, the extenuating or aggravating circumstances, if any, surrounding the conduct, the praiseworthiness or blameworthiness of the motives resulting in the conduct, the likelihood of the recurrence of the questioned conduct, and the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers. These factors are relevant to the extent that they assist the board in determining a teacher’s fitness to teach, i. e., in determining whether the teacher’s future classroom performance and overall impact on his students are likely to meet the board’s standards.” 461 P.2d 375, 386, 387.

While it is true that in a Rule 80B review, the 'Court below was without authority to overrule findings of fact supported by substantial evidence (Laser Frank, formerly Skowhegan Village Shopping Center v. Assessors of Skowhegan and the Inhabitants of the Town of Skowhegan, Me., 329 A.2d 167 (1974)), a misapplication of the law to the facts as found, constitutes reversible error. Larry K. Harlow v. Agway, Inc. &/or Travelers Insurance Company, Me., 327 A.2d 856 (1974).

Applying the principles gleaned from the above decisions to the case now before us, we find, as a matter of law, that a single, isolated instance of “grave lack of judgment” which does not involve such moral impropriety, professional incompetency, or unsuitability to the discharge of his duties as to undermine “the teacher’s future classroom performance and overall impact on his students” does not constitute “unfitness to teach” within the intendment of 20 M.R.S.A. 473(4).³

Having found the judgment below to be error as a matter of law, we have no need to reach the other issues raised by appellant.

The entry must be,

Appeal sustained.

DUFRESNE, C. J., and WERNICK, J., concurring.

DELAHANTY, J., dissenting.

WEATHERBEE, J., joined in dissent.

ARCHIBALD, J., concurring separately in majority opinion.

1 . The conduct of the proceeding before the School Committee was a model of excellence for quasi-judicial proceedings before an administrative tribunal. The specification of charges served on defendant was specific in detail. The defendant appeared and was represented by competent counsel. The presiding officer at the hearing was an able, experienced lawyer-member of the Committee who conducted the hearing with scrupulous regard for the rights of all parties.

2 . In the ease at Bar, no claim is made that appellant exhibited “grave lack of judgment” on numerous occasions. Had that been so, we would be compelled to scrutinize such pattern of behavior to determine whether it constituted such “temperamental unfitness” to teacli as was discussed in Hopkins v. Bucksport, supra. Temperament is defined as “the unique physical constitution of an individual that permanently affects his manner of thinking, feeling, and acting;” (Random House Dictionary of the English Language, X). 1352), i. e., his natural disposition. The isolated act of one who has for 12 years satisfactorily demonstrated his qualifications and suitability for instructing students could not reasonably be the basis of a finding that he was temperamentally unfit to teach.

3 . We do not mean to say that a single incident can never constitute “unfitness to teach.” The facts of each case must be evaluated in terms of whether the character and degree of the act have so impaired the services of tlie teacher in properly instructing his students that he may be said to be incapable of or unsuited to teaching.