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Gibbs v. E. Providence Sch. Comm.

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC. SUPERIOR COURT
May 11, 2020
C.A. No. PC-2017-1615 (R.I. Super. May. 11, 2020)

Opinion

C.A. No. PC-2017-1615

05-11-2020

CHERYL GIBBS v. EAST PROVIDENCE SCHOOL COMMITTEE, and THE RHODE ISLAND BOARD OF EDUCATION FOR ELEMENTARY AND SECONDARY EDUCATION

ATTORNEYS: For Plaintiff: Jeffrey D. Sowa, Esq. For Defendant: Stephanie J. Cote, Esq.; Paul V. Sullivan, Esq.


DECISION TAFT-CARTER , J. The matter before the Court is an appeal from a decision of the Council on Elementary and Secondary Education (the Council) upholding the Commissioner of Education's (Commissioner) affirming of the East Providence School Committee's (School Committee) decision not to renew Cheryl Gibbs' (Ms. Gibbs or the Petitioner) contract. Ms. Gibbs requests that this Court reverse the decision of the Council, and order that she be reinstated to her former position with full pay. The Counsel and School Committee oppose the Petitioner's appeal. For the reasons set forth below, this Court upholds the Council's decision. Jurisdiction is pursuant to G.L. 1956 §§ 16-13-4, 16-39-4, and G.L. 1956 § 42-35-15.

Erroneously named in this case as "The Rhode Island Board of Education for Elementary and Secondary Education."

I

Facts and Travel

Since 1996, Ms. Gibbs was employed as a principal in the East Providence School Department. Rhode Island Department of Education Hr'g Tr. at 12, 70, Aug. 12, 2016 (Hr'g Tr.). From November 1, 2012 through October 31, 2015, she served pursuant to a group employment contract known as the East Providence Association of School Principals' Employment Agreement (the 2012 Contract). Hr'g Tr. at 12, 15, 70-71; Pet'r's Ex. 1, at 1. The 2012 Contract included a survival clause which reads as follows:

"Negotiation for a new agreement between the Association and the School Committee shall commence no later than one hundred twenty (120) days prior to the expiration of this Agreement ending on November 30, 2015 ('End Date'). Should negotiations fail to commence and/or commence and extend beyond the End Date, the current Agreement shall continue in full force and effect until a new agreement is reached." Pet'r's Ex. 1, at 1.

Furthermore, the 2012 Contract provided that at the discretion of the Superintendent, "[e]very Administrator shall be granted . . . a term ('Individual Term') of no less than two (2) years. Once the Administrator has been employed as an Administrator in the District for five (5) years, the Individual Term shall be no less than three (3) years)." Pet'r's Ex. 1, § 4.1. Should the "District elect[ ] not to renew the Administrator upon the conclusion of his/her individual term, the District shall provide notice of its decision to the Administrator on or before March 1 of the year in which his/her individual term concludes." Pet'r's Ex. 1, § 5.6.2.

In addition to the contractual provisions, the School Administrators' Rights Act, (the ARA or the Act), limits an administrator's termination to situations where "just cause" exists. Section 16-12.1-2.1. Upon dismissal or nonrenewal of an administrator, the Act also requires the school committee to provide the administrator with "(1) a concise, clear, written statement, privately communicated, of the bases or reasons for the suspension, dismissal, or nonrenewal, and (2) notification of the right of the administrator to a prompt hearing, which shall be at the election of the administrator, and the right to be represented by counsel[.]" Section 16-12.1-3. Should the administrator request a hearing, he or she must be provided with "prompt notification stating the time and place of the hearing . . . The time and place set for the hearing shall allow sufficient opportunity to the administrator for preparation without undue delay." Section 16-12.1-3.

Ms. Gibbs most recently served as the principal at Orlo Avenue Elementary School in East Providence (the School) until she was placed on paid administrative leave in August 2014. Hr'g Tr. at 12, 70-71. Ms. Gibbs was evaluated in 2013 and 2014. Hr'g Tr. at 77-78, 83; see also Resp't's Exs. 5, 6. In 2013, "on a scale of 'exceeds expectations,' 'meets expectations,' or 'does not meet expectations,'" she was rated as "does not meet expectations" for "Professional Foundations," and was placed on an improvement plan. Hr'g Tr. at 77-78; see also Resp't's Ex. 5. In 2014, she continued not to meet expectations for Professional Foundations, and additionally she was rated "Unsatisfactory" in "Professional Practice." Resp't's Ex. 6.

Then, in 2014, the School went into "priority status," meaning that the "scores were below where they needed to be." Hr'g Tr. at 75, 83. Due to the School's priority status, the Department of Education required a committee consisting mainly of faculty and administrators from the School to compile an intervention plan to improve the educational performance of the School. Hr'g Tr. at 83-84. One intervention option that the committee could choose was to remove the principal. Hr'g Tr. at 83-84.

On August 12, 2014, the Superintendent of Schools for East Providence, (Former Superintendent), provided Ms. Gibbs with written notice that she was recommending that the School Committee terminate her at the August 26, 2014 School Committee meeting, "for cause because of Unsatisfactory Performance." Hr'g Tr. at 87-88; Resp't's Ex. 7, at 1. The Former Superintendent wrote in the letter that Ms. Gibbs could avoid termination through resignation. Resp't's Ex. 7, at 1. In the same document, the Former Superintendent indicated to Ms. Gibbs the following:

"Unsatisfactory Performance is indicated by the following:

• "Removal as principal recommended by the entire staff when selecting interventions for school reform with the Rhode Island Department of Education following Orlo Ave receiving the classification as a Priority School.
• "Teachers report an adversarial work environment and/or feel that they are not treated as professionals.
• "An environment of open communication and dialogue does not exist at Orlo.
• "Teachers do not receive timely and/or meaningful feedback on their performance and at the conclusion of this school year, teacher's ratings were not finalized in the EPSS system.
• "Students are not adequately prepared for the state assessment and/or other end-of-year assessments. School is designated as priority. Student scores are on the decline.
• "Employees report feeling bullied.
• "You have told employees that you have a race card and will use it.
• "You reprimand teachers publically.
• "Newer/weaker teachers feel preyed upon.
• "You have been verbally abusive to staff.
• "Staff feels that you are unapproachable.
• "You have exhibited inappropriate behavior towards staff, including sexually inappropriate comments, and inappropriate touching.
• "Grievances filed against you by staff have gone unanswered.
• "Teachers indicate that you are too busy and cannot take the time to talk to them, emails are ignored or are not responded to within a reasonable time, and information is not conveyed in a timely fashion, not at all, or is incorrect." Resp't's Ex. 7, at 1.

Ms. Gibbs acknowledges that while she did receive the August 12, 2014 letter from the Former Superintendent, she only received the first page. Hr'g Tr. at 96-97. The Former Superintendent testified that the letter was sent by certified mail, and that to her knowledge, both pages of the letter were included by the secretary. Hr'g Tr. at 97-98. Ms. Gibbs did not resign, and the Former Superintendent recommended that the School Committee terminate Ms. Gibbs. Hr'g Tr. at 92. However, while the School Committee approved the Former Superintendent's decision to start the process of the termination, no final action was taken by the School Committee to terminate Ms. Gibbs at that time, and Ms. Gibbs continued in her role as principal. Hr'g Tr. at 93-96.

In August of 2014, Ms. Gibbs stated that she had "several discussions" with the Former Superintendent, including one in which the Former Superintendent would find "another position" for Ms. Gibbs, "possibly as an assistant principal." Hr'g Tr. at 76. At a later meeting with Ms. Gibbs, the Former Superintendent, the human resources director, and the affirmative action officer, "it was suggested to [Ms. Gibbs] that taking a year off would be a better idea." Hr'g Tr. at 76. However, Ms. Gibbs preferred the option of becoming an assistant principal. Id. at 77. Nonetheless, in August of 2014, Ms. Gibbs was placed on paid administrative leave. The administrative leave ended in March 2016. While on administrative leave Ms. Gibbs was "[w]aiting to hear from the School Department as to where [the] next steps in [her] career would be." Hr'g Tr. at 79.

The 2012 Contract expired on October 31, 2015. Ms. Gibbs was not assigned another position, notice of nonrenewal was not provided per the terms of the 2012 Agreement, and negotiations for a new agreement never commenced. As such, Ms. Gibbs asserts that the 2012 Agreement remained in "full force and effect[.]" Hr'g Tr. at 15-17, 72; Pet'r's Ex. 1, at 1 § 5.6. Further, Ms. Gibbs testified that after the end date of the 2012 Contract, she continued to be "paid under the terms of that agreement[.]" Hr'g Tr. at 72. Additionally, Ms. Gibbs stated in her sworn testimony that she was not "approached regarding a new contract" in the 120 days preceding October 31, 2015, and she never received "any notice of a recommendation for nonrenewal of the contract[.]" Hr'g Tr. at 72-73.

On November 30, 2015, a new Superintendent (the Superintendent) was hired. Hr'g Tr. at 15-17; Pet'r's Ex. 1, at 1. By the time the Superintendent assumed the position, Ms. Gibbs had been on paid administrative leave for over a year. Hr'g Tr. at 22. The Superintendent never spoke to Ms. Gibbs; however, she formed the opinion that a more qualified administrator or principal could be found based on information from Ms. Gibbs' personnel file, which the Superintendent "personally went through." Hr'g Tr. at 24, 52, 57-60; see Resp't's Ex. 4.

On January 12, 2016, the School Committee voted to dissolve the 2012 Contract and issue individual contracts to the District's principals, including Ms. Gibbs. On behalf of the School Committee, the District's Director of Human Resources (HR Director) sent Ms. Gibbs a letter on January 13, 2016 notifying her of these actions and including Ms. Gibbs' new individual contract (the 2016 Contract) which was retroactive with a term from November 1, 2015 to February 28, 2016. Hr'g Tr. at 23-26, 49-51; see Pet'r's Ex. 2. Ms. Gibbs did not take part in the creation of this contract. Hr'g Tr. at 26-27; see Petitioner's Ex. 2. The letter informed Ms. Gibbs that if she had any questions she could contact the HR Director or the Superintendent. Id. The Commissioner found that Ms. Gibbs did not contact the HR Director or the Superintendent in response to this letter. Commissioner of Education Decision at 8 (Commissioner's Decision), Oct. 24, 2016.

The letter had a typo, and incorrectly stated that the contract term began on November 1, 2016. (Hr'g Tr. at 26).

Ms. Gibbs did not sign the 2016 Contract, but the Superintendent testified that "[t]hat was a template contract," and "she didn't have to sign this particular contract" Hr'g Tr. at 29. The Commissioner found that soon after the issuance of the 2016 Contract, the HR Director called Ms. Gibbs to ask if she would "mind coming in" to speak with the Superintendent. Commissioner's Decision at 7. Ms. Gibbs responded by referring the HR Director to her lawyer and, when contacted, "Ms. Gibb's [sic] lawyer reported that he had not yet been retained by Ms. Gibbs, and then called back to confirm that he was." Id. After this exchange, there was no further contact between the parties concerning the 2016 contract." Id. at 8.

In her testimony, the Superintendent agreed that she "prepared the proposed contract to Ms. Gibbs that was scheduled to terminate on February 28, 2016 in order so that [the Superintendent] could properly non-renew her." She further stated that "[she] knew that [Ms. Gibbs] needed a contract, and [she] also wanted to give [Ms. Gibbs] an opportunity, rather than no contract, a month, so that she could get her life in order . . ." Hr'g Tr. at 36. On January 26, 2016, the Superintendent mailed Ms. Gibbs another letter advising her that she intended to recommend to the School Committee that they non-renew Ms. Gibbs' 2016 Contract at their February 9, 2016 meeting. Hr'g Tr. at 36-37; see Pet'r's Ex. 3. The School Committee approved the Superintendent's recommendation to not renew Ms. Gibbs' 2016 Contract at that meeting. Commissioner's Decision at 8. In response, Ms. Gibbs requested a hearing to challenge her non-renewal before the School Committee, exercising her right to do so under the ARA. Commissioner's Decision at 8-9; §§ 16-12.1-1 et seq. The hearing took place on March 28, 2016, and the School Committee affirmed its February 9, 2016 decision to not renew Ms. Gibbs' contract. Commissioner's Decision at 8-9. Ms. Gibbs was provided with formal notice of this decision via a letter on March 29, 2016. Id.

Pursuant to § 16-12.1-6, on April 4, 2016, fewer than ten days after the School Committee's final decision, Ms. Gibbs appealed the nonrenewal to the Commissioner. Commissioner's Decision at 9. On August 12, 2016, a hearing was held at the Rhode Island Department of Education with Hearing Officer Anthony F. Cottone, Esquire appointed to conduct the hearing by the Commissioner. Hr'g Tr. at 4. On October 24, 2016, the Commissioner issued a Decision and Order denying and dismissing the appeal with prejudice. Commissioner's Decision at 17. The Commissioner held that Ms. Gibbs "(1) waived her right to challenge the non-renewal of her [2012] group employment contract by failing to appeal the relevant School Committee action; and (2) is estopped from challenging the validity of her new [2016] individual contract after accepting the salary and benefits provided under the new contract while on paid leave." Commissioner's Decision at 1. The Commissioner also found that the School Committee violated the ARA, the Principal Regulations, and the terms of the 2012 Agreement when dissolving the 2012 Contract. Commissioner's Decision at 12. Further, the Commissioner found that there "could have been no meeting of the minds as to the 2016 contract . . . and thus an essential element to contract formation was missing." Commissioner's Decision at 13.

However, the Commissioner found that "the 2016 Contract effectively replaced the 2012 Agreement." Commissioner's Decision at 15. Because the Petitioner "failed to file an appeal under RIGL § 16-12.1-6" after the School Committee's January 12, 2016 decision to "dissolve" the 2012 Contract, he concluded that she "cannot now argue that the School Committee had violated her rights." Commissioner's Decision at 13. Additionally, the Commissioner explained, since "she remained on paid leave status following the School Committee action and accepted the checks which were sent to her pursuant to the 2016 Contract," she is now estopped from arguing that the 2016 Contract is unenforceable. Commissioner's Decision at 14. Regarding the non-renewal of the 2016 Contract, the Commissioner did not find any legal deficiencies. Commissioner's Decision at 15-17.

Thereafter, on January 19, 2017, Ms. Gibbs filed a timely appeal with the Council. Council on Elementary and Secondary Education's Decision, Mar. 28, 2017 (Council's Decision). The Council affirmed the Commissioner's Decision. On April 11, 2017, after exhausting all remedies available within the Rhode Island Department Education, Ms. Gibbs timely filed the instant appeal with the Rhode Island Superior Court pursuant to § 16-12.1-6.

"An administrator aggrieved by a final decision of a school committee may obtain review under the provisions of chapter 39 of this title by petitioning the commissioner of elementary and secondary education within ten (10) days of receipt of the decision. When an appeal is taken, the school board shall forward a copy of the complete record of the case to the commissioner of elementary and secondary education." Section 16-12.1-6.

II

Standard of Review

Section 42-35-15(g) of the Administrative Procedures Act (APA) establishes this Court's appellate jurisdiction to review final decisions issued by state administrative agencies. See McAninch v. State of Rhode Island Department of Labor & Training, 64 A.3d 84, 87 (R.I. 2013). Pursuant to § 42-35-15:

"The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Section 42-35-15(g).

When reviewing an agency decision pursuant to § 42-35-15, the Court may not substitute its judgment for that of the agency with respect to credibility of witnesses or the weight of evidence concerning questions of fact. Center for Behavioral Health, Rhode Island, Inc. v. Barros, 710 A.2d 680, 684 (R.I. 1998); Mine Safety Appliances Co. v. Berry, 620 A.2d 1255, 1259 (R.I. 1993). As such, the Court's review is limited to '"an examination of the certified record to determine if there is any legally competent evidence therein to support the agency's decision.'" Johnston Ambulatory Surgical Associates., Ltd. v. Nolan, 755 A.2d 799, 804-05 (R.I. 2000) (quoting Barrington School Committee v. Rhode Island State Labor Relations Board, 608 A.2d 1126, 1138 (R.I. 1992)). Competent or substantial evidence is that which '"a reasonable mind might accept as adequate to support a conclusion, and means an amount more than a scintilla but less than a preponderance."' Newport Shipyard, Inc. v. Rhode Island Commission for Human Rights, 484 A.2d 893, 897 (R.I. 1984) (quoting Caswell v. George Sherman Sand & Gravel Co., 424 A.2d 646, 647 (R.I. 1981)).

The Court "may reverse [the] findings [of the administrative agency] only in instances where the conclusions and the findings of fact are totally devoid of competent evidentiary support in the record, or from the reasonable inferences that might be drawn from such evidence." Bunch v. Board of Review, Rhode Island Department of Employment and Training, 690 A.2d 335, 337 (R.I. 1997) (citations omitted). "Questions of law, however, are not binding upon the court and may be reviewed to determine what the law is and its applicability to the facts." Narragansett Wire Co. v. Norberg, 118 R.I. 596, 607, 376 A.2d 1, 6 (1977).

III

Discussion

In his October 24, 2016 decision, the Council affirmed the decision of the Commissioner upholding the School Committee's non-renewal of Ms. Gibb's 2016 contract. In doing so it was held that Ms. Gibbs (1) waived her right to challenge the non-renewal of her [2012 Contract] by failing to appeal the relevant School Committee action; and (2) is estopped from challenging the validity of her [2016 Contract] after accepting the salary and benefits provided under the new contract while on paid leave. The Petitioner now raises three issues on appeal: 1) the Commissioner erred as a matter of law by resting his decision entirely on the sua sponte application of legal theories that the Petitioner did not have an opportunity to be heard on; 2) the Commissioner's Decision that Ms. Gibbs waived her right to challenge the non-renewal of her group contract is "unlawful"; and 3) the Commissioner's Decision that Ms. Gibbs should be estopped from challenging the validity of the 2016 Contract is "irrelevant" after a finding from this Court that she did not waive her right to appeal the dissolution of the 2012 Contract. The School Committee and the Council oppose this appeal, and both argue that the Petitioner waived her right to challenge the 2012 Contract's dissolution and is estopped from arguing the enforceability of the 2016 Contract.

A

Raising Arguments Sua Sponte

At the outset, this Court must address a procedural matter. The Petitioner asserts that the School Committee never raised waiver or estoppel in its defense and, therefore, the Commissioner's sua sponte application of these doctrines violated the raise-or-waive rule and denied the Petitioner her right to notice and the opportunity to be heard. Pet'r's Mem. at 5-6. As such, she contends that her right to "fundamental fairness" was violated. In response, the School Committee argues that the Commissioner "cannot ignore clearly applicable law" and the use of these theories does not make the decision unlawful. School Committee's Mem. at 5.

The Supreme Court in Roe v. Gelineau, 794 A.2d 476, 482 (R.I. 2002) explained that "[i]t is well established that, under the raise-or-waive rule, this Court refrains from reviewing issues not raised in the trial court." (citing State v. Breen, 767 A.2d 50, 57 (R.I. 2001)). Therefore, the Court is generally prohibited from raising legal issues sua sponte. The raise-or-waive rule, however, typically applies to the Supreme Court review of lower court decisions, and our Supreme Court has not "explicitly held that the raise-or-waive doctrine applies to administrative proceedings." East Bay Community Development Corp. v. Zoning Board of Review of Town of Barrington, 901 A.2d 1136, 1153 (R.I. 2006). But see Randall v. Norberg, 121 R.I. 714, 721, 403 A.2d 240, 244 (1979) (wherein the Supreme Court held that "failure to raise a constitutional issue at the administrative level does not preclude its litigation in Superior Court").

There is an exception to the raise-or-waive rule when a legal principle is sufficiently alluded to so that "the substance of the argument relied upon by the trial justice was raised before him and could be considered by this Court." Nolan, 755 A.2d at 813. In Nolan, the Supreme Court found that an applicant for a certificate of need had sufficiently alluded to the principle of administrative finality in the Superior Court and, therefore, enough of the argument relied upon by the trial justice was raised previously for the Supreme Court to consider it. Id.; cf. King v. Huntress, Inc., 94 A.3d 467, 484 (R.I. 2014) (holding that, while an objection to a particular jury instruction "was not a model of proper syntax," there was nonetheless "enough meat on the bone to have put the trial justice on notice as to what defendant contended was the nature of [the trial justice's] alleged error.") (internal quotation marks omitted.)

Here, the Commissioner's Decision is based on legally competent evidence. The School Committee argued "if [the Petitioner] had any questions about the 2016 Contract, she should have contacted the District." Commissioner's Decision at 10. Moreover, the School Committee's Post- Hearing Brief states that "when the Petitioner received [the 2016 Contract] that was sent with [the HR Director's] letter on January 13, 2016, the Petitioner did not contact [the HR Director] or the Superintendent to make any inquiry about the contract or to discuss matters." School Committee's Post-Hearing Br. at 5. Moreover, an examination of the certified record indicates that the Superintendent testified multiple times at the hearing that, despite an invitation to do so, the Petitioner refused to meet with the Superintendent to discuss the contract. Hr'g Tr. at 27-32. There was also testimony indicating that the Petitioner remained on paid leave for a total of 20 months, including two months after the issuance of the 2016 Contract. Hr'g Tr. at 62-63.

This testimony, coupled with the School Committee's argument, provided the Commissioner a sufficient and competent evidentiary foundation to establish those findings of fact supporting his decision. See East Bay Community Development Corp., 901 A.2d at 1153. For example, the Commissioner weighed the hearing testimony to form his factual conclusion that "[n]either Ms. Gibbs nor her lawyer made any additional response after having received the 2016 Contract and after having been informed that the School Committee had voted to dissolve the 2012 Agreement and 'to issue' the 2016 Contract," and this fact informed the Commissioner's ultimate decision. Commissioner's Decision at 8. Therefore, despite the fact that the School Committee did not utilize the specific words waiver or estoppel, the competent record substantiates the finding that these legal principles were sufficiently alluded to at the hearing to support the Commissioner's ultimate decision. Nolan, 755 A.2d at 813.

Furthermore, as opposed to a situation where the trial court raises an issue sua sponte, the Petitioner has had the opportunity to appeal twice—first to the Council and now to this Court. She has briefed the issues of waiver and estoppel twice, both times arguing that the use of waiver and estoppel was improper. Therefore, because the Petitioner has been heard twice on these issues since the time the Commissioner rendered his decision, this case is further distinguished from those in which the prohibition on sua sponte decision making is typically applied.

Finally, the court concludes that the agency's decision is supported by legally competent evidence. Interstate Navigation Co. v. Division of Public Utilities and Carriers, State of Rhode Island, 824 A.2d 1282, 1286 (R.I. 2003). See also 73A C.J.S. Public Administrative Law and Procedure § 488 (Mar. 2020 Update) ("As a general rule, judicial review of administrative acts and decisions is limited or narrow in scope, and deferential to the agency"). Here, the Commissioner heard evidence and decided on an issue directly in its purview under the ARA. The record contains sufficient competent evidence on this issue, which the Commissioner reviewed and used to create findings of fact to support his decision.

Therefore, because the Commissioner was provided with the substance of the argument for waiver and estoppel, and the record contains sufficient competent evidence to support his decision, the Court finds that the Commissioner's use of these legal principles was not improper.

B

Waiver of the Right to Challenge the 2012 Agreement

The Petitioner argues that the Council erred in upholding the Commissioner's finding that Ms. Gibbs waived her right to challenge the non-renewal of her 2012 Contract by failing to appeal within the time prescribed by the ARA. Specifically, the Petitioner contends that the Commissioner ignored the Respondent's noncompliance with the statute's notice requirements and thus, in applying waiver, set the precedent that there is "no reason to provide notice and an opportunity to be heard to an administrator." Pet'r's Mem. at 7. In response, the School Committee maintains that "no action was taken to contest [the dissolution of the 2012 Contract] until her appeal of the School Committee's non-renewal of her 2016 Contract." School Committee's Mem. at 7. Therefore, despite the School Committee's belief that the ARA did not actually apply to its action, it argues that the Court should affirm the Commissioner's Decision that the Petitioner waived her right to appeal under the ARA.

"[W]aiver is the voluntary intentional relinquishment of a known right. It results from action or nonaction . . . ." Lajayi v. Fafiyebi, 860 A.2d 680, 687 (R.I. 2004). "Waiver that results from a party's actions may be expressed in the actions themselves or implied from them, and 'may arise where a person against whom the waiver is asserted has pursued such a course of conduct as to sufficiently evidence an intention to waive a right or where his [or her] conduct is inconsistent with any other intention than to waive it."' Haydon v. Stamas, 900 A.2d 1104, 1112-13 (R.I. 2006) (quoting Sturbridge Home Builders, Inc. v. Downing Seaport, Inc., 890 A.2d 58, 65 (R.I. 2005)). The Court has further held that "[a] waiver arises by the intentional relinquishment of a right by a person or party, or by his neglect to insist upon his right at the proper time . . . ." Metcalf v. Phenix Insurance Co., 21 R.I. 307, 309, 43 A. 541, 542 (1899).

In his Decision, the Commissioner found, and the Council agreed, that the School Committee violated:

"(a) the ARA, and specifically, § 16-12.1-2.1's requirement that she be afforded advance notice of any decision not to renew as well as a statement of the reasons . . . ; and

(b) the Principal Regs, since the School Committee made no attempt to contact Ms. Gibbs or to negotiate a successor to the 2012 Agreement before unilaterally issuing the 2016 Contract after it had been approved by the School Committee on January 12, 2016 and had ostensibly been in effect for several months . . . as well as

(c) the terms of the 2012 Agreement, by failing to: (i) negotiate with Ms. Gibbs; (ii) recognize that the 2012 Agreement was to remain "in full force and effect until a new agreement [was] reached;" or (iii) provide the minimum three-year term called for under the 2012 Agreement." Commissioner's Decision at 12. (internal citations omitted.)

Despite the findings above, the Commissioner also found that the Petitioner waived her right to challenge the dissolution of the 2012 Contract by failing to appeal the School Committee's action within ten (10) days as required by the ARA. Id. at 13. If an administrator is aggrieved by a school committee's decision, the administrator may appeal pursuant to § 16-12.1-6. The section reads:

"An administrator aggrieved by a final decision of a school committee may obtain review under the provisions of chapter 39 of this title by petitioning the commissioner of elementary and secondary education within ten (10) days of receipt of the decision. When an appeal is taken, the school board shall forward a copy of the complete record of the case to the commissioner of elementary and secondary education." (Emphasis added.)

Though the Parties dispute whether the ARA applied to the School Committee's Decision to dissolve the 2012 Contract, the Court finds that the Commissioner's conclusion that Gibbs' conduct was clearly inconsistent with both her statutory and contractual rights is supported by competent evidence. The Court will not substitute its judgement for that of the Commissioner. The Petitioner accepted the dissolution of her contract without appeal pursuant to the ARA, nor any objection to any alleged violation of the 2012 Contract. This behavior is similar to the conduct in Houde v. State, where a state agency employee challenged the agency's unilateral transfer of his employment status from classified to nonclassified, which served to remove him from state retirement system in exchange for greater salary and other benefits. 973 A.2d 493 (R.I. 2009). In that case, the Supreme Court found that the employee "could have requested a transfer and preserved his classified status, but he chose instead to accept the increased compensation and ancillary benefits over the ensuing eight years." Id. at 499. As a result, the Supreme Court found that he waived his right to remain in a classified position. See also Haydon, 900 A.2d at 1111 (finding that a sellers reply of "okay" in response to being notified when a Purchase and Sales Agreement would be sent, provided clear evidence of the seller's intent to extend the deadline and excused the buyer's delay in exercising his option contract).

"The School Committee maintains that the ARA did not even apply to its decision to dissolve the 2012 Agreement" because it did not "suspend, dismiss, or non-renew" the Petitioner, and only those actions are covered by the ARA. School Committee's Mem. at 6. --------

Here, the record demonstrates that the HR Director advised the Petitioner by letter that the School Committee had voted "to dissolve the 2012 Agreement" at its meeting the prior night, and "to issue" an individual employment contract. Pet'r's Ex. 2. The letter also stated that "[i]f you have any questions regarding this letter or the enclosed contract please feel free to contact me . . . or Kathryn Crowley, Superintendent of Schools . . . " Id. Despite the Petitioner's current objection to this action, the Petitioner failed to appeal, or object to the dissolution of the 2012 Contract, or the issuance of the 2016 Contract.

Moreover, the competent evidence on the record establishes that this action occurred during a time when the Petitioner was fully aware that the School Committee was considering her termination. The Petitioner was on notice of the possible termination as far back as 2013, after the first deficient evaluation. She received another poor evaluation in 2014. Furthermore, after the school attained priority status, the Former Superintendent provided the Petitioner with written notice that she was recommending her termination to the School Committee "for cause because of Unsatisfactory Performance." Hr'g Tr. at 87-88; Resp't's Ex. 7, at 1. The Petitioner was also given the option to resign, which she refused, and she was eventually placed on paid administrative leave. Resp't's Ex. 7, at 1. The Petitioner spent eighteen months on leave with full pay and benefits "[w]aiting to hear from the School Department as to where my next steps in my career would be." Hr'g Tr. at 79. When she did hear from the School Committee, she was given the 2016 Contract which expired on February 28, 2016. Therefore, she was informed that her new contract was only valid for another month and a half.

Despite this precarious position, the Petitioner did not object or question the actions of the School Committee. These established facts clearly align with Houde, where the Court found that "[i]n light of [Plaintiff's] steady resolve to preserve his classified status, the trial justice did not find his assertion that he was unaware of the eventual change in status to be credible." 973 A.2d at 499. As in Houde, the Petitioner's failure to speak up in any way, particularly under circumstances in which her future with the school district was so uncertain, operated as a tacit waiver of her right to appeal. See id. at 493. As a result, the Petitioner's conduct sufficiently evidences an intention to waive an objection to the dissolution of the 2012 Contract, and the Petitioner's inaction provided the Commissioner with reliable, probative, and substantial evidence on this issue. Haydon, 900 A.2d at 1112-13.

Furthermore, the Petitioner's claim that the Commissioner's Decision violated her due process rights is unfounded and unsupported by the record. The United States Supreme Court has held that due proces requires an opportunity for "some kind of hearing prior to the deprivation of a significant property interest." Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 19 (1978) (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971)) (internal quotation marks omitted). As the Commissioner found, the Petitioner "received the required notice and statement of cause prior to the non-renewal of the 2016 contract." Commissioner's Decision at 15. Moreover, the Petitioner received a hearing before the School Committee at which she was represented by Counsel. The Council's Decision notes "[t]he Commissioner thoroughly examined the procedural guarantees of the ARA and found that all rights were covered during the School Committee's decision not to renew Ms. Gibbs." Council's Decision at 3. Therefore, the Petitioner received adequate due process before her ultimate non-renewal and deprivation of any property interest took place. In the meantime, and as the hearing process unfolded, the Petitioner enjoyed two additional months of paid administrative leave. Hr'g Tr. at 62-63.

The Commissioner's Decision that the Petitioner waived her right to appeal the dissolution of the 2012 Contract, and the Council's Decision to uphold it, is supported by reliable, probative, and substantial evidence in the record. The Petitioner voluntarily relinquished her right to appeal by making no objection to the dissolution of the 2012 Contract. Moreover, the Commissioner's Decision did not violate the Petitioner's right to due process and was not substantially prejudicial.

C

Estoppel

The Commissioner found that "the fact that Ms. Gibbs waived certain statutory and contractual rights with respect to the 2012 Agreement does not, however, necessarily mean that she effectively assented to the terms of the 2016 Contract." Commissioner's Decision at 13-14. However, he decided, and the Council agreed, that because Gibbs "failed to appeal the School Committee's January 12, 2016 decision [to dissolve the 2012 contract and issue the 2016 contract] after having been provided with timely notice, she remained on paid leave status . . . and accepted the checks which were sent to her pursuant to the 2016 contract . . . Gibbs is estopped from now arguing that her failure to assent to the 2016 Contract renders it unenforceable." Commissioner's Decision at 14.

The School Committee agrees with the Commissioner that, after accepting the benefits of the contract without objection, Gibbs assented to the terms of the contract and thus is estopped from challenging the validity of the 2016 Contract. Conversely, the Petitioner argues that the Commissioner's use of estoppel becomes "irrelevant" after a finding from this Court that Gibbs could not have waived her right to appeal because in that case, the 2012 Contract would have remained in full force and effect. Pet'r's Mem. at 11-12. Furthermore, the Petitioner argues that she did not accept the new contract and, though she was paid under this new contract, "nothing related to her compensation (salary or benefits) changed from what she was receiving from the Pre-Existing Contract . . ." Id. at 12.

This Court has found that the competent record supports the conclusion that the Petitioner did waive her right to challenge the School Committee's decision to dissolve the 2012 Contract. As a result, the 2012 Contract did not remain in full force and effect. However, the Court will nonetheless address the Commissioner's Decision that the Petitioner is estopped from arguing that the 2016 Contract is unenforceable.

As a general rule, by accepting the benefits of a contract, "a person may be estopped from questioning the existence, validity, and effect of a contract." 31 C.J.S. Estoppel and Waiver § 157 (Mar. 2020 Update). Estoppel "bars [a party] from raising certain rights or privileges when it would be inequitable to permit their assertion." Pacheco v. Nationwide Mutual Insurance Co., 114 R.I. 575, 577-78, 337 A.2d 240 (1975). Moreover, Alix v. Alix, 497 A.2d 18, 21 (R.I. 1985) supports the proposition that:

"when a necessary element of a contract is lacking as a result of one contracting party's failure to act, and that party has reaped those benefits to which he or she was entitled under the contract, he or she cannot thereafter raise the issue of the validity of the contract in order to avoid fulfilling his or her own obligations under the contract." (internal citations omitted).
In Alix, the Court found that an ex-spouse in a divorce case benefited from a property-settlement agreement yet failed to obtain a final decree of divorce that would have given the property-settlement agreement full force and effect. As a result, the court concluded that she was estopped from claiming the invalidity of the property settlement agreement because "she received the benefits of the property-settlement agreement." Id. at 22. Therefore, the court ruled that she could not use her own failure to act to help her evade her contractual obligations. Id. at 22-23. Similarly, in this case, though the Commissioner found that there was no meeting of the minds as to the 2016 Contract, Ms. Gibbs nevertheless had the power to object to its issuance. Instead, she did not object or accept the Superintendent's offer to meet to discuss the contract. The Superintendent testified that after the template for the 2016 Contract was approved, she would "[meet] with all of the principals to go over their contracts, so [Ms. Gibbs] was going to be provided the same opportunity as everyone else in the District." She further testified that "Eventually, yes, she would have had to sign a contract, or not sign because she disagreed." Hr'g Tr. at 29. Rather than signing, or not signing and expressing any disagreement, the Petitioner did nothing and remained on paid leave. Hr'g Tr. at 33. The Petitioner cannot now use her silence as to the 2016 Contract, after benefiting from two additional months of paid administrative leave, to undue the School Committee's decision not to renew the 2016 Contract.

Therefore, the Commissioner's Decision that the Petitioner is estopped from challenging the contract's validity, and the Council's Decision to uphold it, is supported by reliable, probative, and substantial evidence in the record, and is not clearly erroneous or an abuse of discretion.

IV

Conclusion

The Court had reviewed the entire record before it. A thorough review reveals substantial evidence to support the Commissioner's conclusion that the School Committee's decision not to renew Ms. Gibbs' contract was lawful. The Commissioner's Decision was thus not in excess of its statutory authority. The Court, therefore, finds that the Commissioner's Decision is supported by the reliable, probative, and substantial evidence on the record, and is not an abuse of discretion, clearly erroneous, or affected by error of law. Substantial rights of the Petitioner have not been prejudiced. Accordingly, the Council's Decision upholding the Commissioner's Decision is affirmed. Counsel shall prepare appropriate judgment for entry.

ATTORNEYS:

For Plaintiff: Jeffrey D. Sowa, Esq. For Defendant: Stephanie J. Cote, Esq.; Paul V. Sullivan, Esq.


Summaries of

Gibbs v. E. Providence Sch. Comm.

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC. SUPERIOR COURT
May 11, 2020
C.A. No. PC-2017-1615 (R.I. Super. May. 11, 2020)
Case details for

Gibbs v. E. Providence Sch. Comm.

Case Details

Full title:CHERYL GIBBS v. EAST PROVIDENCE SCHOOL COMMITTEE, and THE RHODE ISLAND…

Court:STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC. SUPERIOR COURT

Date published: May 11, 2020

Citations

C.A. No. PC-2017-1615 (R.I. Super. May. 11, 2020)