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Dismissal Upheld after Teacher Rejects Remediation Efforts

​Vol. 17-007, September 20, 2017

(OAH Case No. 2016050044 (2017).)

The Gist
  • A teacher’s repeated refusal to follow directives, improve teaching methods, participate in team meetings, and cooperate with colleagues warrants dismissal.
  • Diligent record keeping of supports offered and the progressive discipline process is critical. 

The Details
Following a four-year effort to improve a Special Education teacher’s performance, the school district proceeded with the teacher’s dismissal for (1) unprofessional conduct, (2) unsatisfactory performance, (3) evident unfitness for service, (4) persistent violation of school rules, and (5) willful refusal to perform regular assignments.  Throughout this four-year period, administrators met with the teacher and observed her instruction.  The administrators provided the teacher with directives, guidance, and memorandums noting her areas of deficiency.  The administrators also provided her with opportunities to improve, including placing her in the Peer Assistance and Review program for two years. 

Despite the district’s efforts, the teacher failed to acknowledge her deficiencies, did not improve, and regularly provided administrators with lengthy responses defending her performance and conduct.  The teacher also refused to participate in team meetings or to seek guidance from assigned mentors, and was often rude and disrespectful toward her colleagues.  The teacher’s poor performance and conduct persisted following a lengthy progressive discipline process that included an 11-day suspension.

The CPC upheld the district’s dismissal on all five grounds, noting that the teacher’s unwillingness to cooperate with her colleagues and school administrators was unprofessional, and her disrespect and confrontational attitude demonstrated a temperamental defect, which rendered her evidently unfit for service.  Further, the CPC held that the teacher persistently refused to follow administrative directives and improve her teaching methods despite receiving numerous opportunities to improve.

Practical Pointers
This case demonstrates that, with diligent attention to the documentation and progressive discipline process, school districts can prevail in defending dismissals for unsatisfactory performance and other causes.  School districts are well advised to maintain records related to all important interactions, directives, and other communications throughout the discipline process.  Further, this case demonstrates that a teacher’s refusal to acknowledge performance deficiencies can serve as very persuasive evidence in support of dismissal.

Please note, nothing contained in the CPC Blog is intended to be legal advice.  Please feel free to contact any of our offices for additional information and/or consult legal counsel regarding any particular matters. 

 

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School Counselor Dismissed Based on Failure to Comply with Suicide Prevention Policy

​Vol. 17-006, July 24, 2017

(OAH Case No. 2016060721 (2017).)
The Gist
  • Student safety is always among school districts’ highest priorities.  Under certain circumstances, an employee who fails to appropriately comply with suicide prevention protocols may be subject to dismissal.

The Details
The school district developed and implemented a comprehensive suicide prevention policy and protocol and trained its staff regarding both.  Shortly thereafter, a 13-year-old student expressed a desire to die in a self-discovery questionnaire.  A counselor responded and completed a suicide evaluation with the student, finding his risk for suicide to be “moderate to severe.” 
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After completing the evaluation, the counselor asked the student to sit in the counseling office waiting area while he attend a one-hour meeting with the principal on an unrelated matter.  The counselor notified a secretary of the student’s presence, but said nothing about his suicide risk.  After returning from the meeting, the counselor found the student seated in the waiting area, but went to his office and closed his door.  Minutes later, the school day ended and the student left the office unattended.  A search for the student involving the counselor and other staff members ensued.  During that search, the counselor engaged in unprofessional conduct by, among other things, blaming others for the student’s disappearance.  The student was found unharmed several hours later. 

Based on the counselor’s above-noted conduct, coupled with his lengthy history of unprofessional conduct, the District served him with dismissal charges.  The District alleged the counselor engaged in immoral and dishonest conduct, and that he persistently violated school laws. 

The CPC upheld the counselor’s dismissal noting that his disregard for the suicide prevention policy created a significant risk of harm to, “the student and his parent, the school and the District in that it could have resulted in the death or attempted suicide of a student.”  The CPC also found that the counselor’s conduct both before and during the incident constituted a persistent violation of school regulations.  The CPC unanimously held that dismissal was necessary to protect students, school employees, or others, and to further deter respondent from engaging in similar conduct in the future.

Practical Pointers
Recent tragic events have increased focus on suicide prevention policies and protocols.  This case underscores the importance of closely adhering to those policies and protocols and illustrates that CPCs may uphold severe discipline against those who fail to comply with them.  Any failure to implement those policies and protocols should be closely reviewed and, in cases like this one, wherein the certificated staff member has demonstrated a pattern of unprofessional conduct both before the breach and in responses related to it, dismissal may be an appropriate alternative.
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Special Reminder
AB 2246 requires all school districts to adopt a suicide prevention policy that, among other things, addresses the needs of high-risk groups before the start of the 2017-18 school year.  The policy must address training for teachers who teach in seventh through twelfth grades.

Please note, nothing contained in the CPC Blog is intended to be legal advice.  Please feel free to contact any of our offices for additional information and/or consult legal counsel regarding any particular matters. 
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Suspension Overturned Because Evidence Failed to Establish Use of Improper Physical Contact with Students

​Vol. 17-005, June 26, 2017

(OAH Case No. 2016120176 (2017).)

The Gist

  • Witness credibility is critical in CPC hearings.  Inconsistent testimony may undermine the District’s case.
  • To impose a suspension on a permanent certificated employee, school districts must proceed with a hearing before the Commission on Professional Competence in the same manner as a dismissal, unless an alternative method is in place through collective bargaining negotiations.

 
The Details
The school district suspended a middle school special education teacher after students reported the teacher grabbed a student by the shirt and threw another student against the wall.  After placing the teacher on administrative leave and conducting an investigation, the school district moved for a two-day suspension, alleging the teacher’s misconduct constituted immoral conduct and evident unfitness for service.
 
At hearing, the student witnesses consistently testified that the teacher placed his hands on one student.  However, the students’ testimony varied widely regarding the severity of the touching.  Further, the students’ testimony conflicted with statements they drafted immediately following the incident.
 
The CPC noted that two teachers who partially witnessed the incident testified the teacher did not grab the student or throw the other against a wall.  Additionally, the CPC noted that the alleged conduct was out of character for the teacher, finding that the teacher had never been accused of misconduct prior to this incident, and his most recent evaluation described his conduct as exemplary.
 
Consequently, the CPC found the students’ description of the teacher’s conduct less plausible than the version of events described by staff members who witnessed the incident.  Ultimately, the CPC found the evidence did not support the school district’s contention that the teacher grabbed a student and threw the other against a wall.  As a result, the CPC overturned the suspension.
 
Practical Pointers
School districts must often rely on student witnesses when addressing teacher misconduct.  As seen in prior cases, this case demonstrates that complications can arise with student witness testimony.  When interviewing students, school districts should identify and address any inconsistencies among student accounts of the events.  Additionally, during the investigative process, school administrators should ensure that student written statements are detailed and contain the students’ complete recollection of events.  Finally, prior to making a recommendation to the governing board regarding disciplinary action, administrators should carefully scrutinize all relevant evidence and attempt to review the evidence in the same manner as a CPC.

Please note, nothing contained in the CPC Blog is intended to be legal advice.  Please feel free to contact any of our offices for additional information and/or consult legal counsel regarding any particular matters. 

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District Required to Reinstate Teacher After Failing to Prove Inappropriate Touching of Students

​Vol. 17-004, May 26, 2017

(OAH Case No. 2016060348 (2017).)
The Gist
  • Verbal directives issued by site level administrators do not constitute policy or regulations of the Governing Board.
  • In CPC hearings, witness testimony and witness credibility is critical.  School district witnesses, especially student witnesses, who testify inconsistently about critical facts will lack credibility.
  • Evaluations should accurately reflect concerns related to employee conduct or performance.

The Details
The school district initiated dismissal proceedings against a male fifth-grade teacher after receiving student complaints that he regularly hugged them; rubbed their shoulders, necks, and biceps; touched their necks, shoulders and lower back; interlocked fingers with them; stared at their breasts; attempted to pull a student’s bra strap; and grazed a student’s breast while he attempted to adjusted her shirt.  The district charged the teacher with unprofessional conduct, immoral conduct, evident unfitness for service, and persistent violation of school laws.

In its decision, the CPC noted that the district maintained a Board Policy prohibiting employees from engaging in any non-age-appropriate touching or physical contact with students.  Additionally, the CPC noted that the school principal claimed she directed employees to refrain from all touching of students. 

The CPC closely analyzed the students’ statements and, based on inconsistencies in their testimony, found their description of the teacher’s conduct to be unpersuasive.  Further, based on the testimony of other staff members, the CPC found that employees routinely engaged in age appropriate physical contact with students to promote a positive, supportive, and nurturing environment.  Consequently, the CPC rejected the principal’s claim that she verbally directed staff not to touch students.  Notably, the CPC closely analyzed the teacher’s prior performance evaluations, which commended him for appropriately engaging students and his awareness and sensitivity to students’ social, cultural, and emotional development.

Ultimately, the CPC found the district failed to meet its burden of establishing that the teacher’s conduct warranted dismissal.  As a result, the teacher was reinstated.

Practical Pointers
This case illustrates many of the complications which may arise through student witness testimony.  School districts are well-advised to employ sound practices when interviewing students and to carefully analyze student statements for inconsistencies.

This case reveals that verbal directives by site administrators alone likely will not carry the same force or effect of a Board Policy.  It also demonstrates that, absent a written record, employee recollection of such directives may vary.  Therefore, administrators are well-advised to memorialize verbal directives in writing and ensure those directives are actually implemented.

Finally, this case demonstrates that evaluators must prepare careful and thoughtful evaluations.  All remarks in an evaluation must accurately reflect the employee’s performance.  Likewise, evaluation narratives should describe concerns related to employee performance and/or conduct, subject to any applicable collective bargaining agreement requirements.
 
Please note, nothing contained in the CPC Blog is intended to be legal advice.  Please feel free to contact any of our offices for additional information and/or consult legal counsel regarding any particular matters. 
 
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Dismissal Overturned Based on Biased Investigation and Lack of Conclusive Evidence to Support Investigator’s Findings

Vol. 17-003, May 17, 2017

(OAH Case No. 2016040305 (2017).)
The Gist
  • Factual findings and conclusions in an investigation must be supported by the preponderance of the evidence (evidence that it is “more likely than not” the employee engaged in wrongdoing)
  • Investigator bias can undermine an otherwise compelling case for dismissal
 
The Details
After receiving an anonymous letter alleging a principal exercised favoritism in admitting five specifically named students, the District forwarded the letter to its private investigator to determine the author of the letter.  After interviewing several witnesses and other individuals, including a counselor, the investigator concluded that the counselor authored the letter.  Shortly thereafter, the District initiated dismissal proceedings against the counselor for dishonesty, evident unfitness for service, and persistent failure or refusal to obey state laws or District regulations.
 
The CPC unanimously found that the evidence did not support the District’s allegation that the counselor wrote the letter and overturned the dismissal.  The CPC noted that the evidence the District collected was merely circumstantial, the counselor did not confess to writing the letter, and the District lacked any direct evidence supporting the District’s conclusion that the counselor authored the letter. 
 
Additionally, the CPC noted that the District investigator’s firm regularly worked for the District and received a monthly retainer fee.  The CPC opined that this arrangement made it difficult for the investigator to conduct an independent, unbiased investigation for the District.  It also noted that the investigator displayed overt bias against the counselor when interviewing witnesses, thereby undermining the investigator’s credibility and determinations.
 
Practical Pointers
When conducting an investigation, school district officials and outside investigators must carefully gather and assess all evidence.  Findings and conclusions must be supported by a preponderance of the evidence.  School districts should refrain from taking disciplinary action against employees if the preponderance of the evidence does not support a finding that the employee actually engaged in the alleged misconduct.  District investigations should be unbiased to avoid undermining an otherwise compelling case for dismissal.

Please note, nothing contained in the CPC Blog is intended to be legal advice.  Please feel free to contact any of our offices for additional information and/or consult legal counsel regarding any particular matters. 
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Psychologist Dismissed for Circulating Confidential Information and Falsifying Residency Form

Vol. 17-001, May 2, 2017

(OAH Case No. 2016060112 (2017).)
The Gist
​● Willful disclosure of confidential student information for improper purposes may warrant dismissal
​● Falsification of school district forms for personal advantage may also support dismissal
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​The Details
In this case, a psychologist shared confidential student information with parents who were not the parents of the children whose records were disclosed.  Those disclosures included, among other things, student information contained in district documents and details regarding requests for services.  The psychologist also disclosed confidential information regarding an on-going investigation, litigation, and terms of confidential settlement agreements.
 
The psychologist shared this information via text messages, in many of which she acknowledged the wrongfulness of her conduct.  For example, her text messages stated, among other things, “for ur eyes only” and “mums the word.”  The CPC characterized the psychologist’s communications as “gossip.”
 
The psychologist also filed a proof of residency form falsely asserting that her children lived within the attendance boundaries of the school to which she was assigned.  The district sought to dismiss the psychologist for unprofessional conduct, dishonesty, and persistent failure or refusal to comply with district rules and regulations.
 
The CPC unanimously upheld the psychologist’s dismissal by concluding that the psychologist’s conduct constituted dishonesty and a persistent failure or refusal to comply with district rules and regulations.
 
Practical Pointers
Clients often struggle with the appropriate level of discipline to administer to in response to employee misconduct.  This case seems to support a finding that a certificated staff member who knowingly and willfully violates the law by improperly disclosing confidential student may be dismissed.  It should be noted, however, that the CPC found the psychologist’s conduct to be highly blameworthy given the fact the she knowingly and wrongfully distributed the student information, the psychologist took no responsibility for her actions, and her testimony was not “persuasive or credible.”
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Please note, nothing contained in the CPC Blog is intended to be legal advice.  Please feel free to contact any of our offices for additional information and/or consult legal counsel regarding any particular matters. 
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