207 A.2d 389.

#### Town of North Kingstown *vs.*William P. Robinson, Jr., *Commissioner of Education.*

MARCH 4, 1965.

Present: Condon, C. J., Roberts, Paolino, Powers and Joslin, JJ.

Paolino, J.

This petition for a writ of certiorari was brought by the town of North Kingstown to review a decision of the respondent commissioner of education of the state of Rhode Island. The writ was issued and pursuant thereto the pertinent records have been certified to this court.

The cause involves a dispute between the school committee of the town of North Kingstown and James R. Tracy, Jr. Mr. Tracy was engaged under a written contract with the town's school committee to serve as a teacher in the public schools of North Kingstown for the 1963-1964 school year. The contract of employment provided that either party could terminate the engagement at any time “provided that said termination -shall not be in violation of existing state laws covering teacher or employee tenure.”

*349The petition alleges that Mr. Tracy did not have tenure under G. L. 1956, §16-13-3.

On January 31, 1964, as a result of an incident which occurred on January 28, 1964, the school committee notified Mr. Tracy that they were terminating his contract of employment in accordance with the termination clause. The committee refused Mr. Tracy’s request for a copy of the charges against him and a hearing thereon.

Pursuant to the provisions of §16-39-2, Mr. Tracy appealed the committee’s decision to the commissioner of education. After a hearing the commissioner entered a decision holding that under §16-12-6, Mr. Tracy was “entitled to a recitation of the charges on which he was dismissed and to a hearing” thereon by the committee.

From such decision, pursuant .to the provisions of §16-39-3, the town of North Kingstown appealed to the state board of education. After hearing the appeal, the board, in accordance with the authority vested in them by §16-l-4(j), entered a decision sustaining the commissioner’s decision. Thereafter the instant petition was filed.

Before considering the merits of this petition we shall discuss briefly respondent’s argument concerning the “propriety” of the parties in this proceeding. As we have already noted, this cause involves a dispute between the school committee and a schoolteacher and the petition in reality seeks a review of the decision of the board of education. We believe that in the circumstances orderly procedure would have been better served if such a petition had been brought iby the school committee with the board of education named as respondents. See *Irish*v. *Collins,*82 R. I. 348.

In sustaining the commissioner’s decision the board relied on the following provision of §16-12-6: “The school committee of any town may, on reasonable notice and a hearing1 of such teacher, dismiss any teacher for refusal to *350conform to the regulations by them made, or for other just cause * *

The petitioner contends that this statute does not prohibit the incorporation of a termination clause into a teacher’s annual contract and that the only statutory prohibition against such a clause appears in § 16-13-3 which applies only to teachers wlm have acquired tenure. The petitioner also contends that the effect of holding this termination clause invalid would be to create tenure for one! year for all probationary teachers.

The narrow issue presented for our determination is whether a teacher on an. annual contract under §16-13-2 may be dismissed within the contract year without being informed of the .charges against him and without an opportunity to be heard thereon.

Before the enactment of public laws 1946, chap. 1775, the teachers’ tenure act (now G. L. 1956, chap. 13 of title 16), school ¡committees could appoint teachers at will and for shorter periods than on the basis of an annual contract. The title of chap. 1775 is: “An Act To Guarantee And To Improve The Education Of Children And Youth In This State By Providing Continuing Teaching Service.” Section 2 thereof reads as follows:

> “Teaching service shall be on the basis of an annual contract, except as hereinafter provided, and such contract shall be deemed to be continuous unless the governing body of the schools shall notify the teacher in writing (on or before March 1) that the contract for the ensuing year will not be renewed.”

Mr. Tracy was a teacher engaged on an annual contract basis within the meaning of §16-13-2.

In our opinion the pertinent portion of §16-12-6 applies to a probationary teacher. We are not deciding that a probationary teacher cannot be dismissed during the contract year. We do hold, however, that this statute clearly grants a probationary teacher a right to a hearing and that implicit *351in such right is a right to a copy of the charge or charges against such teacher prior to the hearing before the school committee. It is our opinion, therefore, that the ¡board did not err in sustaining the commissioner’s decision.

*Weller & Wilkins, S. Everett Wilkins, Jr.,*for petitioner.

*J. Joseph Nugent,*Attorney General, *Joseph L. Breen,*Chief Special Counsel, for respondent.

The petition for certiorari is denied and dismissed, the writ heretofore issued is quashed, and the records certified to this court are ordered returned to the respondent with our decision endorsed thereon.

*364*Sanford H. Gorodetsky*for plaintiff.

*Pontarelli & Berberian, Aram K. Berberian,*for defendant.