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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.