Advisory Opinion on School Nurses and Eligibility for Professional Teacher Status
(M.G.L. c.71, § 41, as amended by Chapter 267 of the Acts of 2006)

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This advisory responds to questions the Department of Elementary and Secondary Education has received about Chapter 267 of the Acts of 2006, An Act Granting School Nurses Eligibility for Professional Teacher Status. The House and Senate approved the law on July 24, 2006, over the Governor's objections, and it took effect on October 22, 2006.

Chapter 267 amends the statute on professional teacher status, Mass. Gen. Laws chapter 71, section 41, by inserting after the word "counselor" in line 2, the words, "school nurse." As a result of this 2006 amendment, the first paragraph of M.G.L. c. 71, § 41, now reads as follows:

For the purposes of this section, a teacher, school librarian, school adjustment counselor, school nurse, school social worker or school psychologist who has served in the public schools of a school district for the three previous consecutive school years shall be considered a teacher, and shall be entitled to professional teacher status as provided in section forty-two. The superintendent of said district, upon the recommendation of the principal, may award such status to any teacher who has served in the principal's school for not less than one year or to a teacher who has obtained such status in any other public school district in the commonwealth. A teacher without professional teacher status shall be notified in writing on or before June fifteenth whenever such person is not to be employed for the following school year. Unless such notice is given as herein provided, a teacher without such status shall be deemed to be appointed for the following school year.

Following are the questions we have received relating to the new law, and our answers to them. Please note that no court has yet addressed the application of the 2006 amendment to school nurses and professional teacher status.¹ This advisory reflects our best judgment based on the language of the statute and existing case law. The Legislature or a future court decision may clarify ambiguities in the statute.

1. How does the 2006 amendment affect school nurses?

   As a result of the 2006 amendment, a school nurse "who has served in the public schools of a school district for the three previous consecutive school years" shall, for purposes of M.G.L. c. 71, § 41, be considered a teacher "entitled to professional teacher status as provided in section forty-two" of chapter 71.

2. What is "professional teacher status?"

   Pursuant to M.G.L. c. 71, § 42, a teacher is a probationary employee for the first three consecutive school years of employment.² A teacher who has served in the public schools of a school district for the three previous consecutive school years is deemed to have earned "professional teacher status," which is sometimes referred to as tenure. M.G.L. c. 71, § 42, provides rights to a teacher with professional teacher status with respect to dismissal, arbitration and "bumping" in case of layoffs, as follows:

   … A teacher with professional teacher status, pursuant to section forty-one, shall not be dismissed except for inefficiency, incompetency, incapacity, conduct unbecoming a teacher, insubordination or failure on the part of the teacher to satisfy teacher performance standards developed pursuant to section thirty-eight of this chapter or other just cause.

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

   At the arbitral hearing, the teacher and the school district may be represented by an attorney or other representative, present evidence, and call witnesses and the school district shall have the burden of proof. In determining whether the district has proven grounds for dismissal consistent with this section, the arbitrator shall consider the best interests of the pupils in the district and the need for elevation of performance standards.

   The arbitrator's decision shall be issued within one month from the completion of the arbitral hearing, unless all parties involved agree otherwise, and shall contain a detailed statement of the reasons for the decision. Upon a finding that the dismissal was improper under the standards set forth in this section, the arbitrator may award back pay, benefits, reinstatement, and any other appropriate non-financial relief or any combination thereof. Under no circumstances shall the arbitrator award punitive, consequential, or nominal damages, or compensatory damages other than back pay, benefits or reinstatement. In the event the teacher is reinstated, the period between the dismissal and reinstatement shall be considered to be time served for purposes of employment. The arbitral decision shall be subject to judicial review as provided in chapter one hundred and fifty C. With the exception of other remedies provided by statute, the remedies provided hereunder shall be the exclusive remedies available to teachers for wrongful termination. The rules governing this arbitration procedure shall be the rules of the American Arbitration Association as pertains to arbitration.

   Neither this section nor section forty-one shall affect the right of a superintendent to lay off teachers pursuant to reductions in force or reorganization resulting from declining enrollment or other budgetary reasons. No teacher with professional teacher status shall be laid off pursuant to a reduction in force or reorganization if there is a teacher without such status for whose position the covered employee is currently certified. No teacher with such status shall be displaced by a more senior teacher with such status in accordance with the terms of a collective bargaining agreement or otherwise unless the more senior teacher is currently qualified pursuant to section thirty-eight G for the junior teacher's position.

3. When do a school nurse's years of service start to count for purposes of professional teacher status?

   The legislation does not address this question. A school district could take the position that only a school nurse's years of consecutive service on and after October 22, 2006 count towards professional teacher status. We believe it is prudent, however, for school officials to assume that service rendered by a school nurse before October 22, 2006 does count towards acquisition of professional teacher status, and that an appropriately licensed school nurse who was employed by the district for the three complete school years prior to the 2006-07 school year, acquired professional teacher status as of October 22, 2006.³

   Absent some legislative clarification, this question is likely to be resolved by a court or an arbitrator in an individual case. The plain language of the statute as amended (a "school nurse…who has served in the public schools of a school district for the three previous consecutive school years…shall be entitled to professional teacher status as provided in section forty-two") would provide a basis for a judge or arbitrator to rule that an eligible school nurse who was employed by a district for at least the three previous consecutive school years acquired professional teacher status on October 22, 2006, by operation of law. In that case, the school nurse would be entitled to the procedural protections of G.L. c. 71, § 42.

   Consequently, we advise school officials to assume that any school nurse who was employed by the district, with the appropriate license, for all of the 2003-04, 2004-05, and 2005-06 school years and whose employment continues in the 2006-07 school year, has met the statutory requirement and acquired professional teacher status on October 22, 2006.⁴

4. May a school district grant professional teacher status to a school nurse who has served in the district for less than the three previous consecutive school years?

   Yes. The superintendent of schools has discretion under M.G.L. c. 71, § 41, to award professional teacher status to a teacher (including a school nurse) as follows:

   The superintendent of said district, upon the recommendation of the principal, may award such status to any teacher who has served in the principal's school for not less than one year or to a teacher who has obtained such status in any other public school district in the commonwealth.

   Just as a superintendent, upon the recommendation of the principal, may grant "early" professional teacher status to a teacher who has served in one of the district's schools for not less than one year or to a teacher who was granted professional teacher status by another district, superintendents may now grant "early" professional teacher status to similarly situated school nurses.

5. Must a school nurse be certified/licensed as an educator under M.G.L. c. 71, § 38G, is order to be eligible for professional teacher status? What about school nurses who are "grandfathered?"

   The state law on certification/licensure of educators, M.G.L. c. 71, § 38G, reads in relevant part as follows:

   No person shall be eligible for employment as a teacher, guidance counselor, director, school psychologist, school adjustment counselor, school social worker, school nurse, library media specialist, school business administrator, principal, supervisor, director, assistant superintendent of school, and superintendent of schools by a school district unless he has been granted by the commissioner a provisional, or standard certificate with respect to the type of position for which he seeks employment; provided, however, that nothing herein shall be construed to prevent a school committee from prescribing additional qualifications; and provided further, that a superintendent may upon request be exempt by the commissioner for any one school year from the requirement in this section to employ certified personnel when compliance therewith would in the opinion of the commissioner constitute a great hardship in securing teachers for that school district. During the time that such a waiver is in effect, service of an employee of a school district to whom the waiver applies shall not be counted as service in acquiring professional teacher status or other rights under section forty-one.

   Proper certification/licensure is a prerequisite for legal employment by a school district, unless the district has requested and received a waiver from the Commissioner of Education. A school employee's service under a waiver issued pursuant to M.G.L. c. 71, § 38G, does not count towards professional teacher status. In other words, proper certification/licensure is a prerequisite to counting years of service towards professional teacher status. The Supreme Judicial Court affirmed this principle in a case decided under the previous tenure law, Luz v. School Comm. of Lowell, 366 Mass. 845, 313 N.E. 2d 925 (1985).

   In general, school nurses who are employed by school districts must be certified/licensed by the Department of Elementary and Secondary Education under M.G.L. c. 71, § 38G. The Education Reform Act, however, exempts from the certification requirements anyone who was employed as a school nurse on or before June 18, 1993. See section 92 of Chapter 71 of the Acts of 1993 (as amended by section 19A of Chapter 126 of the Acts of 1994). These nurses are considered "grandfathered," and they may be employed as school nurses in public schools even though they are not certified. In 1997 the Legislature amended this provision by adding that anyone who was employed as a school nurse on or before September 1, 1993, and who had five years of experience as a registered nurse, could obtain standard certification without having to meet the certification requirements, as long as the nurse applied for certification by October 1, 1999. See Chapter 220 of the Acts of 1997.

   In our opinion, school nurses are eligible to count years of service towards professional teacher status as long as during those years they were either certified/licensed by the Department of Elementary and Secondary Education as a school nurse or "grandfathered" by operation of state law. In both cases the school nurse is deemed to be qualified for employment by a school district in that role and therefore should get the benefit of the amendment to the professional teacher status law. This approach is consistent with the decision of the Supreme Judicial Court in Rantz v. School Comm. of Peabody, 396 Mass. 383, 486 N.E. 2d 44 (1985) (educator who was exempt from the certification requirement under a "grandfather" clause was eligible for tenure after three consecutive years of service).

6. In some communities, nurses who work in the schools are public health nurses who are employed by the local board of health rather than by the school committee. Must a school nurse be employed by the school committee in order to be eligible for professional teacher status?

   In our opinion, the answer is yes. The premise of the statute on professional teacher status is that the teachers and other school personnel listed in M.G.L. c. 71, § 42, are employed by the school district. School committees have authority under M.G.L. c. 71, § 53, to "appoint one or more school physicians and registered nurses." If the school committee has appointed the school nurse, then the nurse is a school district employee and sections 41 and 42 of M.G.L. c. 71 apply. If the nurse is an employee of the local board of health, however, the statutes on professional teacher status do not apply.

7. In the case of a layoff of school nurses (for example, due to budget cuts or school closings), does a school nurse with professional teacher status have the right to displace or "bump" a less senior school employee?

   Pursuant to M.G.L. c. 71, § 42, a school district may, for budgetary reasons, lay off a teacher (including a school nurse) with professional teacher status. The statute provides that a teacher (or school nurse) with professional teacher status may in case of a reduction in force or reorganization "bump" an employee without professional teacher status, within certain limits including appropriate certification/licensure. The relevant paragraph of § 42 reads as follows:

   Neither this section nor section forty-one shall affect the right of a superintendent to lay off teachers pursuant to reductions in force or reorganization resulting from declining enrollment or other budgetary reasons. No teacher with professional teacher status shall be laid off pursuant to a reduction in force or reorganization if there is a teacher without such status for whose position the covered employee is currently certified. No teacher with such status shall be displaced by a more senior teacher with such status in accordance with the terms of a collective bargaining agreement or otherwise unless the more senior teacher is currently qualified pursuant to section thirty-eight G for the junior teacher's position.

   Under the statute, a school nurse with professional teacher status who is subject to a reduction in force or reorganization may displace or "bump" a school nurse without professional teacher status, provided that the more senior nurse is currently certified/licensed or otherwise legally qualified for the position (i.e., "grandfathered"). Similarly, a more senior school nurse with professional teacher status may bump a less senior school nurse with professional teacher status only if the more senior nurse is currently certified/licensed or otherwise legally qualified for the position. A more senior school nurse with professional teacher status does not have the right to bump into a teaching position for which the school nurse is not currently certified/licensed.

   School districts and students throughout the Commonwealth benefit from the service of skilled, dedicated and experienced school nurses. We hope this advisory is helpful to you in understanding and applying the law that applies to their professional teacher status. If there are further developments on these issues as a result of legislation or judicial review, we will post an update. In the meantime, if you have questions about the application of the 2006 law to particular facts, please consult with your legal counsel.

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¹ In Sommer v. Bialy, Civil Action No. 96-1278 (Worcester Super., Mar. 14, 2007), the court referred to the 2006 amendment but noted that it did not apply to the plaintiff school nurse, who was dismissed from her position in 1998 before school nurses were eligible for professional teacher status.

² A probationary teacher may be dismissed for no reason during the first ninety calendar days of employment. After ninety calendar days, a probationary teacher is entitled to pre-dismissal procedures set forth in M.G.L. c. 71, § 42.

³ Counting years of service prior to the effective date of the new law could be viewed as applying the law retroactively, contrary to the legal principle that a statute conferring substantive rights should be applied prospectively unless the Legislature specifies otherwise. The counter-argument, however, is that extending professional teacher status to a school nurse on or after October 22, 2006, based on her previous years of service, is prospective rather than retroactive, as long as the cause of action (e.g., dismissal) arose after the statute took effect. In contrast, applying the statute to a school nurse who was dismissed before October 22, 2006 would be retroactive application and would be improper. A school district could also argue that granting eligible school nurses immediate professional teacher status as of October 22, 2006 would deprive principals of the opportunity to evaluate them annually during a customary three-year probationary period. Principals and superintendents had no notice during the three previous school years (September 2003 - June 2006) that school nurses might be deemed to have acquired professional teacher status as of October 22, 2006, less than eight weeks after the start of the 2006-07 school year. The argument has merit, but a court or an arbitrator might well view it as a policy question that should be addressed by the Legislature if it is to be addressed at all.

⁴ A school nurse who was first employed by the district for the 2004-05 school year and continued in 2005-06 would have to complete the current school year and be rehired for 2007-08 in order to acquire professional teacher status. A school nurse who was employed by the district initially for the 2005-06 school year would have to complete two more consecutive school years, and so on.

Last Updated: June 19, 2007