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SJC-11563

  SUPERINTENDENT-DIRECTOR OF ASSABET VALLEY REGIONAL VOCATIONAL
            SCHOOL DISTRICT vs. ANN MARIE SPEICHER.



            Suffolk.     May 5, 2014. - September 11, 2014.

  Present:     Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.


Arbitration, Authority of arbitrator, Judicial review, Award,
     School committee. Education Reform Act. Statute,
     Construction. School and School Committee, Arbitration,
     Suspension from employment. Public Employment, Suspension.



     Civil action commenced in the Superior Court Department on
May 18, 2011.

     The case was heard by Paul E. Troy, J., on motions for
judgment on the pleadings.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Tim D. Norris for the plaintiff.
     Sheilah F. McCarthy for the defendant.
     Will Evans & Quesiyah S. Ali, for Massachusetts Teachers
Association, amicus curiae, submitted a brief.


    SPINA, J.      In this case we are asked to decide whether an

arbitrator exceeded his authority by reviewing the merits of a

twenty-day suspension of a school librarian having professional
                                                                        2

teacher status.   The librarian had been suspended for "conduct

unbecoming" the librarian, pursuant to G. L. c. 71, § 42D.        The

arbitrator applied a just cause standard of review and

overturned the suspension on the ground that the school district

failed to meet its burden of proof.    The school district filed

an action to vacate the arbitrator's award under G. L. c. 150C,

§ 11, and for declaratory relief under G. L. c. 231A.     A judge

in the Superior Court denied the school district's motion for

judgment on the pleadings, and allowed the librarian's cross-

motion for judgment on the pleadings, thereby confirming the

arbitrator's award.     The school district appealed, and we

transferred the case from the Appeals Court on our own motion.

We hold that the arbitrator did not exceed his authority by

reviewing the merits of the suspension.     We further hold that

the proper standard of review is whether the district sustained

its burden of proving by a preponderance of the evidence the

particular reason cited for the suspension.     We affirm the

judgment of the Superior Court.1

     1.   Background.    The librarian, Ann Marie Speicher, had

been employed as a school librarian for at least three

consecutive school years by the Assabet Valley Regional School

District (district) as of October 29, 2009.    As such, she was

considered a "teacher" under G. L. c. 71, § 41, and entitled to

     1
       We acknowledge the amicus brief filed by the Massachusetts
Teachers Association in support of Ann Marie Speicher.
                                                                     3

professional teacher status under G. L. c. 71 § 42.     A district

employee with professional teacher status may seek review of a

suspension by following the arbitration procedures set forth in

§ 42.    See G. L. c. 71, § 42D.

     The district superintendent, based on an investigation

conducted by Speicher's principal, suspended Speicher without

pay for twenty days for conduct deemed by the superintendent to

be unbecoming a "teacher."    The superintendent determined that

Speicher had vouched for a student's presence in the library for

an amount of time in excess of the time the student actually was

in the library -- time that otherwise would have constituted the

student's unexcused absence from a classroom.    Before being

suspended, Speicher was afforded all the procedural steps and

safeguards set forth in G. L. c. 71, § 42D, including a

predisciplinary meeting with the superintendent.

     Speicher sought review of the suspension by an arbitrator,

pursuant to § 42D.2   The district maintained at arbitration that

the scope of arbitration was limited to the question whether

Speicher received the procedural due process safeguards set

forth in § 42D, and not a review of the merits of her

suspension.   Speicher, in contrast, contended that she was

entitled to a review of the merits of the suspension decision,


     2
       The arbitration proceeded pursuant to statute, namely,
G. L. c. 71, § 42D, and not pursuant to a collective bargaining
agreement.
                                                                  4

and that the standard of review should be "just cause."    The

arbitrator conducted an evidentiary hearing, and he considered

the merits of the suspension.   He made findings of fact and

rulings of law.   He applied a "just cause" standard and

concluded that the district had failed to sustain its burden of

proof as to whether Speicher had in fact vouched for the

student, as alleged.   He determined that Speicher's twenty-day

suspension violated § 42D and must be rescinded, that Speicher

should be made whole for all lost wages and benefits resulting

from the suspension, and that all references to the suspension

should be removed from her personnel file.   In confirming the

arbitrator's award, the Superior Court judge concluded that the

arbitrator was not shown to have exceeded his authority by

reviewing the merits of the suspension, reasoning that nothing

in § 42D prohibited the arbitrator from reviewing the

superintendent's decision.

    2.   Statutory framework.   General Laws c. 71, § 42D, the

teacher suspension statute, states:

         "The superintendent may suspend any employee of the
    school district subject to the provisions of this section.
    The principal of a school may suspend any teacher or other
    employee assigned to the school subject to the provisions
    of this section. Any employee shall have seven days
    written notice of the intent to suspend and the grounds
    upon which the suspension is to be imposed; provided,
    however, that the superintendent may, for good cause,
    require the immediate suspension of any employee, in which
    case the employee shall receive written notice of the
    immediate suspension and the cause therefor at the time the
    suspension is imposed. The employee shall be entitled (i)
                                                                  5

    to review the decision to suspend with the superintendent
    or principal if said decision to suspend was made by the
    principal; (ii) to be represented by counsel in such
    meetings; [and](iii) to provide information pertinent to
    the decision and to the employee's status.

         "No teacher or other employee shall be suspended for a
    period exceeding one month, except with the consent of the
    teacher or other employee, and no teacher or other employee
    shall receive compensation for any period of lawful
    suspension.

         "No teacher shall be interrogated prior to any notice
    given to him relative to the suspension unless the teacher
    or other employee is notified of his right to be
    represented by counsel during any such investigation. A
    suspended teacher or other employee may seek review of the
    suspension by following the arbitration procedures set
    forth in [§ 42, the teacher dismissal statute]. Nothing in
    this section shall be construed as limiting any provision
    of a collective bargaining agreement with respect to
    suspension of teachers or other employees." (Emphasis
    added.)

    General Laws c. 71, § 42, the teacher dismissal statute,

states:

         "A principal may dismiss or demote any teacher or
    other person assigned full-time to the school, subject to
    the review and approval of the superintendent; and subject
    to the provisions of this section, the superintendent may
    dismiss any employee of the school district. . . .

         "A teacher with professional teacher status, pursuant
    to [§ 41], shall not be dismissed except for inefficiency,
    incompetency, incapacity, conduct unbecoming a teacher,
    insubordination or failure on the part of the teacher to
    satisfy teacher performance standards developed pursuant to
    [§ 38] of this chapter or other just cause.

         "A teacher with professional teacher status may seek
    review of a dismissal decision within thirty days after
    receiving notice of his dismissal by filing a petition for
    arbitration with the commissioner. . . .

         "At the arbitral hearing, the teacher and the school
    district may be represented by an attorney or other
                                                                   6

    representative, present evidence, and call witnesses and
    the school district shall have the burden of proof. In
    determining whether the district has proven grounds for
    dismissal consistent with this section, the arbitrator
    shall consider the best interests of the pupils in the
    district and the need for elevation of performance
    standards. . . .

         "The arbitral decision shall be subject to judicial
    review as provided in [c. 150C]." (Emphases added.)

    Sections 42 and 42D as quoted above reflect amendments made

by the Education Reform Act of 1993 (act) to provide for

arbitration of dismissals and suspensions, among the many other

features of the act.   See St. 1993, c. 71, §§ 44, 47.

    3.   Discussion.   The district contends that the plain

language of G. L. c. 71, § 42D, which contains no standard of

review, contemplates only arbitral review of the procedures

followed by the superintendent in cases of teacher suspension,

and not arbitral review of the merits of the suspension.

Speicher argues that notwithstanding the absence of a standard

of review in § 42D, the language of that statute that affords

suspended employees "review of the suspension" means that she

was entitled to arbitral review of the merits of her suspension.

Speicher further contends that the arbitrator correctly employed

a "just cause" standard of review because it was reasonable to

do so where § 42D is silent as to the standard of review.

    "Absent proof of one of the grounds specified in G. L.

c. 150C, § 11, a reviewing court is 'strictly bound by the

arbitrator's factual findings and conclusions of law, even if
                                                                      7

they are in error.'"   School Comm. of Lowell v. Robishaw, 456

Mass. 653, 660-661 (2010), quoting School Comm. of Pittsfield v.

United Educators of Pittsfield, 438 Mass. 753, 758 (2003).      One

such ground for vacating an award is that the arbitrator

exceeded his authority.   G. L. c. 150C, § 11 (a) (3).   Where, as

here, "the source of authority to arbitrate . . . is a statute,

and not an agreement, judicial review of an arbitrator's

interpretation of the meaning of the authorizing statute . . .

and the scope of his or her authority thereunder is broader and

less deferential than in cases involving judicial review of an

arbitrator's decision relating to similar issues arising out of

an agreement of the parties."    Atwater v. Commissioner of Educ.,

460 Mass. 844, 856-857 (2011).     See School Dist. of Beverly v.

Geller, 435 Mass. 223, 229 (2001) (Cordy, J., concurring).

    We begin our analysis with perhaps two of the most familiar

rules of statutory construction.    First, "a statute must be

interpreted according to the intent of the Legislature

ascertained from all its words construed by the ordinary and

approved usage of the language, considered in connection with

the cause of its enactment, the mischief or imperfection to be

remedied and the main object to be accomplished, to the end that

the purposes of its frames may be effectuated," Registrar of

Motor Vehicles v. Board of Appeal on Motor Vehicle Liab.

Policies & Bonds, 382 Mass. 580, 585 (1981), quoting Board of
                                                                     8

Educ. v. Assessor of Worcester, 368 Mass. 511, 513 (1975); and

second, "[t]he statutory language itself is the principal source

of insight into the legislative purpose."     Registrar of Motor

Vehicles v. Board of Appeal on Motor Vehicle Liab. Policies &

Bonds, supra, citing Hoffman v. Howmedica, Inc., 373 Mass. 32,

37 (1977).

    Turning to the statute, § 42D provides that any employee

who has been suspended thereunder may seek "review of the

suspension."   The statute further specifies that the form of

review is "arbitration," and the "procedures" for seeking review

are "set forth in [§ 42]."     Section 42 contains the phrase

"review of a dismissal decision," and no one suggests that a

"review" under § 42 means anything but full arbitral review of

the merits of the dismissal.    The word "review" (by arbitration)

was added to both §§ 42 and 42D by the act.     Where the word

"review" appears in these related sections of the same statutory

enactment, it should be given the same meaning in both sections.

See Hallett v. Contributory Retirement Appeal Bd., 431 Mass. 66,

69 (2000) ("Where words in a statute are used in one part of a

statute in a definite sense, they should be given the same

meaning in another part of the statute").     In this context

"review of the suspension" means review of the decision to

suspend.   Stated otherwise, and contrary to the district's
                                                                     9

argument, it means review of the merits of the suspension as

well as the procedures followed to reach the decision.

    Moreover, we said in Atwater v. Commissioner of Educ. that

"the changes to the dismissal process for teachers with

professional teacher status reflect a legislative judgment that

it was in the public interest to 'depoliticize[e] and

streamlin[e] the dismissal process by requiring that contested

dismissals proceed directly to arbitration.'"    460 Mass. at 856,

quoting Geller, 435 Mass. at 225 n.1 (Cordy, J., concurring).

The same reasoning applies to suspensions, particularly where

dismissals and suspensions were addressed at the same time by

the Legislature.   We note that arbitration of the merits of a

suspension would further the legislative goal of depoliticizing

the disciplinary process, whereas disallowing arbitration of a

suspension would have the opposite effect.

    Finally, although not as consequential as dismissals,

suspensions are nonetheless serious enough to warrant review, as

they can have significant future consequences.   Here, in

addition to her twenty-day suspension, Speicher was warned that

any further misconduct would result in dismissal.   For these

reasons, we conclude that the arbitrator acted within his

authority when he considered the merits of Speicher's

suspension.
                                                                   10

    We next turn to the standard of review.    The standard of

review is a question of law.   If the arbitrator applied an

incorrect standard of review, that error generally is not

reviewable.   See School Comm. of Lowell v. Robishaw, 456 Mass.

at 660.   However, because the issue of the correct standard of

review has been briefed fully by parties, is a matter of public

importance, and is likely to recur, we address it.     See Smith v.

McDonald, 458 Mass. 540, 543 n.4 (2010).   The parties have

observed correctly that § 42D does not contain a standard of

review.   However, § 42D has incorporated by specific reference

those portions of § 42 that govern the arbitral procedure for

reviewing dismissals of school district employees.    This is an

appropriate legislative procedure.   See 1A N.J. Singer & J.D.

Shambie Singer, Statutes and Statutory Construction § 22:25 (7th

ed. 2012); 2B Singer & Singer, supra at §§ 51:7, 51:8.     It is

not without complication.   "A statute of specific reference

incorporates provisions as they exist at the time of adoption,

without subsequent amendments, unless a legislature has

expressly or by strong implication shown its intention to

incorporate subsequent amendments with the statute.    In the

absence of such intention, subsequent amendment of the referred

statute has no effect on the reference statute."     2B Singer &

Singer, supra at § 51:8 (footnotes omitted).   See Salem &

Beverly Water Supply Bd. v. Commissioner of Revenue, 26 Mass.
                                                                  11

App. Ct. 74, 77-78 (1988).   Here, the arbitral procedure of § 42

was specifically incorporated by reference in § 42D by St. 1993,

c. 71, § 47.   Section 42 has since been amended, but the

amendment does not relate to the subject matter of this appeal,

and the amendment does not take effect until September 1, 2016.

See St. 2012, c. 131, § 3.

    The arbitral procedures of § 42 in turn incorporate the

standard of review set forth within that section, which places

the burden of proof on the school district.     Section 42 further

provides that when determining whether the district has met its

burden of proof, the arbitrator must focus upon the "grounds for
                                           3
dismissal consistent with this section."       Thus, the permissible

grounds for dismissal under § 42 also are incorporated by

reference into the arbitral procedures set forth in § 42, and

they apply to suspensions under § 42D.     The grounds for

discipline enumerated in § 42, are "inefficiency, incompetency,

incapacity, conduct unbecoming a teacher, insubordination or

failure on the part of the teacher to satisfy teacher

performance standards developed pursuant to [§ 38] of this




    3
       Section 42, fifth par., states that, "[i]n determining
whether the district has proven grounds for dismissal consistent
with this section, the arbitrator shall consider the best
interests of the pupils in the district and the need for
elevation of performance standards." Arbitrators also should
consider these factors when reviewing suspensions pursuant to
§ 42D.
                                                                   12

chapter or other just cause" (emphases added).4   In the context

of § 42, the enumerated grounds for discipline constitute just

cause for discipline, in addition to "other just cause."   See

Geller, 435 Mass. at 233 (Cordy, J., concurring).   Thus, when

reviewing a suspension, the statute requires an arbitrator to

determine (1) whether the district sustained its burden of

proving that the teacher committed the conduct alleged, and (2)

whether the conduct alleged is serious enough to meet an

enumerated ground providing just cause for suspension, i.e., not

trivial misconduct.   See School Comm. of Lexington v. Zagaeski,

469 Mass. 104, 117 (2014), citing Geller, 435 Mass. at 231 n.7

(Cordy, J., concurring).   The statute does not, however, empower

an arbitrator to substitute his judgment for that of the

superintendent as to the level of discipline that is warranted,

according to some generalized notion of "just cause."    See

Zagaeski, supra at 115-116; Geller, supra at 231, 234 (Cordy,

J., concurring).

     Here, the arbitrator did not act in excess of his authority

by reviewing the merits of Speicher's suspension and concluding

that the district had not met its burden of proving the alleged

just cause for suspension.

                                    Judgment affirmed.

     4
       Although these grounds apply to suspensions as well as
dismissals, the seriousness or egregiousness of the misconduct
or omission necessarily will affect the nature and degree of the
discipline.
