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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 selfesteem 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.