ASM CPC BlogAs the first of its kind, our CPC Blog analyzes decisions issued by California Commissions on Professional Competence ("CPC") regarding teacher and other certificated staff dismissals. Our CPC Blog is designed to provide useful analysis and timely information concerning teacher dismissals in a user-friendly and easy to access format. We hope our CPC Blog is helpful in dispelling many myths regarding teacher dismissals and is useful in educating administrators and the general public regarding this process.
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Vol. 20-003, February 12, 2020
Expert Witness Testimony Undermines District’s Investigation
[APPEAL PENDING]
(OAH Case No. 2018120438 (2019).)
The Gist
When interviewing student witnesses, school administrators should take steps to avoid confirmation bias and cross-contamination of testimony. Improper interview techniques may undermine a school district’s investigation.
The Details
A teacher faced dismissal charges related to misconduct arising from his interactions with students while teaching high school and second grade. The school district alleged that when teaching second grade, the teacher yelled at students, forced students into kneeling positions to serve “time-out,” and grabbed students by their necks.
After one second grade student accused the teacher of misconduct, the school principal interviewed three additional second grade students. The students were English Language Learners and struggled academically. The principal asked each student witness to write a statement describing the teacher’s misconduct after their interview. Because some of the student witnesses could not write legible statements, the principal and another administrator transcribed the statements.
At hearing, the school district presented no evidence that the administrators admonished student witnesses not to discuss the investigation or their interviews following the meeting with the principal. Further, the principal did not take notes during the student interviews.
At hearing, the principal testified that after two student interviews, she concluded that something inappropriate occurred in the teacher’s classroom.
The teacher’s expert witness questioned the principal’s interview practices and described best practices for interviewing minor students. The expert explained that cross-contamination of witnesses and age are the two key issues when interviewing children. The expert testified that the younger the child, the more susceptible they are to suggestibility. The expert also testified that children with learning differences (including students who are English Language Learners and those who struggle academically) are more susceptible to suggestibility.
The expert opined that the focus of the questions became narrower throughout the investigation and were designed to elicit certain information consistent with the information derived from previous interviews.
The CPC gave significant weight to the expert testimony and determined that it could not conclude that misconduct occurred when the teacher served in second grade. Ultimately, the CPC determined that the school district did not satisfy its burden to terminate the teacher given the principal’s interview techniques and the students’ conversations amongst themselves regarding the investigation.
The teacher also faced a number of charges related to inappropriate conduct with high school students. The district presented evidence that the teacher stared at female students’ breasts and buttocks, invaded their personal space, and made inappropriate comments about female students’ appearances. The district also presented evidence that the teacher maintained motorcycle magazines in his classroom that contained explicit material. However, the CPC found that the district failed to provide sufficient evidence to sustain these charges.
Consequently, the CPC dismissed the charges against the teacher.
Practical Pointers
At the outset of an investigative interview, school district personnel should take steps to build rapport with the student witness. Further, the interviewer should set ground rules that establish there is no “right” or “wrong” answer and the student witness should not provide the answer he/she believes the interviewer wants to hear.
When interviewing students, interviewers should explain that the student must be honest during the interview. Interviewers should also establish that young students understand the difference between the truth and a lie.
Interviewers should also take steps to eliminate confirmation bias and cross-contamination issues when conducting student interviews. The younger the student, the more susceptible the student is to suggestibility. To the greatest extent possible, interviewers should ask open-ended questions that allow students to provide a narrative, rather than a “yes” or “no” response. Interviewers should also direct students not to discuss the interviews with their peers.
Finally, interviewers should take detailed notes and save copies of interview questions and the students’ responses. Following best practices will help maintain the integrity of the investigation and prevent student statements from being called into question in future discipline proceedings.
Dismissal Overturned. [Appeal Pending]
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.
When interviewing student witnesses, school administrators should take steps to avoid confirmation bias and cross-contamination of testimony. Improper interview techniques may undermine a school district’s investigation.
The Details
A teacher faced dismissal charges related to misconduct arising from his interactions with students while teaching high school and second grade. The school district alleged that when teaching second grade, the teacher yelled at students, forced students into kneeling positions to serve “time-out,” and grabbed students by their necks.
After one second grade student accused the teacher of misconduct, the school principal interviewed three additional second grade students. The students were English Language Learners and struggled academically. The principal asked each student witness to write a statement describing the teacher’s misconduct after their interview. Because some of the student witnesses could not write legible statements, the principal and another administrator transcribed the statements.
At hearing, the school district presented no evidence that the administrators admonished student witnesses not to discuss the investigation or their interviews following the meeting with the principal. Further, the principal did not take notes during the student interviews.
At hearing, the principal testified that after two student interviews, she concluded that something inappropriate occurred in the teacher’s classroom.
The teacher’s expert witness questioned the principal’s interview practices and described best practices for interviewing minor students. The expert explained that cross-contamination of witnesses and age are the two key issues when interviewing children. The expert testified that the younger the child, the more susceptible they are to suggestibility. The expert also testified that children with learning differences (including students who are English Language Learners and those who struggle academically) are more susceptible to suggestibility.
The expert opined that the focus of the questions became narrower throughout the investigation and were designed to elicit certain information consistent with the information derived from previous interviews.
The CPC gave significant weight to the expert testimony and determined that it could not conclude that misconduct occurred when the teacher served in second grade. Ultimately, the CPC determined that the school district did not satisfy its burden to terminate the teacher given the principal’s interview techniques and the students’ conversations amongst themselves regarding the investigation.
The teacher also faced a number of charges related to inappropriate conduct with high school students. The district presented evidence that the teacher stared at female students’ breasts and buttocks, invaded their personal space, and made inappropriate comments about female students’ appearances. The district also presented evidence that the teacher maintained motorcycle magazines in his classroom that contained explicit material. However, the CPC found that the district failed to provide sufficient evidence to sustain these charges.
Consequently, the CPC dismissed the charges against the teacher.
Practical Pointers
At the outset of an investigative interview, school district personnel should take steps to build rapport with the student witness. Further, the interviewer should set ground rules that establish there is no “right” or “wrong” answer and the student witness should not provide the answer he/she believes the interviewer wants to hear.
When interviewing students, interviewers should explain that the student must be honest during the interview. Interviewers should also establish that young students understand the difference between the truth and a lie.
Interviewers should also take steps to eliminate confirmation bias and cross-contamination issues when conducting student interviews. The younger the student, the more susceptible the student is to suggestibility. To the greatest extent possible, interviewers should ask open-ended questions that allow students to provide a narrative, rather than a “yes” or “no” response. Interviewers should also direct students not to discuss the interviews with their peers.
Finally, interviewers should take detailed notes and save copies of interview questions and the students’ responses. Following best practices will help maintain the integrity of the investigation and prevent student statements from being called into question in future discipline proceedings.
Dismissal Overturned. [Appeal Pending]
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.
Vol. 20-002, January 27, 2020
Failure to Accommodate an Employee’s Disability May Undermine Disciplinary Action
(OAH Case No. 201800600 (2019).)
The Gist
If an employee’s poor performance is related to the employee’s disability, evidence that the school district failed to appropriately accommodate the employee may undermine district’s ability to dismiss the employee.
The Details
Over three consecutive school years, a psychiatric social worker in the district’s mental health clinic made errors in her paperwork, missed deadlines in submitting and completing documentation, failed to keep accurate records of her time with clients, habitually failed to complete required documentation in a timely manner, and failed to maintain client confidentiality.
During the relevant time period, the social worker’s vision deteriorated and ultimately, it was established that she was legally blind. The social worker informed the school district of her disability and engaged with the district in the interactive process. The district accommodated the social worker by providing an assistant to help enter required data into the district’s electronic system. On several occasions, the social worker informed the district that the assistant was ineffective. However, the district did not augment the provided accommodation.
Despite her disability and due to its performance concerns, the school district moved for her dismissal, charging the social worker with immoral conduct, unprofessional conduct, dishonesty, unsatisfactory performance, evident unfitness for service, and persistent violation of, or refusal to obey school rules and state law.
At the hearing before the CPC, the social worker asserted that the school district failed to provide reasonable accommodations to her for her disability. The social worker also asserted that the assistant provided was ineffective and inaccurate in her work. The social worker argued that if the district had provided her with text-to-speech software, which would have allowed her to directly access the district’s electronic information system, her performance would not have suffered.
The CPC found that it could not determine whether the alleged deficiencies were attributable to the social worker or the district’s failure to provide additional and/or more appropriate accommodations to the social worker. Although the CPC noted that whether the school district violated the ADA and/or FEHA was beyond the scope of its inquiry, because it was clear that the district’s accommodations were not effective or appropriate, the social worker could not be terminated.
Practical Pointers
Failure to accommodate an employee may compromise a school district’s ability to discipline an employee for poor performance. Therefore, school districts should engage all disabled or potentially disabled employees in the interactive process as soon as the district becomes aware of an employee’s disability or has reason to believe the employee is disabled. If the disabled employee can be accommodated, school districts should continue to engage the employee in the interactive process and make appropriate modifications to the provided accommodations to ensure the disabled employee can fulfill all essential job functions of the assigned position.
Dismissal Overturned.
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.
If an employee’s poor performance is related to the employee’s disability, evidence that the school district failed to appropriately accommodate the employee may undermine district’s ability to dismiss the employee.
The Details
Over three consecutive school years, a psychiatric social worker in the district’s mental health clinic made errors in her paperwork, missed deadlines in submitting and completing documentation, failed to keep accurate records of her time with clients, habitually failed to complete required documentation in a timely manner, and failed to maintain client confidentiality.
During the relevant time period, the social worker’s vision deteriorated and ultimately, it was established that she was legally blind. The social worker informed the school district of her disability and engaged with the district in the interactive process. The district accommodated the social worker by providing an assistant to help enter required data into the district’s electronic system. On several occasions, the social worker informed the district that the assistant was ineffective. However, the district did not augment the provided accommodation.
Despite her disability and due to its performance concerns, the school district moved for her dismissal, charging the social worker with immoral conduct, unprofessional conduct, dishonesty, unsatisfactory performance, evident unfitness for service, and persistent violation of, or refusal to obey school rules and state law.
At the hearing before the CPC, the social worker asserted that the school district failed to provide reasonable accommodations to her for her disability. The social worker also asserted that the assistant provided was ineffective and inaccurate in her work. The social worker argued that if the district had provided her with text-to-speech software, which would have allowed her to directly access the district’s electronic information system, her performance would not have suffered.
The CPC found that it could not determine whether the alleged deficiencies were attributable to the social worker or the district’s failure to provide additional and/or more appropriate accommodations to the social worker. Although the CPC noted that whether the school district violated the ADA and/or FEHA was beyond the scope of its inquiry, because it was clear that the district’s accommodations were not effective or appropriate, the social worker could not be terminated.
Practical Pointers
Failure to accommodate an employee may compromise a school district’s ability to discipline an employee for poor performance. Therefore, school districts should engage all disabled or potentially disabled employees in the interactive process as soon as the district becomes aware of an employee’s disability or has reason to believe the employee is disabled. If the disabled employee can be accommodated, school districts should continue to engage the employee in the interactive process and make appropriate modifications to the provided accommodations to ensure the disabled employee can fulfill all essential job functions of the assigned position.
Dismissal Overturned.
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.
Vol. 20-001, January 8, 2020
Dismissal Overturned Due to Principal’s Failure to Address Employee’s Misconduct
(OAH Case No. 2018051034 (2018).)
The Gist
A principal’s knowledge of and failure to correct an employee’s repeated misconduct will be deemed tacit approval of the conduct by the district. Districts must identify and document whether an employee has complied with given directives. If an employee is not provided with notice of non-compliance, the CPC will infer compliance.
The Details
In this case, a high school teacher accepted paid employment as a softball coach for a private school, which required him to leave his district teaching position before the conclusion of the workday on several occasions.
The school district maintained a policy regarding non-school employment, which prohibited employees from engaging outside employment activities that were inconsistent, incompatible, and in conflict with, or inimical to their district duties.
Although the principal did not expressly approve of the teacher’s practice of leaving his assignment before the end of the workday, the principal was aware of the teacher’s conduct.
When a second school administrator later learned of the teacher’s conduct, the teacher was directed to resign from his coaching position. The district maintained the teacher’s employment for a complete school year after issuing this directive. No administrator issued any subsequent notices or directives to the teacher regarding his private coaching job or his practice of leaving work early. The teacher ultimately resigned from his private coaching job on his own accord, and thereafter he refrained from leaving work early.
In addition to the district’s concerns regarding the teacher’s outside employment, the teacher’s performance was substandard. Consequently, the principal issued the teacher a 30-Day Improvement Plan containing several directives to correct his deficiencies.
Shortly thereafter, the teacher was temporarily relieved of his full-time duties due to the expiration of his teaching credential and placed in a substitute position. While serving as a substitute teacher, the district did not expect the employee to comply with directives included in his improvement plan.
In the following school year, the teacher was reemployed by the district on a full-time basis as a regular teacher. However, the principal did not enforce the directives outlined in the 30-Day Improvement Plan or conduct classroom observations to determine whether the teacher’s performance improved.
The school district moved for the teacher’s dismissal based on immoral conduct, dishonesty, evident unfitness for service, and persistent violation of or refusal to obey the school laws of the state or reasonable regulations prescribed for the government of the public schools by the State.
The CPC overturned the dismissal.
With respect to the teacher’s private employment, the CPC found that although the employment was inconsistent, incompatible and in conflict with his instructional duties at the district, it did not warrant dismissal. The CPC reasoned that because the principal was aware of the teacher’s outside employment and did nothing to prevent or modify the teacher’s practice of leaving his assigned position before the end of the workday, the district tacitly approved of the teacher’s conduct. Further, the CPC reasoned that because the teacher remediated his conduct, and the district continued his employment, the teacher was not unfit to teach.
With respect to the performance issues, the CPC found that although the district established that the teacher “struggled to establish and communicate learning goals for all students,” the district did not demonstrate whether the 30-Day Improvement Plan was implemented, or whether after receipt of support and guidance, the teacher continued to exhibit difficulties in the classroom. In the absence of such evidence, the CPC assumed the teacher’s performance improved.
Practical Pointers
School site administrators should be reminded that their actions constitute district action. Therefore, school site administrators must follow through on progressive discipline and consistently admonish employees who violate school or district rules/regulations and fall short of expectations.
Additionally, administrators must monitor employee performance and document continued deficiencies. This is especially true after an administrator issues directives to improve. Failure to identify, document, and address on-going performance concerns may lead a CPC to wrongfully believe that an employee’s performance improved.
Dismissal Overturned.
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.
A principal’s knowledge of and failure to correct an employee’s repeated misconduct will be deemed tacit approval of the conduct by the district. Districts must identify and document whether an employee has complied with given directives. If an employee is not provided with notice of non-compliance, the CPC will infer compliance.
The Details
In this case, a high school teacher accepted paid employment as a softball coach for a private school, which required him to leave his district teaching position before the conclusion of the workday on several occasions.
The school district maintained a policy regarding non-school employment, which prohibited employees from engaging outside employment activities that were inconsistent, incompatible, and in conflict with, or inimical to their district duties.
Although the principal did not expressly approve of the teacher’s practice of leaving his assignment before the end of the workday, the principal was aware of the teacher’s conduct.
When a second school administrator later learned of the teacher’s conduct, the teacher was directed to resign from his coaching position. The district maintained the teacher’s employment for a complete school year after issuing this directive. No administrator issued any subsequent notices or directives to the teacher regarding his private coaching job or his practice of leaving work early. The teacher ultimately resigned from his private coaching job on his own accord, and thereafter he refrained from leaving work early.
In addition to the district’s concerns regarding the teacher’s outside employment, the teacher’s performance was substandard. Consequently, the principal issued the teacher a 30-Day Improvement Plan containing several directives to correct his deficiencies.
Shortly thereafter, the teacher was temporarily relieved of his full-time duties due to the expiration of his teaching credential and placed in a substitute position. While serving as a substitute teacher, the district did not expect the employee to comply with directives included in his improvement plan.
In the following school year, the teacher was reemployed by the district on a full-time basis as a regular teacher. However, the principal did not enforce the directives outlined in the 30-Day Improvement Plan or conduct classroom observations to determine whether the teacher’s performance improved.
The school district moved for the teacher’s dismissal based on immoral conduct, dishonesty, evident unfitness for service, and persistent violation of or refusal to obey the school laws of the state or reasonable regulations prescribed for the government of the public schools by the State.
The CPC overturned the dismissal.
With respect to the teacher’s private employment, the CPC found that although the employment was inconsistent, incompatible and in conflict with his instructional duties at the district, it did not warrant dismissal. The CPC reasoned that because the principal was aware of the teacher’s outside employment and did nothing to prevent or modify the teacher’s practice of leaving his assigned position before the end of the workday, the district tacitly approved of the teacher’s conduct. Further, the CPC reasoned that because the teacher remediated his conduct, and the district continued his employment, the teacher was not unfit to teach.
With respect to the performance issues, the CPC found that although the district established that the teacher “struggled to establish and communicate learning goals for all students,” the district did not demonstrate whether the 30-Day Improvement Plan was implemented, or whether after receipt of support and guidance, the teacher continued to exhibit difficulties in the classroom. In the absence of such evidence, the CPC assumed the teacher’s performance improved.
Practical Pointers
School site administrators should be reminded that their actions constitute district action. Therefore, school site administrators must follow through on progressive discipline and consistently admonish employees who violate school or district rules/regulations and fall short of expectations.
Additionally, administrators must monitor employee performance and document continued deficiencies. This is especially true after an administrator issues directives to improve. Failure to identify, document, and address on-going performance concerns may lead a CPC to wrongfully believe that an employee’s performance improved.
Dismissal Overturned.
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.
Vol. 17-007, September 20, 2017
Dismissal Upheld after Teacher Rejects Remediation Efforts
(OAH Case No. 2016050044 (2017).)
The Gist
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.
- 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.
Vol. 17-006, July 24, 2017
School Counselor Dismissed Based on Failure to Comply with Suicide Prevention Policy
(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.”
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.
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.
Vol. 17-005, June 26, 2017
Suspension Overturned Because Evidence Failed to Establish Use of Improper Physical Contact with Students
(OAH Case No. 2016120176 (2017).)
The Gist
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.
- 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.
Vol. 17-004, May 26, 2017
District Required to Reinstate Teacher After Failing to Prove Inappropriate Touching of Students
(OAH Case No. 2016060348 (2017).)
The Gist
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.
- 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.
Vol. 17-003, May 17, 2017
Dismissal Overturned Based on Biased Investigation and Lack of Conclusive Evidence to Support Investigator’s Findings
(OAH Case No. 2016040305 (2017).)
The Gist
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.
- 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.
Vol. 17-002, May 3, 2017
Teacher Dismissed for Working Out of State while on Paid Sick Leave
(OAH Case No. 2016070474 (2017).)
The Gist
● Misuse of leave may constitute dishonest conduct and warrant dismissal
● Leave forms should require employees to certify their appropriate use of leave
● Proper monitoring of employee leave may reduce employee abuse of leaves
The Details
In this case, on two occasions, a second-grade teacher took paid sick leave and agreed, under penalty of perjury, not to be employed elsewhere during her regular work hours while on leave. On both occasions while on paid leave, she worked for a school district in Florida.
The school district’s Certificated Request for Leave of Absence form included a section stating in relevant part: “I certify I was not and will not be employed elsewhere during my regular work hours within the time period claimed on this certification.” Just below this text, the form further provided: “I declare under penalty of perjury that I have read the paragraph above, and it is true and correct.” The teacher took paid sick leave from January 13, 2015 through May 30, 2015. Thereafter, the teacher traveled to Florida and worked as a teacher in a public school for 16 days while on paid leave.
The teacher returned in time to work two days before the end of that school year. On the first day of the 2015-2016 school year, the teacher took another paid leave and signed the same form, certifying she would not work while on paid leave. During her second leave period, she worked in Florida for five days, and applied for employment in Florida during that time.
The CPC unanimously found the teacher’s conduct was dishonest, that she refused to obey school laws and that she engaged in unprofessional conduct by making false statements. The CPC found the teacher’s claim that she did not work during “work hours” given the time difference between Florida and the west coast damaged her credibility. The CPC also noted that she appeared to have little remorse for her actions.
Practical Pointers
Employee leaves place a heavy burden on clients, and managing leaves can be time consuming for human resources departments. Further, abuse of leave seems to be an increasing problem for school districts. This case supports the argument that teachers who dishonestly represent the purpose of leave and/or use that leave for improper purposes may be dismissed. This case also illustrates the importance of having key safeguards in place, including updated school district forms concerning leaves of absences. It further demonstrates that monitoring employee use of leave can result in dismissal of unprofessional or dishonest employees who abuse paid leave.
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.
● Misuse of leave may constitute dishonest conduct and warrant dismissal
● Leave forms should require employees to certify their appropriate use of leave
● Proper monitoring of employee leave may reduce employee abuse of leaves
The Details
In this case, on two occasions, a second-grade teacher took paid sick leave and agreed, under penalty of perjury, not to be employed elsewhere during her regular work hours while on leave. On both occasions while on paid leave, she worked for a school district in Florida.
The school district’s Certificated Request for Leave of Absence form included a section stating in relevant part: “I certify I was not and will not be employed elsewhere during my regular work hours within the time period claimed on this certification.” Just below this text, the form further provided: “I declare under penalty of perjury that I have read the paragraph above, and it is true and correct.” The teacher took paid sick leave from January 13, 2015 through May 30, 2015. Thereafter, the teacher traveled to Florida and worked as a teacher in a public school for 16 days while on paid leave.
The teacher returned in time to work two days before the end of that school year. On the first day of the 2015-2016 school year, the teacher took another paid leave and signed the same form, certifying she would not work while on paid leave. During her second leave period, she worked in Florida for five days, and applied for employment in Florida during that time.
The CPC unanimously found the teacher’s conduct was dishonest, that she refused to obey school laws and that she engaged in unprofessional conduct by making false statements. The CPC found the teacher’s claim that she did not work during “work hours” given the time difference between Florida and the west coast damaged her credibility. The CPC also noted that she appeared to have little remorse for her actions.
Practical Pointers
Employee leaves place a heavy burden on clients, and managing leaves can be time consuming for human resources departments. Further, abuse of leave seems to be an increasing problem for school districts. This case supports the argument that teachers who dishonestly represent the purpose of leave and/or use that leave for improper purposes may be dismissed. This case also illustrates the importance of having key safeguards in place, including updated school district forms concerning leaves of absences. It further demonstrates that monitoring employee use of leave can result in dismissal of unprofessional or dishonest employees who abuse paid leave.
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.
Vol. 17-001, May 2, 2017
Psychologist Dismissed for Circulating Confidential Information and Falsifying Residency Form
(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
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.”
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.
Copyright © 2020 Adams Silva McNally LLP. All rights reserved.
● Willful disclosure of confidential student information for improper purposes may warrant dismissal
● Falsification of school district forms for personal advantage may also support dismissal
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.”
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.
Copyright © 2020 Adams Silva McNally LLP. All rights reserved.
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