School Committee of Lexington v. Zagaeski

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SJC-11536

SCHOOL COMMITTEE OF LEXINGTON vs. MARK ZAGAESKI.

Middlesex. March 4, 2014. - July 14, 2014.

Present: Ireland, C.J., Spina, Cordy, Botsford, Duffly, &

Lenk, JJ.

Arbitration, Judicial review, Authority of arbitrator, Award,

School committee. Education Reform Act. Statute,

Construction. School and School Committee, Arbitration,

Termination of employment. Public Employment, Termination.

Civil action commenced in the Superior Court Department on

April 27, 2012.

Motions to vacate and to affirm an arbitration award were

heard by Bruce R. Henry, J.

The Supreme Judicial Court granted an application for

direct appellate review.

Geoffrey R. Bok (Colby C. Brunt with him) for the

plaintiff.

Daniel S. O'Connor (Laura Elkayam with him) for the

defendant.

Stephen J. Finnegan & Michael J. Long, for Massachusetts

Association of School Commitees, Inc. & another, amici curiae,

submitted a brief.

2

Ira Fader for Massachusetts Teachers Association, amicus

curiae, submitted a brief.

SPINA, J. In this case, the plaintiff, the school

committee of Lexington (school committee), appealed a decision

by a Superior Court judge confirming an arbitrator's award

reinstating a teacher, Mark Zagaeski, after the school district

superintendent had terminated his employment for conduct

unbecoming a teacher. We granted the plaintiff's application

for direct appellate review. This case presents an issue left

unresolved by this court in School Dist. of Beverly v. Geller,

435 Mass. 223 (2001). We must determine the scope of authority

granted to an arbitrator by G. L. c. 71, § 42 (teacher dismissal

statute), to reinstate a teacher who was dismissed for conduct

that the arbitrator found constituted, at least nominally, a

valid basis for dismissal. 1

We conclude that in light of the stated purposes of the

Massachusetts Education Reform Act of 1993 (Reform Act or Act),

of which the teacher dismissal statute is a part, the arbitrator

exceeded the scope of his authority by awarding reinstatement of

Zagaeski on the basis of the "best interests of the pupils" in

1

General Laws c. 71, § 42 (teacher dismissal statute),

provides in part that a teacher who has served in a school

district for at least three consecutive school years may 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 [G. L. c. 71, § 38,] or other just cause."

3

the district, despite having found that the school district

carried its burden to show facts amounting to conduct unbecoming

a teacher. See G. L. c. 69, § 1, as appearing in St. 1993,

c. 71, § 27; G. L. c. 71, § 42. We reverse the decision of the

Superior Court judge and vacate the arbitration award. 2

1. Background. a. Facts. 3 Zagaeski's dismissal from his

position at the Lexington public schools arose from a series of

incidents that took place prior to the spring of 2011. 4 By that

time, Zagaeski had been employed by the Lexington school

district (school district) since 2000 as a physics teacher. 5

2

We acknowledge the amicus brief filed by the Massachusetts

Teachers Association in support of Zagaeski and the amicus brief

filed by the Massachusetts Association of School Committees,

Inc., and the Massachusetts Association of School

Superintendents in support of the Lexington School Committee.

3

A reviewing court is bound by the facts found by the

arbitrator. School Comm. of Lowell v. Robishaw, 456 Mass. 653,

660-661 (2010). Accordingly, we summarize the facts leading up

to Zagaeski's dismissal based on the facts found in the

arbitrator's award.

4

Zagaeski's dismissal was based on six separate instances

of conduct that the school district found to constitute conduct

unbecoming a teacher. Because the arbitrator concluded that the

school district had carried its burden to establish that only

one of these incidents constituted, at least nominally, conduct

unbecoming a teacher, we address only that incident.

5

Zagaeski earned his doctorate in cellular biophysics in

1981. Following postdoctoral work, he was employed as a teacher

for six years at a private school. He began working at

Lexington High School in 2000. He took a leave of absence from

the fall of 2002 to the fall of 2004 to work in private

industry. He returned to Lexington High School in the fall of

2004 and worked there continuously until his termination in

June, 2011.

4

Until 2011, Zagaeski's teaching evaluations had been uniformly

positive, and he had never been disciplined by the district. He

was commended by classroom observers for creating a classroom

environment in which students felt comfortable asking questions

and were engaged in the learning process.

At Lexington High School, Zagaeski taught an integrated

math and physics class for students who tended to be at-risk

academically and had struggled in math and science classes in

the past. Many of these students also faced behavioral issues

and some had been diagnosed with attention deficit disorder and

other learning challenges. In order to engage this student

population, Zagaeski developed a teaching style that was less

hierarchical. He encouraged collaboration and a more relaxed

classroom atmosphere. The arbitrator found that, as a result,

"the students had a more familiar relationship with Dr. Zagaeski

than they would have with a teacher following a more traditional

teaching style" and that "[Zagaeski] was more flexible with

boundaries than another teacher might have been." However,

Zagaeski's nontraditional boundaries eventually caused problems.

In April, 2011, a seventeen year old female student in

Zagaeski's class was disappointed with the grade she was then

receiving and asked Zagaeski, in front of her classmates,

whether there was any way she could "pay . . . for a better

grade." A male student in the class asked, "You mean short of

5

sexual favors?" Rather than correcting the male student for

making a comment encouraging the trade of sex for grades,

Zagaeski chose to engage in the dialogue himself. "Yes, that is

the only thing that would be accepted," he stated. Students in

the classroom laughed, and Zagaeski continued by saying, "Don't

be ridiculous" and told the female student that the only way to

raise her grade would be better work. He then encouraged her to

come after school for extra help if she had questions.

Two days later, the female student did go to Zagaeski's

classroom after school for extra help. Zagaeski was in his

classroom assisting a second female student in setting up

equipment for laboratory work that she would be doing that

afternoon. The first female student again asked Zagaeski,

"[C]an't I just pay you for a better grade?" Zagaeski

responded, "Well, no . . . you know that the only thing that I

would accept is a sexual favor." The second female student

exclaimed, "Dr. Z!" and laughed. However, the first female

student made a complaint to her guidance counselor about

Zagaeski's comments, which the arbitrator determined was a

result of the student feeling troubled by the comments.

Following the student's complaint, the school principal

commenced an investigation, which was then taken up by the

central administration. Zagaeski was provided with written

notice that an investigation had commenced into allegations of

6

sexual harassment against him, and he was placed on

administrative leave. The assistant superintendent then

interviewed a number of staff members and students. He also

arranged for an investigative interview of Zagaeski, which was

attended by the assistant superintendent, counsel for the school

district, union counsel for Zagaeski, and the president of the

teacher's union.

Following the interview, Zagaeski came to understand that

the allegations against him were quite serious. He then wrote a

letter to the assistant superintendent expressing remorse and an

intent to improve his classroom approach. In the letter he

admitted to "the weakness of an appropriate boundary between

myself and my students" and the "need to create much clearer

guidelines, not only for the students in my classroom, but for

my own behavior towards students as well." He also stated,

"Allowing . . . sexually inappropriate comments in the class to

go unchallenged, and even to take part in that banter myself is

completely out of line . . . ."

Subsequently, the district superintendent reviewed

Zagaeski's letter and his personnel file and was briefed by the

assistant superintendent regarding the investigative interview

and other interviews that the assistant superintendent had

conducted with students and staff. The superintendent

thereafter provided Zagaeski with formal notice of the

7

district's intent to dismiss him from employment and of his

right to meet with the superintendent to provide additional

information on his own behalf. Zagaeski requested such a

meeting, which he attended with counsel. Also present at the

meeting were the superintendent and assistant superintendent,

counsel for the school district, a representative from the

Massachusetts Teachers Association and the president of the

teacher's union.

Soon thereafter, the superintendent informed Zagaeski in

writing that he was dismissed from his position. The dismissal

was based on six separate instances of conduct found to

constitute conduct unbecoming a teacher. The dismissal letter

also stated that any one of the instances alone would have been

sufficient to justify his dismissal.

b. Arbitration award. Pursuant to his rights under the

teacher dismissal statute, Zagaeski timely filed an appeal from

the school district's dismissal decision, which, as mandated by

the statute, resulted in arbitration proceedings. See G. L.

c. 71, § 42, par. 4. Based on undisputed evidence and

Zagaeski's testimony at the arbitration hearing, the arbitrator

concluded that the school district had carried its burden to

establish only one of its six bases for dismissal of Zagaeski,

specifically Zagaeski's admission that, "in response to a female

student's inquiry as to whether she 'could just pay . . . for a

8

higher grade' [he] responded, "No. The only thing I would

accept is a sexual favor."

Regarding this conduct, the arbitrator found that although

it was intended only as a joke, it rose to the level of sexual

harassment as defined in the school committee's "Policy

Prohibiting Harassment." 6 The arbitrator further found that even

though the comments by Zagaeski were not intended to be taken in

earnest, objectively they were inappropriate comments for a

teacher to make to a student. Furthermore, the comments had the

subjective effect of offending the student or making her

sufficiently uncomfortable to lodge a complaint with her

guidance counselor. Therefore, the arbitrator found that these

comments created a hostile or offensive educational environment

for the female student.

Nevertheless, the arbitrator went on to find that this

instance of sexual harassment was "relatively less egregious"

and that the two comments regarding the trade of sex for grades,

6

As reflected in the arbitrator's decision, the policy

provides, in part: "Harassment is defined as any communication

or conduct that is sufficiently serious to limit or deny the

ability of a student to participate in or benefit from the

educational program . . . . It includes . . . any communication

. . . such as jokes . . . that offends or shows disrespect to

others based upon . . . color [or] gender . . . ." It further

provides: "While all types of harassment are prohibited, sexual

harassment requires particular attention . . . . In addition to

the above examples, other sexually oriented conduct, whether it

is intended or not, that is unwelcome and has the effect of

creating . . . [an] educational environment that is hostile,

offensive, intimidating or humiliating . . . may constitute

sexual harassment . . . ."

9

separated by two days, could be viewed as "one isolated

instance" of sexual harassment. Thus the arbitrator concluded

that Zagaeski's conduct constituted a "relatively minor and

isolated" violation of the harassment policy, which only

"nominally" constituted conduct unbecoming a teacher. The

arbitrator further found that in light of Zagaeski's strong

performance throughout his employment, it would be in the best

interests of the pupils in the district that he be retained as a

teacher. Therefore, the arbitrator issued an award reinstating

Zagaeski with full back pay, less two days of unpaid suspension,

which was the most severe discipline for which the school

district would have had "just cause," according to the

arbitrator.

c. Superior Court decision. Following the issuance of the

arbitration award, the school committee filed a complaint and

application to vacate the arbitration award in the Superior

Court on the bases that the arbitrator had exceeded his

statutory authority in modifying the punishment imposed by the

school district and that the arbitrator's award violated public

policy. Zagaeski filed a counterclaim and application to

confirm the award.

Under the teacher dismissal statute, judicial review of an

arbitration award is limited to the grounds set forth in G. L.

c. 150C, § 11. See G. L. c. 71, § 42, par. 6. One such ground

10

is if the arbitrator "exceeded [his or her] powers or rendered

an award requiring a person to commit an act or engage in

conduct prohibited by state or federal law." G. L. c. 150C,

§ 11 (a) (3). The Superior Court judge, referencing existing

uncertainty in the case law surrounding the precise scope of an

arbitrator's authority under the teacher dismissal statute to

reduce or alter the disciplinary penalty imposed by a school

district, concluded that the arbitrator had not exceeded his

authority in issuing the award. The judge stated that although

he was inclined to follow the reasoning of Justice Cordy's

plurality opinion in Geller in support of a conclusion that the

arbitrator had exceeded the scope of his authority, the judge

was given pause by a footnote in the opinion, which states in

relevant part, "This is not the case of an arbitrator finding a

teacher to have engaged in minor misconduct that, however,

nominally fit within a category on which dismissal could be

based. In such circumstances, an arbitrator's finding that the

conduct did not rise to the level of misconduct contemplated by

the statute as a ground for dismissal is one that would likely

lie within the scope of his authority." Geller, 435 Mass. at

231 n.7 (Cordy, J., concurring). Therefore, because the

arbitrator's award in this case tracked precisely the footnote

in Geller in concluding that Zagaeski's conduct only "nominally"

constituted conduct unbecoming a teacher, the judge concluded

11

that the arbitrator's award was not in excess of his statutory

authority. 7

Consequently, the judge denied the school committee's

motion to vacate the arbitration award and granted Zagaeski's

application to confirm. The school committee appealed from the

decision of the Superior Court and filed an application for

7

The judge further concluded that the arbitration award did

not constitute a violation of public policy. We have recognized

that an arbitrator may exceed the scope of his or her authority

in awarding reinstatement of an employee where the award

violates public policy. See Atwater v. Commissioner of Educ.,

460 Mass. 844, 848 (2011). The requirements for establishing

that such an award is contrary to public policy are three-fold:

(1) the conduct in issue violates a well-defined and dominant

public policy set forth in statutory or judicial sources, (2)

the conduct in issue is integral to the employee's duties, and

(3) the award itself violates public policy because the

employee's conduct is of the sort that requires dismissal.

School Comm. of Lowell v. Robishaw, 456 Mass. 653, 664 (2010).

Bureau of Special Investigations v. Coalition of Pub. Safety,

430 Mass. 601, 604-605 (2000). Because we conclude that the

arbitrator exceeded the scope of his authority on other grounds,

we need not reach this argument. However, we do acknowledge

that there is a well-defined and dominant public policy

prohibiting teacher-on-student sexual harassment and that

Zagaeski's conduct, undertaken in the classroom setting, was

integral to the performance of his employment duties. See G. L.

c. 151C, § 2 (g) (sexual harassment of student is unfair

educational practice); G. L. c. 214, § 1C (granting right to be

free from sexual harassment in school); 603 Code Mass. Regs.

§ 26.07(2) (2012) (requiring public schools to strive to prevent

sexual harassment and to respond promptly to reports of its

occurrence). See also School Dist. of Beverly v. Geller, 435

Mass. 223, 238 (2001) (Ireland, J., concurring in the result),

quoting Massachusetts Highway Dep't v. American Fed'n of State,

County, and Mun. Employees, Council 93, 420 Mass. 13, 17 (1995)

(teacher's repeated infliction of physical abuse on students in

school was misconduct that "goes 'to the heart of a worker's

responsibilities'"); Massachusetts Highway Dep't, supra.

12

direct appellate review. We granted the school committee's

application, and we reverse.

2. Standard of review. As a general matter, "a reviewing

court is strictly bound by an arbitrator's factual findings and

conclusions of law, even if they are in error." School Comm. of

Lowell v. Robishaw, 456 Mass. 653, 660 (2010), quoting School

Comm. of Pittsfield v. United Educators of Pittsfield, 438 Mass.

753, 758-759 (2003) (Pittsfield). This strict standard of

review is highly deferential to the decision of an arbitrator,

and it reflects a strong public policy in the Commonwealth in

favor of arbitration. Pittsfield, supra at 758. See Geller,

435 Mass. at 228 (Cordy, J., concurring); Bureau of Special

Investigations v. Coalition of Pub. Safety, 430 Mass. 601, 604

n.4 (2000), quoting Delta Air Lines, Inc. v. Air Line Pilots

Ass'n, Int'l, 861 F.2d 665, 670 (11th Cir. 1988) ("An

arbitrator's result may be wrong; it may appear unsupported; it

may appear poorly reasoned; it may appear foolish. Yet it may

not be subject to court interference"). Such strong public

policy arises in part from a general recognition that

arbitration has long served as an effective means of resolving

labor disputes without resort to the courts. Pittsfield, supra.

Therefore, in order to protect the efficiency that arbitration

affords in resolving these disputes, the Legislature often

strictly limits the circumstances in which a court may vacate an

13

arbitral award -- lest arbitration become merely an intermediate

step between a dispute and litigation in court. Id.

In the education context, the Reform Act replaced de novo

review of teacher dismissal decisions by the Superior Court with

mandatory arbitration in order to "depoliticize[] and

streamline[]" the teacher dismissal process. See Geller, 435

Mass. at 225 n.1 (Cordy, J., concurring); 1992 House Doc. No.

5750, at 2 (letter from Governor William Weld accompanying first

draft of Reform Act). Compare G. L. c. 71, § 42, as appearing

in St. 1993, c. 71, § 44, with G. L. c. 71, § 42, as amended

through St. 1988, c. 153, §§ 4-6. The Reform Act provided for

limited judicial review of arbitration awards by reference to

G. L. c. 150C, § 11. See St. 1993, c. 71, § 44. However, a

reviewing court must vacate an arbitration award under the

circumstances set forth in G. L. c. 150C, § 11 (a), including if

the arbitrator exceeded his or her authority in granting the

award. G. L. c. 150C, § 11 (a) (3). School Comm. of Lowell v.

Vong Oung, 72 Mass. App. Ct. 698, 704 (2008), quoting Board of

Higher Educ. v. Massachusetts Teachers Ass'n, NEA, 62 Mass. App.

Ct. 42, 47 (2004) (under teacher dismissal statute, "[t]he

question whether an arbitrator exceeded his or her authority is

always subject to judicial review").

Ordinarily, where arbitration is mandated by the terms of a

collective bargaining agreement, the scope and limits of the

14

authority of the arbitrator are ascertained by reference to the

terms of the agreement. School Comm. of Chicopee v. Chicopee

Educ. Ass'n, 80 Mass. App. Ct. 357, 364 (2011) (Chicopee).

Indeed, judicial deference to arbitrators' awards stems in part

from a recognition that the parties bargained for and agreed

that an arbitrator would serve as a neutral third party in

interpreting the written agreement between the parties, whether

it be a commercial contract or a collective bargaining

agreement. Geller, 435 Mass. at 229-230 (Cordy, J.,

concurring). In such circumstance, an arbitrator may be

uniquely qualified to interpret the "law of the shop." Id.

However, in a case such as this, where arbitration is mandated

by statute, the exclusive source of the arbitrator's authority

is the statute itself. G. L. c. 71, § 42. Chicopee, supra at

365 (observing that in Geller, both Justice Cordy's concurrence

and Justice Cowin's dissent agreed with this proposition). See

Geller, 435 Mass. at 230 n.5 (Cordy, J., concurring). Id. at

240 (Cowin, J., dissenting). Consequently, courts are as well,

if not better, positioned to interpret the "law of the land" in

the form of the statutes of the Commonwealth. Geller, supra

229-230 (Cordy, J., concurring), and cases cited. Therefore,

judicial review of the arbitrator's interpretation of the

authorizing statute, particularly regarding the scope of the

arbitrator's authority under the statute, is "broader and less

15

deferential" than in cases of judicial review of an arbitrator's

decision arising from the interpretation of a private agreement.

Atwater v. Commissioner of Educ., 460 Mass. 844, 856-857 (2011),

citing Geller, supra at 229 (Cordy, J., concurring).

We conclude that in light of the stated purposes of the

Reform Act, of which the teacher dismissal statute is a part,

combined with the specific language of the teacher dismissal

statute itself, the arbitrator exceeded the scope of his

authority by awarding reinstatement of Zagaeski. See G. L.

c. 69, § 1, as appearing in St. 1993, c. 71, § 27; G. L. c. 71,

§ 42, pars. 5-6.

3. Statutory scheme. The statutory scheme governing

teacher dismissals set forth in G. L. c. 71, § 42, was enacted

as part of the Reform Act, which brought broad-based changes to

the funding and governance structure of the public education

system in Massachusetts. Geller, 435 Mass. at 225 n.1 (Cordy,

J., concurring). See generally St. 1993, c. 71. In enacting

this statute, the Legislature declared it a "paramount goal" to

provide a public education system of "sufficient quality" to

afford all children the opportunity to participate in, and

contribute to, the political, social, and economic life of the

Commonwealth. G. L. c. 69, § 1, as appearing in St. 1993,

c. 71, § 27. The Legislature further identified four specific

policy goals the Reform Act was intended to ensure: "(1) that

16

each public school classroom provides the conditions for all

pupils to engage fully in learning as an inherently meaningful

and enjoyable activity without threats to their sense of

security or self-esteem, (2) a consistent commitment of

resources sufficient to provide a high quality public education

to every child, (3) a deliberate process for establishing and

achieving specific educational performance goals for every

child, and (4) an effective mechanism for monitoring progress

toward those goals and for holding educators accountable for

their achievement." Id.

In furtherance of these purposes, the Reform Act made

several changes to the statutory scheme governing teacher

dismissals, including shifting from school committees to

principals and superintendents the responsibility for dismissing

teachers, mandating that teachers' appeals from dismissal

decisions proceed directly to arbitration, and providing for

limited review of an arbitrator's award, rather than de novo

review of the dismissal decision, in Superior Court. Compare

G. L. c. 71, § 42, as amended through St. 1988, c. 153, §§ 4-6,

with G. L. c. 71, § 42, as appearing in St. 1993, c. 71, § 44.

According to the teacher dismissal statute as enacted in

1993, school officials may not dismiss a teacher with

17

"professional teacher status" 8 except for "inefficiency,

incompetency, incapacity, conduct unbecoming a teacher,

insubordination or failure on the part of the teacher to satisfy

teacher performance standards . . . or other just cause." G. L.

c. 71, § 42, par. 3. If a teacher elects to appeal a dismissal

decision to an arbitrator, the burden is on the school district

to prove that its dismissal decision was based on one of the

grounds set forth in the statute. G. L. c. 71, § 42, par. 5.

The statute further provides the standard by which the

arbitrator must review the school district's decision.

Specifically, the statute states: "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." Id.

Finally, the statute sets forth the range of remedies an

arbitrator may grant to a teacher upon a finding that the

8

Under § 41 of G. L. c. 71, a teacher who has served in the

public schools of a school district for the three previous

consecutive years is afforded "professional teacher status," and

is entitled to the procedural and substantive employment

protections set forth in G. L. c. 71, § 42. Zagaeski was a

teacher with professional teacher status at the time of his

dismissal.

18

dismissal decision was "improper under the standards set forth

in this section." 9 G. L. c. 71, § 42, par. 6.

4. Discussion. The school committee argues in part that

the arbitrator exceeded the scope of authority set forth in the

teacher dismissal statute by modifying the punishment imposed by

the school district despite having found that the school

district carried its burden to show conduct unbecoming a

teacher. The school committee contends that the arbitrator here

found that Zagaeski's conduct constituted conduct unbecoming a

teacher because it is the facts found and the manner in which

they are described by the arbitrator, not the label ascribed to

the conduct, that is dispositive. See Geller, 435 Mass. at 231

(Cordy, J., concurring). The arbitrator found Zagaeski's

conduct to be "obviously . . . inappropriate," in violation of

9

We reject Zagaeski's argument that the remedial language

contained in paragraph six of the teacher dismissal statute is

the source of the arbitrator's authority. The provision states

in part, "Upon a finding that the dismissal was improper under

the standards set forth in this section, the arbitrator may

award [equitable remedies]." Plainly, this is a reference back

to the standards by which a school district may dismiss a

teacher and according to which an arbitrator must review a

decision. G. L. c. 71, § 42, pars. 3, 5, 6. This provision

does not authorize the arbitrator to alter any disciplinary

penalty he or she finds to be "improper" according to the

dictionary definition of "improper" and without reference to the

substantive standards set forth in paragraphs three and five of

the statute. Furthermore, the range of equitable remedies

available enables an arbitrator to make a teacher whole if the

school district is found to have failed to carry its burden to

show a valid basis for dismissal. The range of remedies does

not imply complete discretion of the arbitrator to impose a

different punishment that he or she prefers.

19

the school district's sexual harassment policy, subjectively

offensive, and of the sort to create a "hostile educational

environment." Thus, the arbitrator described the conduct in a

manner establishing that Zagaeski's comments constituted conduct

unbecoming a teacher even though the arbitrator concluded that

the conduct only "nominally" rose to that level. 10 Id. at 231 &

nn.6-7 (Cordy, J., concurring).

The school committee further argues in favor of the

interpretation of the statute set forth in Justice Cordy's

concurrence in Geller. See 435 Mass. at 231, 234 (Cordy, J.,

concurring). Specifically, the school committee argues that

once an arbitrator concludes that the school has proved one of

the grounds upon which the statute permits dismissal, the

arbitrator is not authorized then to impose a lesser punishment

than that selected by the school. See id. According to the

school committee, footnote seven in Justice Cordy's concurrence

could then be understood to mean that only in a circumstance

10

Prior to the Reform Act, comments alone, without other

physical conduct, were recognized as sufficient to constitute

"conduct unbecoming a teacher." See MacKenzie v. School Comm.

of Ipswich, 342 Mass. 612, 616 (1961). Although the Reform Act

made significant changes to the teacher dismissal statute, it

preserved "conduct unbecoming a teacher" as a permitted ground

for dismissal of a teacher. Compare G. L. c. 71, § 42, as

appearing in St. 1993, c. 71, § 44, with G. L. c. 71, § 42, as

amended through St. 1988, c. 153, §§ 4-6. Where the Legislature

reenacts statutory language following a judicial interpretation

of it, the Legislature is presumed to accept that

interpretation. Boston Hous. Auth. v. Bell, 428 Mass. 108, 110

(1998), and cases cited.

20

where the conduct at issue is so minor that it does not, in

substance, constitute conduct unbecoming a teacher or another

enumerated ground permitting dismissal does the arbitrator have

the authority to alter the punishment imposed by the school.

See id. at 231 n.7 (Cordy, J., concurring). The school

committee contends that here, the conduct found by the

arbitrator was sufficiently egregious to constitute in

substance, not merely in name, conduct unbecoming a teacher.

Therefore the arbitrator's decision does not fall into the

narrow exception for "nominal" conduct contemplated in Justice

Cordy's concurrence in Geller. See id.

Zagaeski argues, however, that the language of the teacher

dismissal statute in fact permits an arbitrator to adjust the

discipline imposed upon a teacher even after finding that the

conduct rises to the level of one of the grounds for which

dismissal is permitted by the statute. Specifically, Zagaeski

contends that the language of G. L. c. 71, § 42, par. 6,

contemplates the adjustment of a disciplinary penalty by the

arbitrator in that it states, "Upon a finding that the dismissal

was improper under the standards set forth in this section, an

arbitrator may award back pay, benefits, reinstatement, and any

other appropriate non-financial relief or any combination

thereof" (emphasis added). G. L. c. 71, § 42, par. 6. Zagaeski

argues that the finding that dismissal is "improper" may arise

21

from the arbitrator's conclusion that the school district failed

to carry its burden to show conduct permitting dismissal, or it

may arise from the arbitrator's independent conclusion that

dismissal was excessive in light of the nature of the misconduct

found to have occurred. Further, Zagaeski argues that the

arbitrator cannot have exceeded his authority by considering

Zagaeski's past performance as a teacher in determining that his

dismissal would not be in the best interest of the students in

the district because the dismissal statute mandates that the

arbitrator engage in such an inquiry. G. L. c. 71, § 42,

par. 5.

a. Scope of arbitrator's authority to alter discipline

imposed by school district. The teacher dismissal statute does

not grant the arbitrator the discretion to adjust the discipline

selected by the school district to the extent Zagaeski

maintains. The purpose of the Reform Act was not to enhance the

employment rights of public school teachers. See G. L. c. 69,

§ 1, as appearing in St. 1993, c. 71, § 27. Rather, the stated

purposes of the Reform Act express a concern for the increased

accountability of educators and the improvement of the quality

of education provided in public schools. Id. Further, the Act

eliminated the teacher tenure system, and its reforms to the

teacher dismissal statute were intended to "depoliticize and

streamline" the teacher dismissal process. St. 1993, c. 71,

22

§ 44. 1992 House Doc. No. 5750, at 2 (letter from Governor

William Weld accompanying first draft of Reform Act).

To be sure, the Act preserved certain employment

protections for public school teachers who achieve professional

teacher status, and it replaced the phrase "good cause" with

"just cause" in the catchall provision of the teacher dismissal

statute. Compare G. L. c. 71, § 42, as amended by St. 1993,

c. 71, § 44, with G. L. c. 71, § 42, as amended through St.

1988, c. 153, §§ 4-6. See Geller, 435 Mass. at 233 n.9 (Cordy,

J., concurring) (describing use of the phrase "just cause" as

ensuring that dismissals under the catchall provision were

limited to serious misconduct). However, these changes were

intended to serve as a means of furthering the Act's central

goal of enhancing the quality of the Commonwealth's public

schools, not as an end in themselves. See Atwater, 460 Mass. at

846, 854. The Act affords some measure of employment protection

for teachers to enable schools to attract and retain excellent

educators while still ensuring that principals and

superintendents can act swiftly in making critical staffing

decisions in the schools for which they are responsible. See

id.; Davis v. School Comm. of Somerville, 307 Mass. 354, 362

(1940) ("Manifestly one of the most important duties involved in

the management of a school system is the choosing and keeping of

proper and competent teachers"). The Legislature's decision to

23

shift dismissal decisions to principals and superintendents and

away from school committees, combined with the Governor's stated

goal of "depoliticizing" the teacher dismissal process,

indicates that the statute was intended to ensure that teachers

were dismissed only for valid reasons. However the Legislature

did not necessarily intend for arbitrators to have broad

discretion to adjust disciplinary decisions based on misconduct

that the school had carried its burden to establish.

Our decisions prior to the Reform Act help to shed light on

the balance the Act was intended to achieve between empowering

school officials to manage the teaching staff effectively while

providing some measure of protection to professional status

teachers. Specifically, cases prior to the Reform Act expressed

concern over teacher dismissal decisions by school committees

that were based on "personal hostility, ill will or political

animosity" such that the school's stated grounds for dismissal

were nothing more than pretext. MacKenzie v. School Comm. of

Ipswich, 342 Mass. 612, 619 (1961). See Kelley v. School Comm.

of Watertown, 330 Mass. 150, 151 (1953) (reorganization of

school administration was "subterfuge" and undertaken in bad

faith to enable school committee to demote and replace

petitioner); Sweeney v. School Comm. of Revere, 249 Mass. 525,

529-530 (1924) (school committee voted to eliminate position of

24

principal not on good faith need to conserve resources but due

to disagreement with principal's political views).

Similar concerns animate footnote seven in Justice Cordy's

concurring opinion in Geller, 435 Mass. at 231 n.7. Justice

Cordy concluded that the teacher dismissal statute does not

permit an arbitrator to override a school district's decision to

dismiss a teacher if the arbitrator finds that the school has

proved conduct amounting to one of the grounds permitting

dismissal. Id. at 231. However, Justice Cordy acknowledged

that at the same time, the statute would permit an arbitrator to

override a school district's dismissal decision if the

misconduct in issue is so minor that it does not, in substance,

constitute the sort of misconduct for which the statute permits

dismissal. Id. at 231 n.7.

Consequently, if an arbitrator finds that the school

district has labeled a teacher's conduct "conduct unbecoming a

teacher" when the conduct does not, in substance, truly rise to

that level, or that the school district has used that label

merely as a pretext to dismiss the teacher based on personal,

political, or other unauthorized bases, the arbitrator is

empowered to vacate the punishment imposed by the school

district. Thus, the statutory directive requiring arbitrators

to consider the best interests of the pupils and the need to

elevate performance standards in reviewing whether the school

25

district carried its burden to show conduct permitting dismissal

is intended in part to prevent politically motivated dismissal

decisions. Indeed, the standards governing the arbitrator's

review are likely intended to serve as a direct reminder to the

arbitrator of the purposes underlying the Reform Act and the

proper considerations for a school district to undertake in its

dismissal decisions. See Geller, 435 Mass. at 235.

In this case, however, there is no indication in the record

before us that the grounds on which Zagaeski was dismissed were

mere pretext or that his misconduct was so minor that it did not

in substance constitute one of the enumerated bases on which the

statute permits dismissal. Therefore, Justice Cordy's

observation in footnote seven in Geller regarding "minor"

misconduct, and the concerns expressed in early case law

regarding political dismissals based on "subterfuge," are not

implicated here.

Public school teachers hold a position of special public

trust. Perryman v. School Comm. of Boston, 17 Mass. App. Ct.

346, 349 (1983) ("There are certain forms of employment which

carry a position of trust so peculiar to the office and so

beyond that imposed by all public service that conduct

consistent with this special trust is an obligation of the

employment"). Dupree v. School Comm. of Boston, 15 Mass. App.

Ct. 535, 538 (1983). They are responsible for more than

26

teaching basic academic skills. See Geller, 435 Mass. at 238-

239 (Ireland, J., concurring in the result) ("a teacher's

responsibilities include the maintenance of a safe environment

that is conducive to . . . students' growth"). As we recently

acknowledged, "[s]tudents must be able to trust that they will

be safe in the presence of their teachers and coaches. They

must be able to rely on their teachers and coaches to exercise

sound judgment and maintain appropriate boundaries, even when

they themselves may be unable to do so." Atwater, 460 Mass. at

852 (quoting underlying arbitration award). The creation of a

hostile learning environment through sexual harassment, whether

verbal or physical, can be detrimental to the well-being of

students who experience such harassment in part because it may

unreasonably interfere with their education. See G. L. c. 151C,

§ 1 (e). Moreover, citizens of this Commonwealth, including

public school students, have a constitutional right to be free

from gender-based discrimination, which includes certain forms

of sexual harassment. Art. 1 of the Massachusetts Declaration

of Rights, as amended by art. 106 of the Amendments to the

Massachusetts Constitution. O'Connell v. Chasdi, 400 Mass. 686,

693 (1987) (concluding that sexual harassment can violate rights

secured under art. 1). Numerous statutory enactments also make

clear the importance of protecting children from sexual

harassment in school. See G. L. c. 151C, § 2 (g) (sexual

27

harassment of student in any program or course of study in

educational institution is unfair educational practice); G. L.

c. 214, § 1C (granting right to be free from sexual harassment

as defined in G. L. cc. 151B and 151C); 603 Code Mass. Regs.

§ 26.07(2) (requiring public schools to strive to prevent sexual

harassment and to respond promptly to reports of its

occurrence). Zagaeski's conduct undermined these policies, as

well as one of the central purposes of the Reform Act: to

ensure an educational setting that safeguards, rather than

warps, a child's self-esteem. See G. L. c. 69, § 1, as

appearing in St. 1993, c. 71, § 27.

Of additional concern, teachers are in part responsible for

instilling core constitutional values in students in preparation

for their participation as citizens in a democracy. See Dupree,

15 Mass. App. Ct. at 539. A teacher who models sexually

harassing behavior in front of public school students as if it

is all in good fun undercuts our constitutional value of freedom

from gender discrimination. See O'Connell, 400 Mass. at 693.

Indeed, students who witness a teacher engage in such conduct

may come to believe that such conduct is acceptable in an

academic or professional setting. See Dupree, supra at 538,

quoting Faxon v. School Comm. of Boston, 331 Mass. 531, 534

(1954) ("As role models for our children [teachers] have an

'extensive and peculiar opportunity to impress [their] attitude

28

and views' upon their pupils"). Inculcation of those sorts of

values by teachers is not acceptable in our public schools.

The Reform Act specifically vested in principals the power

to dismiss teachers, subject to review and approval by

superintendents, in order to raise the accountability of school

officials for the success of their schools. See St. 1993,

c. 71, § 44. See also Pittsfield, 438 Mass. at 760; Higher

Educ. Coordinating Council/Roxbury Community College v.

Massachusetts Teachers' Ass'n/Mass. Community College Council,

423 Mass. 23, 29 n.6 (1996); 1992 House Doc. No. 5750, at 2. We

have long-recognized decisions regarding teacher employment as

central to effective school management. See Higher Educ. Coord.

Council, supra at 28-29; School Comm. of W. Springfield v.

Korbut, 373 Mass. 788, 794-795 (1977); Davis, 307 Mass. at 362.

Although undoubtedly a difficult decision, the superintendent

undertook a thorough investigation, determined that Zagaeski

engaged in conduct unbecoming a teacher, and dismissed him on

that ground. This determination was within the superintendent's

statutory authority and was not unwarranted in light of the

broader implications of Zagaeski's conduct and the purposes

underlying the Reform Act. See G. L. c. 69, § 1; G. L. c. 71,

§ 42.

b. Best interests of the pupils in the district and the

need to elevate performance standards. We further acknowledge

29

that the teacher dismissal statute does authorize the arbitrator

to engage in a substantive review of dismissal decisions insofar

as it requires arbitrators to consider the "best interests of

the pupils in the district and the need for elevation of

performance standards." See G. L. c. 71, § 42, par. 5. To

conclude otherwise would render the statutory mandate that the

arbitrator undertake these considerations effectively

meaningless. See Geller, 435 Mass. at 242-243 (Cowin, J.,

dissenting). However, we disagree that this statutory language

authorizes an arbitrator to draw on a teacher's past performance

to override a dismissal decision based on a teacher's conduct

having threatened the safety and welfare of his or her students.

If a teacher's past performance could be used as a basis on

which an arbitrator could award reinstatement -- because, as

here, the arbitrator concluded it was in the students' best

interests to have high performing teachers -- then the "need for

elevation of performance standards" and the "best interests of

the pupils" would come to mean the same thing. However, the

statute should not be construed to render one of the two

standards governing the arbitrator's review as redundant of the

other. School Comm. of Brockton v. Teachers' Retirement Bd.,

393 Mass. 256, 262 (1984), quoting 2A C. Sands, Sutherland

Statutory Construction § 46.06 (4th ed. 1973) ("[A] statute

should be construed so that effect is given to all its

30

provisions, so that no part will be inoperative or

superfluous").

The distinct meanings of these two standards can be

ascertained by reference to the other provisions of the teacher

dismissal statute and the stated purposes of the Reform Act.

See Saccone v. State Ethics Comm'n, 395 Mass. 326, 334-335

(1985) (statutes should be construed to constitute "harmonious

whole"; otherwise their purpose may be defeated [citation

omitted]). When the Legislature enacted the Reform Act, it

identified the importance of safeguarding students' "sense of

security or self-esteem" in the classroom as distinct from,

though equally as important as, the establishment and

achievement of specific educational performance goals. G. L.

c. 69, § 1, as appearing in St. 1993, c. 71, § 27. This

distinction between safety and well-being on one side and

academic achievement on the other is also mirrored in the

enumerated grounds on which a school district may dismiss a

professional status teacher. In one category, a school district

may dismiss a teacher for performance-based reasons including

"inefficiency," "incompetency," or failure to satisfy

performance standards. G. L. c. 71, § 42, par. 3. In the other

category, a school district may dismiss a teacher for conduct

that jeopardizes the well-being of students or the proper

functioning of the school community, including "conduct

31

unbecoming a teacher," "insubordination," or "incapacity." Id.

Therefore, the standards by which the arbitrator must review a

dismissal decision should be construed in light of this same

distinction.

Where the teacher conduct in issue is performance-based,

the arbitrator should consider the school district's decision

primarily in light of the need to raise performance standards.

However, when the conduct in issue has jeopardized the safety or

self-esteem of students in the classroom setting, the arbitrator

should consider the best interests of the pupils primarily in

light of the pupils' interest in a safe learning environment.

Here, the arbitrator permitted the pupils' interest in the

academic success of their school to override their interest in a

safe, supportive classroom environment. This determination was

in excess of the arbitrator's authority because it had the

effect of nullifying one of the stated purposes of the Reform

Act. The Legislature cannot have intended a teacher's past

academic performance to be used to justify reinstatement of a

teacher found to have engaged in conduct that created a hostile

learning environment for certain students. See Commonwealth v.

Parent, 465 Mass. 395, 409 (2013) (statutes may not be

interpreted so as to yield absurd results). Despite Zagaeski's

apparent success as a classroom teacher, that "track record"

should not be used to conclude that it is in the "best

32

interests" of students to reinstate a teacher who was found to

have violated the school's sexual harassment policy. 11 By

awarding reinstatement of Zagaeski based on an interpretation of

the "best interests of the pupils" to mean the same thing as

"the need to elevate performance standards," the arbitrator's

award overrode the superintendent's decision on an unauthorized

basis and runs contrary to the core purposes of the Reform Act

and the high standards of conduct the public expects from its

teachers.

11

Although a teacher's length of service and past

performance may be considered as factors mitigating against

dismissal under the rubric of "just cause" in collective

bargaining agreements, and the Reform Act replaced the phrase

"good cause" with "just cause" as an enumerated basis on which a

teacher may be dismissed, the teacher dismissal statute does not

permit an arbitrator to engraft an additional just cause

analysis onto each of the grounds enumerated in the statute on

which dismissal may be based. See St. 1993, c. 71, § 44. See

also School Dist. of Beverly v. Geller, 435 Mass. 223, 231, 233

& n.9 (2001) (Cordy, J., concurring). A plain reading of the

teacher dismissal statute makes clear that a school district may

dismiss a teacher for any of the enumerated bases "or other just

cause" (emphasis added). G. L. c. 71, § 42. Therefore, the

statute implies that dismissal based on any of the enumerated

grounds would be just cause, and "other just cause" stands alone

as an additional ground upon which dismissal may be based. The

phrase "other just cause" does not permit a reduction in the

penalty imposed for conduct constituting one of the other

enumerated grounds. See Geller, supra at 232-233 & n.9 (Cordy,

J., concurring). This interpretation of the statute comports

with a long history of judicial interpretation of similarly

worded provisions in collective bargaining agreements. Id. at

232 & n.8 (Cordy, J., concurring), and cases cited.

Consequently, the fact that the Reform Act replaced "other good

cause" with "other just cause" as a basis for dismissal, without

further change to the text of the provision, is not sufficient

to indicate a legislative intent to import an additional just

cause analysis into the other grounds permitting dismissal.

33

5. Conclusion. For the foregoing reasons, the order of

the Superior Court confirming the arbitrator's award is vacated,

and the case is remanded to the Superior Court for entry of an

order vacating the arbitration award.

So ordered.

LENK, J. (dissenting). The arbitrator's decision, fairly

read, reflects his conclusion that the plaintiff, the school

committee of Lexington, did not carry its burden of proving that

the defendant, Mark Zagaeski, engaged in the serious misconduct

necessary to establish "conduct unbecoming a teacher," one of

six enumerated grounds on which a teacher with professional

status can be dismissed under G. L. c. 71, § 42. Instead, based

on all of the evidence adduced at the arbitration hearing, he

determined that Zagaeski's isolated episode of inappropriate

behavior, while fitting nominally within that statutory

category, was only minor in nature. This was a determination

well within the scope of the arbitrator's authority. Hence, I

respectfully dissent, parting company as I do with the court's

independent assessment of the facts as found, its determination

that the conduct at issue could not be deemed anything other

than the requisite serious misconduct warranting dismissal, and

its conclusion that, by reinstating Zagaeski, the arbitrator

exceeded the scope of his authority. To the extent that the

arbitrator imposed alternative discipline upon Zagaeski,

however, I agree that he exceeded the scope of his authority.

While the school authorities did not satisfy the statutory

requirements when dismissing Zagaeski, it is solely within their

purview whether other discipline instead should be imposed. I

2

would accordingly remand the matter. See School Dist. of

Beverly v. Geller, 435 Mass. 223, 224 (2001) (Geller).

1. Statutory framework. General Laws c. 71, § 42,

delineates the circumstances under which teachers who have

attained professional status can be dismissed, as well as the

scope of arbitrators' review of such dismissals. Three

paragraphs of the statute are particularly relevant here. I

begin with an analysis of these paragraphs, informed by the

somewhat unsettled case law construing them, including both

Justice Cordy's concurring opinion and Justice Cowin's

dissenting opinion in Geller, supra. 1 See Atwater v.

Commissioner of Educ., 460 Mass. 844, 858 n.11 (2011).

General Laws c. 71, § 42, third par., enumerates six

grounds on which a teacher with professional status may be

dismissed: inefficiency, incompetency, incapacity, conduct

unbecoming a teacher, insubordination, failure to satisfy

performance standards, "or other just cause." General Laws

c. 71, § 42, fifth par., allocates to the district the burden of

proving one of these grounds, and provides that, "[i]n

determining whether the district has proven grounds for

1

No opinion in School Dist. of Beverly v. Geller, 435 Mass.

223 (2001) (Geller), garnered a majority. Justice Cordy

authored a concurring opinion, with whom Chief Justice Marshall

and Justice Sosman joined. Justice Ireland wrote a separate

opinion, concurring in the result, with which Justice Cordy also

joined. Justice Cowin dissented, and was joined by Justice

Greaney and Justice Spina.

3

dismissal . . . , the arbitrator shall consider the best

interests of the pupils in the district and the need for

elevation of performance standards."

If, in making such a determination, the arbitrator

concludes that the district failed to carry its burden of

proving an enumerated ground for dismissal, thereby rendering

the dismissal "improper under the standards set forth in [G. L.

c. 71, § 42,]" the sixth paragraph of the statute authorizes the

arbitrator to award certain remedies to the teacher, namely,

"back pay, benefits, reinstatement, and any other appropriate

non-financial relief or any combination thereof." 2

As the court recognizes, the question regarding an

arbitrator's authority to reinstate a teacher who has been found

to have engaged in conduct only nominally constituting an

enumerated ground for dismissal remains unresolved after Geller,

supra. This reflects in no small measure the deep division in

the Geller court as to the arbitrator's proper role, represented

by Justice Cordy's and Justice Cowin's opposing opinions.

Although neither opinion is entirely consonant with my own view

of the statute, both recognize, as I do, that the school

district does not satisfy its burden of proving the propriety of

the discipline imposed simply by showing facts that could

2

The arbitrator may not, however, award "punitive,

consequential, or nominal damages, or compensatory damages other

than back pay, benefits or reinstatement." G. L. c. 71, § 42,

sixth par.

4

conceivably amount to an enumerated ground for dismissal,

without regard to the gravity of the act said to have occurred.

Rather, under both Justice Cordy's and Justice Cowin's

interpretations of the statute, the arbitrator is assigned the

duty to determine whether the facts adduced in fact establish

"serious misconduct" warranting dismissal on an enumerated

ground. See Geller, supra at 231 n.7 (Cordy, J., concurring);

Geller, supra at 241 (Cowin, J., dissenting). In other words,

not all conduct that a school district may see fit to

characterize as constituting an enumerated ground for dismissal

will in fact rise to the level of serious misconduct that the

Legislature envisioned would justify terminating a teacher who

has attained professional status. It is the statutorily

appointed role of the arbitrator to determine whether proven

conduct does indeed rise to that level.

Indeed, that only "serious misconduct" will constitute an

enumerated ground for dismissal is implied by the Legislature's

insertion, in the 1993 amendment, of a new category of "other

just cause," and its simultaneous deletion of "other good cause"

as a ground for dismissal. See St. 1993, c. 71, § 44. As

Justice Cordy observed in Geller, supra at 233 n.9, "[i]t is

reasonable . . . to conclude from the substitution of the word

'just' for 'good' that the Legislature intended to limit the

broad range of conduct that had previously been considered as

5

warranting dismissal in this catchall category, to serious

misconduct." 3

According to Justice Cordy's view, however, once an

arbitrator determines that a school district has proved "serious

misconduct" amounting to an enumerated ground for dismissal,

"the arbitrator does not have the authority to judge whether

discharge is an excessive penalty for the violation committed."

Id. at 232 (Cordy, J., concurring). The arbitrator is

"preclude[d] . . . from conducting a further 'just cause'

analysis (e.g., weighing the teacher's prior record against the

misconduct for the purpose of justifying a different sanction)

3

Although the court asserts that the purpose of the

Education Reform Act of 1993 (Reform Act), which amended G. L.

c. 71, § 42, was not to enhance the employment rights of public

school teachers, ante at , there is also nothing to suggest

that the amendment was intended to diminish the rights of

teachers with professional status. If anything, insofar as the

shift from a "good cause" to a "just cause" standard imposed a

higher burden on schools, the Reform Act in fact provided

greater protection to teachers with professional status, by

limiting the circumstances under which they could be dismissed.

See Geller, supra at 233 n.9 (Cordy, J., concurring), and cases

cited (explaining that "good cause" had been understood to mean

"any ground which is put forward [by the supervising authority]

in good faith and which is not arbitrary, irrational,

unreasonable, or irrelevant to the . . . task of building up and

maintaining an efficient school system," whereas "just cause"

suggests "substantial misconduct which adversely affects the

public interest" [citations omitted]). Compare G. L. c. 71,

§ 42, as appearing in St. 1993, c. 71, § 44, with G. L. c. 71,

§ 42, as amended through St. 1988, c. 153, §§ 4-6.

Due regard for employment rights is hardly at odds with the

stated purposes of the Reform Act to which the court refers,

namely, to increase the accountability of educators and to

improve the quality of education provided in public schools.

See G. L. c. 69, § 1, as appearing in St. 1993, c. 71, § 27.

6

once he has found that one of the enumerated grounds for

dismissal has been proved." Id. at 234.

Justice Cowin, on the other hand, would have concluded that

the statute authorizes an arbitrator to determine "both whether

the grounds [for dismissal] alleged by the school district have

occurred and, if so, whether such grounds warrant dismissal."

Id. at 241 (Cowin, J., dissenting). According to Justice Cowin,

assessing whether the proven grounds warrant dismissal, or

merely a less severe penalty, is not only within the

arbitrator's discretion, but required by the statutory directive

that arbitrators consider "the best interests of the pupils in

the district and the need for elevation of performance

standards." See G. L. c. 71, § 42, fifth par.; Geller, supra at

242-243 & n.2 (Cowin, J., dissenting).

I agree with Justice Cowin that G. L. c. 71, § 42,

authorizes an arbitrator to assess whether the facts found

warrant dismissal. In my view, it is within the scope of an

arbitrator's authority to determine both whether the conduct

alleged by the school district in fact occurred, and, if it did,

to decide whether such conduct "r[o]se to the level of [serious]

misconduct contemplated by the statute as a ground for

dismissal." Geller, supra at 231 n.7 (Cordy, J., concurring).

In performing the latter task of determining whether the

district has proved grounds for dismissal, the statute requires

7

the arbitrator to take into account "the best interests of the

pupils in the district and the need for elevation of performance

standards." G. L. c. 71, § 42, fifth par.

The Legislature has provided for meaningful review by

accredited professional arbitrators, see G. L. c. 71, § 42,

fourth par., of decisions made by school authorities to

terminate teachers with professional status. This review is to

assure that such decisions are based only on the serious

misconduct that the statute details and, of necessity,

encompasses both a determination of what occurred and a

contextualized assessment of its gravity. The credentialed

arbitrator is thus tasked not only with finding facts, but also

with weighing those facts in conjunction with the mandatory

student-interest and performance criteria, see G. L. c. 71,

§ 42, fifth par., to ascertain whether dismissal is warranted.

An arbitrator who does this, and concludes that dismissal was

not in fact substantiated, does not thereby overstep his bounds

and usurp the role of school authorities. Rather, in so doing,

the arbitrator fulfills his or her statutorily mandated duty of

discerning whether the district sustained its burden of proving

an enumerated ground for dismissal. 4

4

Of course, there may be situations in which an

arbitrator's reinstatement of a teacher, after finding that the

school district had not sustained its burden, would violate

public policy, an independent ground to vacate an arbitrator's

award. See Massachusetts Highway Dep't v. American Fed'n of

8

Unlike Justice Cowin, however, I do not believe that the

statute empowers arbitrators to impose alternative penalties on

teachers, short of dismissal, that the arbitrator perceives to

be more proportional to the severity of the misconduct he or she

determined to have occurred. The sixth paragraph of the statute

sets out the actions that arbitrators are authorized to take if

they conclude that dismissal was "improper." Those actions are

remedial in nature, and are limited to awarding "back pay,

benefits, reinstatement, and any other appropriate non-financial

relief or any combination thereof"; the statute makes no express

provision for the exercise of an arbitrator's own judgment in

choosing an ostensibly fair punishment. See G. L. c. 71, § 42,

sixth par. The statute thus contemplates that an arbitration

hearing will have one of two outcomes: either the arbitrator

will determine that the district carried its burden, upholding

its dismissal decision, or the arbitrator will find that the

district did not carry its burden, reversing the district's

decision and awarding the teacher some form of relief. Should

the school district's dismissal decision be reversed, it remains

solely within the purview of the district to determine whether

State, County & Mun. Employees, Council 93, 420 Mass. 13, 16-19

(1995). The court does not rely on public policy grounds here,

and indeed, "[n]o public policy requires that a teacher be fired

in these circumstances." Geller, supra at 247 (Cowin, J.,

dissenting).

9

other discipline should then be imposed. See G. L. c. 71,

§ 42D.

In sum, I believe that it is the proper function of the

arbitrator to find and weigh the facts, and subsequently either

to reverse or to uphold a school district's dismissal decision,

but not to reduce the punishment imposed by the school. I now

turn to a discussion whether the arbitrator here acted within

the scope of his authority.

2. Arbitrator's finding that Zagaeski committed "nominal"

misconduct. In substantial reliance on footnote 7 of Justice

Cordy's concurring opinion in Geller, supra, the arbitrator

found, based on the undisputed facts, 5 that the school district

did not meet its burden of proving an enumerated ground for

dismissal. Footnote 7 states,

"We note that the arbitrator found [the

teacher's] actions to constitute serious misconduct

('totally inappropriate,' 'unacceptable,' which

5

Zagaeski was the only witness at the arbitration hearing;

neither the seventeen year old female student who brought

Zagaeski's comments to the school's attention nor other

witnesses with firsthand knowledge of the underlying events

testified. In addition to Zagaeski's uncontradicted testimony

(which "provided important context regarding what was going on

and being said immediately before, during, and after he made the

comments in question to the [seventeen] year old student,") the

arbitrator had before him a letter that Zagaeski had written

during the investigation to the assistant superintendent as well

as other statements he and his counsel made to the district's

representatives during that period. The arbitrator stated, "To

meet its burden of persuasion, the school district in this

proceeding has relied entirely upon what it asserts are facts as

admitted to by Dr. Zagaeski himself."

10

'cannot be condoned'), a finding consistent with the

evidence adduced at the arbitration hearing. This is

not the case of an arbitrator finding a teacher to

have engaged in minor misconduct that, however,

nominally fit within a category on which dismissal

could be based. In such circumstances, an

arbitrator's finding that the conduct did not rise to

the level of misconduct contemplated by the statute as

a ground for dismissal is one that would likely lie

within the scope of his authority."

Geller, supra at 231 n.7 (Cordy, J., concurring). The

arbitrator quoted this footnote in its entirety and used it to

frame his discussion of the import of Zagaeski's comments. At

the outset of his opinion, the arbitrator set forth a standard

of review that incorporated language from this footnote, noting

that both parties' briefs cited that standard as governing the

matter before him. 6

The arbitrator began his analysis by noting, rightly, that

Zagaeski's comments to the student regarding trading sexual

6

Although "the parties [cannot] properly authorize the

arbitrator to act beyond his statutory authority in any event,"

Geller, supra at 230 n.5 (Cordy, J., concurring), the standard

of review that the arbitrator set forth nonetheless sheds light

on the manner in which he undertook to analyze the facts at

hand. According to that standard,

"[I]f the arbitrator finds that the school

district has proven one of the six specifically listed

grounds for dismissal, and has proven that the

misconduct was serious rather than only minor in

nature, then the arbitrator must uphold the

termination decision, unless the arbitrator makes

specific and detailed findings that the 'best interest

of the pupils in the district . . .' warrant the

retention of the teacher notwithstanding the serious

misconduct which has occurred." (Emphasis supplied.)

11

favors for grades "obviously were inappropriate if taken

literally" and were inconsistent with the school district's

policy against sexual harassment. And, indeed, it goes without

saying that any insinuation that good grades are available for

barter, particularly in exchange for sexual favors, would be

wholly improper and have no place in the classroom.

But the arbitrator went on to make nuanced findings that

situated the exchange within the context of the "obviously

absurd joke" that the student had made to Zagaeski several days

before about paying him for a better grade, and another

student's comment about sexual favors, to which Zagaeski had

responded, "Don't be ridiculous." When the student again

reiterated her "ridiculous request" a couple days later,

Zagaeski "responded with a joking comment of his own," as a way

of referring to the recent exchange, something he considered to

be "like an inside joke" with the student.

Given the jesting context in which the remarks were made,

Zagaeski's lack of actual intent to solicit sexual favors from

the student, and the one-time nature of his behavior, the

arbitrator determined that Zagaeski's words essentially amounted

to "one ill-advised set of interrelated, joking comments, made

in response to ill-advised jokes initiated by his students," and

therefore only "nominally" fit within the category of conduct

unbecoming a teacher. However, the arbitrator did not, as the

12

court states, conclude that the school district had carried its

burden of establishing one of the six enumerated grounds for

dismissal. To the contrary, the arbitrator concluded that,

"[g]iven the relatively minor, and isolated character of Dr.

Zagaeski's misconduct, and his proven excellence as a teacher

over the course of his decade of work in the Lexington Public

Schools, the district has not proven grounds for

dismissal . . ." (emphasis supplied). As the Superior Court

judge observed, "[t]he arbitrator's findings regarding

Zagaeski's conduct appear to fit precisely within the scenario

set out by Justice Cordy in footnote 7 of [Geller, supra]." 7

The court acknowledges that this question, regarding an

arbitrator's authority to reinstate a teacher after finding that

he committed only nominal misconduct, was left open by Geller,

supra, but does not provide a direct answer. It instead engages

in its own assessment of the facts and concludes that,

notwithstanding the arbitrator's determination that Zagaeski

engaged in only nominal and isolated misconduct, it is not

7

Even if the arbitrator misapprehended the holding of

Geller, supra, his interpretation -- which the Superior Court

judge tracked -- was a reasonable one, particularly given the

fractured nature of the court's opinion in that case. And even

assuming that his interpretation was erroneous, "[a]bsent proof

of one of the grounds specified in G. L. c. 150C, § 11 (a), a

reviewing court is 'strictly bound by the arbitrator's factual

findings and conclusions of law, even if they are in error.'"

Atwater v. Commissioner of Educ., 460 Mass. 844, 848 (2011),

quoting School Comm. of Lowell v. Robishaw, 456 Mass. 653, 660

(2010).

13

possible that the conduct at issue was anything other than

serious, and, as such, the arbitrator acted outside of his

authority in "adjusting" the school's disciplinary decision. In

so doing, the court inappropriately substitutes its own judgment

for that of the arbitrator.

The court appears to share the school committee's

conviction that Zagaeski's very utterance of the words to the

student itself suffices to establish serious misconduct. But

words alone are only a piece of human communication. Words

shorn of context, taken only literally, are at a far remove from

language embedded in circumstance. In any attempt to understand

an event after the fact, establishing who said what generally

will only begin to reveal what actually happened. Indeed,

determining what actually happened, and the gravity of what

actually happened, is precisely what this arbitrator was called

upon to do and did. It is not for us to substitute our view for

his.

Given my view that the statute authorizes the arbitrator to

assess whether the facts as found warrant dismissal, and keeping

in mind the "well-settled principle of law that arbitration

awards are subject to a narrow scope of review," School Comm. of

Chicopee v. Chicopee Educ. Ass'n, 80 Mass. App. Ct. 357, 364

(2011), I cannot accept the court's analysis or conclusion in

14

this regard. 8 I would instead squarely hold that where, as here,

an arbitrator determines that the misconduct at issue was of a

minor or nominal nature and, as such, did not constitute the

serious misconduct necessary to satisfy an enumerated ground for

dismissal, he acts well within the scope of his authority when

concluding that the district has not sustained its burden of

8

Although arbitrators' factual findings are "not open for

our review," School Comm. of Lowell v. Robishaw, supra at 664,

the arbitrator's determination here that Zagaeski's isolated

instance of improper joking with a student constituted minor

misconduct, only nominally "conduct unbecoming a teacher," is,

in any event, supported by the record, particularly when

compared to conduct that has been deemed to fit the rubric of

conduct unbecoming a teacher in other cases. For example, in

Atwater v. Commissioner of Educ., supra at 849-850, the

arbitrator found that the teacher invited a student to his house

and while there, "inappropriately touched [her], touching her

back, reaching down her shirt, and touching her buttocks in a

sexual manner as well as hugging the student in an attempt to

restrain her from leaving." In addition, the teacher "made

numerous attempts" to contact the student via electronic mail

and telephone, through her friends, and by following her vehicle

and visiting her home, which the arbitrator labeled "serious"

misconduct. Id. at 850, 852.

Similarly, in Geller, supra at 226-227 & n.3, the

arbitrator found that the teacher, who had received a warning

from school authorities prior to his dismissal, engaged in

"unacceptable" conduct over the course of seven months,

culminating in three separate incidents involving the use of

physical force against students. Quite unlike here, the

arbitrator in that case "found facts and described those facts

in a manner that clearly establishe[d the teacher's] conduct to

be 'conduct unbecoming a teacher.'" Id. at 231.

Thus, both these cases involved a pattern of serious

misconduct over a prolonged period of time, distinguishable from

the isolated and quite dissimilar nature of the misconduct at

issue in this case.

15

proving grounds for dismissal. See G. L. c. 71, § 42, fifth

par.

Far from an arbitrary substitution of the arbitrator's own

judgment for that of the school district, such a determination

amounts to a conclusion that the dismissal was "improper," as

per G. L. c. 71, § 42, sixth par. Upon such a finding of

impropriety, the arbitrator is empowered to "award back pay,

benefits, reinstatement, and any other appropriate non-financial

relief or any combination thereof." G. L. c. 71, § 42, sixth

par. Thus, I believe that the arbitrator here did not exceed

his authority in reinstating Zagaeski, particularly in light of

his clear reliance on footnote 7 of Justice Cordy's concurrence

in Geller, supra, which essentially provided a roadmap for his

decision. I would therefore leave intact the reinstatement

award here. 9

3. Arbitrator's consideration of "best interests of the

pupils in the district and the need to elevate performance

standards". General Laws c. 71, § 42, fifth par., instructs

arbitrators to "consider the best interests of the pupils in the

9

Whether the arbitrator exceeded his authority in

reinstating Zagaeski is the central issue that the parties

dispute in the case, and, as I have explained, I would hold that

he did not. Because, however, as discussed supra, I do not

believe that the statute empowers arbitrators to impose

alternative discipline short of dismissal, I would hold that the

arbitrator lacked authority to order two days of unpaid

suspension, and remand to the Superior Court for entry of an

order that the arbitrator's decision be revised accordingly.

16

district and the need for elevation of performance standards" in

determining whether the school district has proved grounds for

dismissal. The court decouples this consideration into two

separate criteria, applicable to different enumerated grounds

for dismissal, in a manner that I believe is not supported by

the statutory language and will prove unworkable in practice.

The court breaks the six enumerated grounds warranting

dismissal, set forth in G. L. c. 71, § 42, third par., into two

categories of misconduct, namely, "performance-based" misconduct

on the one hand, and misconduct that "jeopardize[s] the safety

or self-esteem of students in the classroom setting" on the

other. Ante at . The category of misconduct at issue, the

court holds, determines whether the arbitrator is to consider

"the need to raise performance standards," or "the best

interests of the pupils primarily in light of the pupils'

interest in a safe learning environment" in determining whether

the school district has proved grounds for dismissal. Ante at

. The court concludes that the arbitrator here exceeded his

authority by applying the former criterion, where the conduct at

issue fell into a category demanding application of the latter.

By dividing the six enumerated grounds into two classes of

misconduct, the court creates an artificial distinction that is

not borne out by the statute. The statute simply enumerates the

grounds warranting dismissal in one unbroken list, and provides

17

generally that "the arbitrator shall consider the best interests

of the pupils in the district and the need for elevation of

performance standards." See G. L. c. 71, § 42, third & fifth

pars. It does not direct arbitrators to cabin their

consideration of these factors depending on the type of

misconduct determined to have occurred.

Moreover, it is far from clear that, in practice,

"performance-based" conduct is readily distinguishable from

misconduct that "has jeopardized the safety or self-esteem of

students in the classroom setting." Neither is it evident that

misconduct grouped in the latter category, including misconduct

bearing the somewhat indeterminate label of "conduct unbecoming

a teacher," will in fact jeopardize students in such a manner. 10

10

Indeed, it is difficult to see how the conduct at issue

in MacKenzie v. School Comm. of Ipswich, 342 Mass. 612, 616

(1961), which the court cites, ante at -- a teacher's

muttering the words "son of a bitch" to the superintendent at a

meeting of school personnel -- "jeopardized the safety or self-

esteem of students in the classroom setting." In cases such as

MacKenzie v. School Comm. of Ipswich, supra, it is not clear

whether the court's formulation directs arbitrators to consider

"the need to raise performance standards" or "the best interests

of the pupils primarily in light of the pupils' interest in a

safe learning environment."

In any event, MacKenzie v. School Comm. of Ipswich, supra,

was decided prior to the Legislature's enactment of the Reform

Act in 1993, which amended the statutory scheme governing the

dismissal of teachers. See St. 1993, c. 71, § 44. Under the

old version of the statute, teacher dismissal was measured

against a "good cause" standard, rather than the "just cause"

benchmark that currently prevails. Compare G. L. c. 71, § 42,

as appearing in St. 1993, c. 71, § 44, with G. L. c. 71, § 42,

as amended through St. 1988, c. 153, §§ 4-6. The court cites

18

In any event, the court's conclusion that the arbitrator

here put undue weight on "the pupils' interest in the academic

success of their school" simply misconstrues the arbitrator's

findings. Ante at . As an initial matter, the arbitrator's

weighing of the mandatory student-interest and performance

criteria was not necessary to his decision, as he found that the

school district had not sustained its burden of proving an

enumerated ground for dismissal because the misconduct at issue

was minor, not serious. After so finding, the arbitrator went

on to state that, "[e]ven if Dr. Zagaeski's words toward [the

student] were characterized as serious rather than a minor act

of conduct unbecoming a teacher (which is not the view of this

arbitrator), . . . the district has not proven grounds for

dismissal because the best interests of the pupils in the

district and the need for elevation of performance standards

warrant the retention of Dr. Zagaeski."

Instead of "permitt[ing] the pupils' interest in the

academic success of their school to override their interest in a

safe, supportive classroom environment," as the court suggests,

this case as providing an example of "conduct unbecoming a

teacher" that has persisted through the amendment. Ante at .

To my mind, however, the question whether the conduct at issue

in the pre-amendment case of MacKenzie v. School Comm. of

Ipswich, supra, would constitute "just cause" for dismissal

under the amended version of G. L. c. 71, § 42, is not free from

doubt. See Geller, supra at 233 n.9 (Cordy, J., concurring)

(Legislature's substitution of "just cause" for "good cause"

demonstrates intent to restrict conduct justifying dismissal to

"serious misconduct").

19

the arbitrator properly treated the statutory criteria as

interconnected. The arbitrator noted the "rapport" that

Zagaeski had developed with his students over the course of the

school year, as well as the atmosphere of "mutual respect" that

he had cultivated in his classroom, in part through the use of

humor and a less hierarchical approach to teaching. Zagaeski

"tried to create a culture of comfort in which the students

would feel safe and at ease" and "developed a teaching style

designed to meet the students at the level they understood, in

an environment that made them comfortable and helped them to

achieve academically." This teaching style contributed to

Zagaeski's "record of impressive accomplishment in helping a

relatively challenged group of students to achieve success."

Therefore, in light of Zagaeski's "proven excellence as a

teacher over the course of his decade of work in the Lexington

Public Schools," the arbitrator concluded that "the best

interests of the pupils and the need for elevation of

performance standards warrant the retention of Dr. Zagaeski."

In so doing, the arbitrator acted within his authority by

considering in an integrated manner the two factors that G. L.

c. 71, § 42, fifth par., mandates be taken into account.

In sum, I would hold that the arbitrator was authorized to

conclude, as he did, that Zagaeski had not engaged in the

serious misconduct necessary in the first instance to establish

20

the statutory ground of conduct unbecoming to a teacher, that

consideration of the mandatory best-interest and performance

factors led to the same result, and that the school district had

therefore failed to carry its burden of proving a ground

warranting dismissal. For these reasons, I respectfully

dissent.