Opinion
No. CV-05-4006598S
October 9, 2007
MEMORANDUM OF DECISION
The plaintiff, Charles Ubaldi, brought this breach of contract action alleging that the Defendant, Waterbury Board of Education, breached Plaintiff's employment contract by failing to give Plaintiff a hearing prior to termination. The Plaintiff was hired as a social studies teacher in July of 2004 for the 2004-2005 school year. (Plaintiff's Exhibit 5 — Teacher's Contract.) He was hired at an annual salary of $45,355.00. The teacher's contract states that the terms are subject to, among other things, state statutes and the "completion of proper certification requirements." (Plaintiff's Exhibit 5). The Plaintiff, Charles Ubaldi, was not certified as a teacher at anytime during the 2004-2005 school year. (Tr. Transcript, 7/18/07, p. 25.)
In December of 2004, Mr. Ubaldi was advised by Barbara Carrington-Lawlor, the principal, that there was a question about his certification. (Tr. Transcript, 7/18/07, p. 11.) On January 27, 2005, the Personnel Director sent Mr. Ubaldi a letter advising him that they had not received his certification and if it was not secured by February 27, 2005, his position would be changed to substitute status. (Plaintiff's Exhibit 9.)
The letter also stated that it was Mr. Ubaldi's responsibility to obtain the certification. Mr. Ubaldi testified that he was aware of the need to obtain his certification. (Tr. Transcript, 7/18/07, p. 26.)
On February 28, 2005, the Personnel Director, Michael Eagen, wrote to Mr. Ubaldi indicating that his status would be changed to substitute because Mr. Ubaldi had not obtained his certification. (Plaintiff's Exhibit 10.) The letter also indicated that Mr. Ubaldi, in fact, applied for "Extension of substitute teacher authorization beyond the 40-day limit." (Plaintiff's Exhibit 10.) The letter states that if Mr. Ubaldi does not qualify for the extension, he would be paid a substitute rate. (Plaintiff's Exhibit 10.)
Mr. Ubaldi's status was changed to long-term substitute and his pay was reduced. No grievance was filed regarding his change in status. (Tr. Transcript, 7/18/07, p. 28.) There was no evidence that Mr. Ubaldi challenged the change in position in any manner. On March 1, 2005, Mr. Ubaldi's evaluator, Joseph Macary, Supervisor of Social Services, recommended that he not be renewed to teach. (Plaintiff's Exhibit 3.) This recommendation was also made by the principal, Barbara Carrington-Lawlor.
On March 10, 2005, Mr. Ubaldi was advised by letter from David Snead, Superintendent of Schools, that his contract would not be renewed. (Plaintiff's Exhibit 6.) The letter also stated that the Plaintiff had a right to request a hearing on the non-renewal which he exercised. On March 16, 2005, Michael J. Eagen, the Personnel Director of the Waterbury Schools, wrote to the Plaintiff indicating that the March 10th letter was issued in error, (Plaintiff's Exhibit 7) and stating that the Plaintiff as a non-certified substitute teacher was not entitled to the limited appeal rights afforded to non-tenured teachers. On March 22, 2005, Attorney Eagen wrote to Mr. Ubaldi restating his position but outlined the reasons for the non-renewal. (Plaintiff's Exhibit 8.) 1) Your failure to obtain appropriate certification in a timely fashion and 2) Failure to meeting District standards for your teaching performance . . . The court is satisfied the March 10, 2005 letter was a mistake because it was well known the plaintiff wasn't certified.
MR. UBALDI WAS NOT A TEACHER WITH RIGHTS UNDER CONNECTICUT GENERAL STATUTES SECTION 10-151(c)
A "teacher" is a certified professional employed by the Board of Education for at least 90 days in a position requiring certification pursuant to Connecticut General Statutes Section 10-151(a)(2). A teacher, without tenure, may be terminated pursuant to Connecticut General Statutes Section 10-151(c).
There is no dispute that Mr. Ubaldi did not have his certification at anytime throughout the school year. He, therefore, was not a "teacher" under Section 10-151 and was not entitled to a hearing, the Board did not breach the contract by failing to schedule a hearing.
A person must meet three requirements in order to be considered a teacher under the statute: (1) they must hold a position below the rank of superintendent; (2) the employee must be certified and employed by a board of education for at least ninety days; and (3) the employee must hold a position which required certification issued by the state board of education. Cimochowski v. Hartford Public School, 261 Conn. 287, 292 (2002). (Emphasis added). The Plaintiff admits that he was not certified. Therefore, he does not meet the statutory definition of teacher.
The Plaintiff also claims that he was a "teacher" even though he was changed to substitute status because his duties did not change. Attorney Eagen testified that a long-term substitute has the same duties as a teacher. Regardless of his duties, Mr. Ubaldi was not a teacher under the statute. In fact, Mr. Ubaldi received authorization from the State to be a long-term substitute for more than 40 days. (Tr. Transcript 9/12/07, p. 23-24; Plaintiff's Exhibit 10.)
The Supreme Court has held that a teacher who does not have the certification is not eligible for a hearing prior to termination. Ames v. Board of Education, 167 Conn. 444, 448 (1975). In Ames, supra, as in the present case, the Plaintiff failed to obtain the proper certification despite repeated requests by the Board. Ames, supra, at 445.
The Plaintiff, in Ames, supra, argued that the three years he was not certified should still be considered as part of his years as a teacher and counted toward tenure. The Supreme Court found that while the Plaintiff was employed as a teacher while not certified, the employment was contrary to the law and he had no legal status as a teacher during that time. Ames, supra, 167 Conn. at 448.
As in the present case, the Plaintiff in Ames, supra, argued that the Board knew that he was not certified during that time period and, therefore, could not invalidate the agreement. Ames, supra, at 448-49. The Supreme Court rejected that argument. Ames, supra, at 449.
Connecticut General Statutes Section 10-145 requires that teachers who are employed in any school be certified. In fact, without certification, a teacher is not entitled to receive a salary under Section 10-145(a) Connecticut ". . . General Statutes § 10-145 makes certification essential for retention of a teaching position regardless of the actual performance of the teacher lacking an appropriate certificate. Thus, the lack of an appropriate certification is sufficient cause for termination." Loftus v. Board of Education, 200 Conn. 21, 28, Ftn. 6 (1986). In the present case, the Plaintiff's lack of certification required dismissal. Loftus, supra, 200 Conn. at 29-30.
The sole argument urged by the plaintiff is the Doctrine of Waiver. Connecticut General Statutes 10-151 governs teacher employment contracts in Connecticut. That statute provides, in part, that "the contract of employment of a teacher who has not attained tenure may be terminated at any time for any of the reasons enumerated in subdivisions (1) to (6), inclusive, of subsection (d) of this section; otherwise the contract of such teacher shall be continued into the new school year unless such teacher receives written notice by April first in one school year that such contract will not be renewed for the following year." The statute goes on to say that "such teacher, upon written request filed with the board of education within twenty days of the notice of termination, or nonrenewal shall be entitled to a hearing . . ."
The teacher's right to request a hearing is codified in the contract between the plaintiff and defendant. "The teacher may, upon written request filed with the Board within ten days after the receipt of any notice from the Board of its intention to terminate or to not renew this contract, be entitled to a hearing before the Board to be held within fifteen days of such request . . ." Plaintiff's Exhibit 5.
The defendant claims that it was not obligated to provide a hearing to the plaintiff because the plaintiff has failed to meet one of the conditions of the contract, regarding certification requirements. The contact provides that it is "subject to completion of proper certification requirements." The defendant claims, in its answer, that the contract is not enforceable since the plaintiff failed to meet one of its conditions. There is no dispute that the plaintiff did not become certified. The only issue in the case is whether the defendant, by its conduct, waived this condition. The court finds that it did not.
Waiver "is the intentional relinquishment or abandonment of a known right or privilege." AFSCME, Council 4, Local 704 v. Department of Health, 272 Conn. 617, 623 (2005). Contractual rights may be waived. Id. "The general rule is that a party for whose benefit a provision is intended may waive his rights under such provision." Lanna v. Greene, 175 Conn. 453, 458 (1978). Waiver "involves the idea of assent, and assent is an act of understanding." McKay v. Aetna Life Insurance, 118 Conn. 538, 547 (1934). "This presupposes that the person to be affected has knowledge of his rights, but does not wish to assert them. Intention to relinquish must appear, but acts and conduct inconsistent with intention to terminate the contract are sufficient." Id.
THE BOARD DID NOT WAIVE THE STATUTORY REQUIREMENT OF CERTIFICATION
Despite the legal requirement that the Plaintiff be certified in order to be entitled to the appeal rights under 10-151(c), the Plaintiff argues that the Board "waived" the legal requirements of the statutes. The Plaintiff did not introduce any evidence that the Board waived the mandatory statutory requirement that he be certified.
The Teacher's contract specifically states that it is subject to the Connecticut General Statutes and ". . . completion of proper certification requirements." (Plaintiff's Exhibit 5.) The Plaintiff's reply to the Defendant's Special Defenses admits that the contract was "subject to his completion of proper certification requirements." Mr. Ubaldi testified that he knew about the certification requirement. He was told in December of 2004 that he did not have his certification. Attorney Eagen wrote to him in January of 2005 and told him that, if he did not obtain his certification, he would be changed to substitute status. (Plaintiff's Exhibit 9.) He was told again in February and he was, in fact, changed to substitute status. (Plaintiff's Exhibit 10.) Mr. Ubaldi did not challenge the change to long-term substitute status.
The certification requirement is not a right or privilege belonging to the Board of Education. It is a mandated, statutory requirement of the State Board of Education. (Connecticut General Statutes 10-145.) All teachers are required to be certified. State Board of Labor Relations v. West Hartford Board of Education, 177 Conn. 68, 73 (1979) (Summer school teachers must be certified).
The Plaintiff's waiver claim is also defeated by the Plaintiff's own conduct. Upon being notified that his status was being changed to substitute, he did not file a grievance or complain in any way. He accepted the change in status and was, therefore, no longer entitled to any protection of a certified non-tenured teacher.
WAIVER OF CERTIFICATION IS NOT LEGALLY PERMITTED
The Board of Education cannot waive the statutory requirement that the Plaintiff be certified. In Cipu v. North Haven Board of Education, 32 Conn.Sup. 264 (1974), the Plaintiff argued that he was a tenured teacher, in part, because the Board told him he was tenured as of a certain year. During his termination hearing, the Board first treated the Plaintiff as tenured and then, upon realizing that he may not be under the statute, declined to rule as to whether he was tenured. Cipu, supra, at 266. Cipu argued that it did not matter whether he was tenured under the statutes because the Board treated him as tenured and gave him a contract based upon such tenure. Cipu, supra, at 268, 270. Finding that the statutory compliance is a prerequisite to being tenured, the trial court held:
CT Page 16886
Accordingly, this court finds that the plaintiff did not and could not acquire tenure by virtue of grant from the North Haven board of education since statutory compliance is a prerequisite to tenure. The probationary period being a testing period begins with the date of appointment under a regular teaching certificate. That statutory obligation cannot be waived by a board of education nor can a mistake by a board of education with reference to its obligations under the statute estop it from subsequently raising the issue of statutory tenure in a jurisdictional pleading. Parenthetically, the court finds absent in the factual situation presented here a key element in the transitional estoppel equation, namely a prejudicial change of the party claiming estoppel. Novella v. Hartford Accident Indemnity Co., 163 Conn. 552, 563.
If the plaintiff's contention were to be upheld, local boards of education could favor unqualified teachers and ignore regularly qualified and state certified teachers, thus circumventing the tenure statute adopted by the legislature. Without tenure, the plaintiff is without the right to appeal.
Cipu v. North Haven, supra, 32 Conn.Sup. at 271.
The certification requirement cannot be waived. Further, the Plaintiff cannot claim any prejudice in that he was properly denied a hearing. The Plaintiff was not a teacher under the statute.
The statute makes no provision for waiving the certification requirement. Section 10-145(a) specifically states, "No teacher . . . shall be employed in any of the schools . . . unless such person possesses an appropriate state certificate, nor shall any such person be entitled to any salary unless such person can produce such certificate . . ." Therefore, not only is there no evidence that the requirement was waived, such waiver is not permitted under state law.
The Teacher's contract specifically states that it is subject to the Connecticut General Statutes and ". . . completion of proper certification requirements." (Plaintiff's Exhibit 5.) Mr. Ubaldi testified that he knew about the certification requirement. He was told in December of 2004 that he did not have his certification. Attorney Eagen wrote to him in January of 2005 and told him that, if he did not obtain his certification, he would be changed to substitute status. (Plaintiff's Exhibit 9.) He was told again in February and he was, in fact, changed to substitute status. (Plaintiff's Exhibit 10.) Mr. Ubaldi did not challenge the change to long-term substitute status.
For the foregoing reasons, the Defendant did not breach the Plaintiff's contract and judgment shall enter for the Defendant.