Opinion
FSTCV166027763
06-29-2017
Donna Valentine v. Stamford Board of Education
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S APPEAL
Hon. Charles T. Lee, J.
The plaintiff, Dr. Donna Valentine, appeals from the decision of the defendant, the Stamford Board of Education, dated January 26, 2016, terminating her employment as principal of Stamford High School in the City of Stamford. The plaintiff brings this appeal pursuant to General Statutes § 10-151(e). As more fully explained below, the court affirms the Board's decision and dismisses this appeal.
Background
A review of the complaint, answer, and record in this appeal reveals the following undisputed facts. From July 1, 2010, through January 26, 2015, the plaintiff was employed by the defendant as a school administrator, primarily as the principal of Stamford High School. During the school year 2013-2014, a student at Stamford High School (Student A) engaged in a sexual relationship with his teacher, Danielle Watkins. On or about June 23, 2014, Ms. Watkins was placed on administrative leave. On June 23, 2014, a report of the sexual relationship was made to the Department of Children and Families, as required by General Statutes § § 17a-101 and 101b(d). On July 17, 2014, Ms. Watkins was arrested and subsequently pleaded guilty to the charge of sexual assault in the second degree (C.G.S. § 53a-71(a)(8)). Ms. Watkins is currently serving a ten-year prison sentence, suspended after five years, followed by probation for fifteen years.
On October 2, 2014, Dr. Valentine was arrested on a charge of failure to report child abuse in violation of C.G.S. § 17a-101b(d), which is a Class A misdemeanor. On October 3, 2014, the superintendent of Stamford public schools, Dr. Winifred Hamilton, placed the plaintiff on paid administrative leave with full benefits as a result of the arrest. On November 19, 2014, Dr. Valentine was granted accelerated rehabilitation, and the charge against her was dismissed on November 21, 2014. In December 2014, the City of Stamford retained the law firm Pullman & Comley to investigate any failures in the school district that allowed this relationship to occur. On or about December 15, 2014, during a press conference, the superintendent announced that the plaintiff would not be returning to Stamford High School. On April 24, 2015, Pullman & Comley issued its report (Pullman & Comley report) detailing the circumstances surrounding the relationship between Student A and Ms. Watkins and the actions of Stamford Public School staff in response to the incident. The Pullman & Comley report concluded that Dr. Valentine failed to protect Student A, failed to comply with her statutory obligation to report the allegations to the Department of Children and Families (DCF) or the Stamford Police Department, and failed to intervene to stop Ms. Watkins' illegal conduct.
As of May 2015, the plaintiff was a " tenured teacher" within the meaning of General Statutes § 10-151, the Teacher Tenure Act. On May 8, 2015, Superintendent Hamilton sent the plaintiff a letter, stating that termination of the plaintiff's employment was under consideration. This letter stated in relevant part:
Please be advised that in accordance with [General Statutes § 10-151], termination of your employment with the Stamford Public Schools is under consideration. The reasons are as follows: 1. Inefficiency; 2. Incompetence; 3. Ineffectiveness; 4. Insubordination against reasonable rules of the Board of Education; 5. Moral misconduct; 6. Other due and sufficient cause. More specifically you: (A) failed to timely report to either the Department of Children and Families or the Stamford Police Department, allegations of a sexual relationship between teacher Danielle Watkins and a Stamford High School student (the " Student"); (B) otherwise failed to take steps, upon learning of the allegations of the sexual relationship, to protect the Student from further harm; (C) otherwise mishandled the above referenced situation; (D) poor leadership of Stamford High School including as detailed in the recent NEASC Report, resulting among other things, in a lack of confidence on the part of students in your leadership, and/or school staff, and overall inadequate performance of the school; (E) failed to provide a safe environment for children; (F) contributed to the erosion of the public trust, both within the schools, and in the community. You have the right to request a hearing in writing, within ten (10) days of receipt of this letter.
On or about May 19, 2015, the plaintiff sent a letter to the superintendent requesting a private hearing to contest the termination before a neutral third-party hearing officer pursuant to § 10-151(d). The parties subsequently selected Attorney Peter Adomeit to serve as the impartial hearing officer. The hearing officer conducted an evidentiary hearing over the course of six days in July and August 2015, at which fourteen witnesses testified and various exhibits were submitted. The parties submitted post-hearing briefs and reply briefs on or about October 17, 2015, and October 23, 2015, respectively. On or about January 11, 2016, the hearing officer issued Findings of Fact and Recommendations (cited " FOF"), which included 270 findings and various recommendations and conclusions of law. In particular, the hearing officer found that the evidence supported termination on four of the six grounds contained in the superintendent's letter of May 8, 2015, i.e., moral misconduct, insubordination, inefficiency and other due and sufficient cause.
On January 25, 2016, the defendant Board of Education held a meeting at which the plaintiff and the superintendent presented oral argument regarding whether the Board should accept the hearing officer's recommendation to terminate the plaintiff's employment. The members of the defendant Board voted to accept the Findings of Fact and Recommendations of the hearing officer and voted to terminate the plaintiff's employment, effective January 26, 2016, on the four grounds listed in the hearing officer's report. The Board notified the plaintiff of the decision by letter dated January 26, 2016 and attached a copy of the hearing officer's report (the " Termination Decision").
The Termination Decision described the four grounds for termination as follows:
1. Inefficiency --Dr. Valentine's actions and inaction constitute " inefficiency" under the statute and provide sufficient ground to terminate Dr. Valentine.
2. Insubordination against reasonable rules of the Board of Education --Dr. Valentine violated a Board rule, repeatedly, and in the process was being insubordinate against the reasonable rules of the Board of Education. She was aware of the rule and failed to follow it.
3. Moral Misconduct --Dr. Valentine failed to report the moral misconduct of Ms. Watkins, failed to protect the Student from ongoing sexual assault though having the means to put a stop to it and failed to protect the Student. Dr. Valentine, because of her position as Principal, and being responsible for the safety of the children in her school, was under a moral compulsion as Principal to intervene directly with Mrs. Watkins and the Student, but she failed to do so.
4. Other due and sufficient cause --Dr. Valentine knew or should have known that her consistent failure over the course of months to not [sic] intervene and not report the sex would produce an adverse public reaction of significant intensity and duration, and her failure to act would and did constitute a clear threat to the reputation of Stamford High School and the school system and the City of Stamford. Leaving Dr. Valentine in place would create more public outcry and the students of Stamford High School would continue to feel unsafe. Dr. Valentine has threatened teachers with retribution if they spoke out. Dr. Valentine's conduct, as described in the Findings of Fact has had a negative impact on the Stamford School System. No school can operate with so divisive and ineffective a leader.
The plaintiff commenced this appeal on February 23, 2016. The defendant filed its answer and the return of record on April 27, 2016. Following its July 8, 2016 motion to file portions of the record and briefs under seal, and this court's ruling on that motion on September 12, 2016, the defendant filed a revised, redacted return of record on October 11, 2016, which protected, among other things, the identity of Student A, who was a minor at the time of the commencement of the affair with his teacher. The plaintiff subsequently filed a memorandum in support of her appeal with exhibits on November 23, 2016. The defendant filed its opposition memorandum on January 3, 2017. The plaintiff filed a reply memorandum on January 24, 2017. The court heard oral argument on this appeal on February 6, 2017.
Contentions of the Parties
The plaintiff argues that the defendant's termination decision substantially prejudiced her rights to a fair decision-making process in several ways and should be overturned. Specifically, the plaintiff argues that (1) the decision fails to meet due process requirements because it lacks meaningful detail regarding the basis for the board's conclusions; (2) it violates the plaintiff's due process rights to the extent it is based on poor leadership or upon any reason other than those based on the relationship between the teacher, Danielle Watkins, and the student (Student A); (3) the hearing officer's findings report upon which the board based its decision was fundamentally flawed and unreliable; (4) the decision was arbitrary, capricious, and constituted an abuse of discretion; (5) procedural defects occurring throughout the proceedings violated the plaintiff's due process rights; (6) the decision's grounds of insubordination and inefficiency are erroneous as a matter of law; and (7) the decision constitutes a violation of the plaintiff's right against double jeopardy.
In its opposition brief, the defendant Board maintains that substantial evidence in the record supports the defendant's termination decision and that the plaintiff's arguments to set aside the decision are without merit. For the reasons discussed below, the court agrees with the defendant, affirms the defendant's decision, and dismisses the appeal. Because the court finds substantial evidence supporting Dr. Valentine's termination for moral misconduct and other due and sufficient cause, it does not address her arguments relating to inefficiency and insubordination.
Jurisdiction
General Statutes § 10-151(e) provides in relevant part that " [a]ny teacher aggrieved by the decision of a board of education after a hearing . . . may appeal therefrom . . . to the Superior Court." " To be an aggrieved person, one must be affected directly or in relation to a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest such as is the concern of all members of the community, and the appellant must be specifically and injuriously affected as to property or other legal rights." Smith v. Planning & Zoning Board, 203 Conn. 317, 321, 524 A.2d 1128 (1987).
Because the plaintiff's employment was terminated as a result of the Board's decision, the court finds that Dr. Valentine has demonstrated aggrievement.
Standard of Review
General Statutes § 10-151(e) governs an appeal by a tenured teacher from the decision of a board of education. Section 10-151(e) provides, in relevant part: " The court, upon such appeal, shall review the proceedings of such hearing . . . [and] may affirm or reverse the decision appealed from in accordance with subsection (j) of section 4-183."
General Statutes § 4-183(j) states in relevant part: " The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
" We note that General Statutes § 4-183(j) is within the uniform administrative procedures act (UAPA). See General Statutes § 4-166 et seq. Generally, a board of education considering a termination of a tenured teacher's employment contract acts in a quasi-judicial capacity . . . a board of education is not an administrative agency as defined by the Uniform Administrative Procedures Act (UAPA) . . . and is not subject to the provisions of the UAPA. (Citations omitted.) Rogers v. Board of Education, supra, 252 Conn. at 763-64, 749 A.2d 1173 (2000). Although the board is not subject to every provision within the UAPA, § 10-151(e) specifically prescribes that termination pursuant to § 10-151(d) must conform with § 4-183(j)." (Internal quotation marks omitted.) Langello v. Board of Education, 142 Conn.App. 248, 265 n.12, 65 A.3d 1 (2013).
" When considering termination of a tenured teacher's employment contract, a school board acts, like an administrative agency, in a quasi-judicial capacity . . . Consequently, on appeal from a school board decision, the proper scope of review is that applicable to administrative appeals." (Citations omitted; internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 712, 629 A.2d 333 (1993). " Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable." (Internal quotation marks omitted.) Rogers v. Board of Education, 252 Conn. 753, 768, 749 A.2d 1173 (2000).
" Judicial review of the school board's administrative decision follows established principles of administrative law. The court's ultimate duty is only to decide whether, in light of the evidence, the [board] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion . . . Conclusions of law reached by the [board] must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically flow from such facts." Rogers v. Board of Education, supra, 252 Conn. 761.
On review of a school board decision, " it is not the function of the trial court . . . to retry the cause. The defendant board is an administrative agency, although it acts in a quasi-judicial capacity. To render a decision, it must weigh evidence and reach conclusions . . . The credibility of witnesses and the determination of issues of fact are matters within its province. (Citations omitted; internal quotation marks omitted.) Conley v. Board of Education, 143 Conn. 488, 492, 123 A.2d 747 (1956); Gibson v. State Medical Examining Board, 141 Conn. 218, 221-22, 104 A.2d 890 (1954)." (Internal quotation marks omitted.) Tomlinson v. Board of Education, supra, 226 Conn. 713.
" In reviewing decisions made by an administrative agency, a reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given." (Internal quotation marks omitted.) Adriani v. Commission on Human Rights & Opportunities, 228 Conn. 545, 550-51, 636 A.2d 1360 (1994).
Discussion
A. Substantial Evidence Exists in the Record to Support the Board's Termination of Plaintiff's Employment
At the heart of this appeal is Dr. Valentine's contention that the Board had no grounds to terminate her employment based on her handling of the affair between Student A, a minor when the affair started, and his English teacher, Ms. Watkins. Plaintiff further contends that many of the findings of the hearing officer are wrong because they are based on unbelievable testimony. The plaintiff argues that the findings report was " fundamentally flawed" in several ways, specifically: (1) it contained factual findings that were clearly erroneous in view of the reliable, probative and substantial evidence; (2) it contained findings that were arbitrary, capricious, and characterized by an abuse of discretion; (3) it contained inappropriate commentary and opinions, misapplied the hearing officer's legal duties pursuant to § 10-151, and exceeded his authority; and (4) was affected by numerous errors of law. The plaintiff maintains that these flaws violated and substantially prejudiced the plaintiff's rights to a fair decision-making process in that it deprived the defendant Board of a fair, accurate, and complete picture upon which to rest its decision. These contentions must be addressed first because plaintiff's procedural and due process complaints are reached only if there was an adequate factual basis for the plaintiff's termination in the first place.
General Statutes § 10-151(d) provides that a tenured teacher may be terminated on one or more of six grounds: " The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for one or more of the following reasons: (1) Inefficiency, incompetence or ineffectiveness . . .; (2) insubordination against reasonable rules of the board of education; (3) moral misconduct; (4) disability, as shown by competent medical evidence; (5) elimination of the position . . .; or (6) other due and sufficient cause."
As discussed below, the court finds substantial evidence in the record to support plaintiff's termination on the grounds of moral misconduct and other due and sufficient cause.
1. Moral Misconduct
Applicable Standards
In Rado v. Board of Education, 216 Conn. 541, 583 A.2d 102 (1990), our Supreme Court affirmed the termination of a teacher on grounds of moral misconduct. The teacher had been found to have recorded the conversations of other teachers without their consent using the school's telephone system and to have played them in front of others. The court discussed the applicable standard as follows:
Of the six grounds for termination of the employment of a tenured teacher set forth in § 10-151(d), the board in discharging the plaintiff relied on " moral misconduct" and the catchall, " other due and sufficient cause." We have not previously defined " moral misconduct" for the purpose of § 10-151(d), nor do we find it necessary in this case to essay a comprehensive definition of that term. The finding of the panel that the plaintiff had tampered with the school telephone system for the purpose of overhearing conversations of other persons involves conduct proscribed by § 53a-189, which makes such eavesdropping a class D felony. A legislative determination that certain conduct should be punished as a crime is highly significant in deciding whether it constitutes " moral misconduct." The conclusion of the board that the plaintiff's behavior fell within this classification, therefore, cannot be characterized as arbitrary or illegal. Id., 553.
Similarly, in Gedney v. Board of Education, 47 Conn.App. 297, 703 A.2d 804 (1997), cert. denied, 243 Conn. 968, 707 A.2d 1268 (1998), the Appellate Court upheld the decision of a school board to terminate a teacher arrested for possession of cocaine and drug paraphernalia, who subsequently received accelerated rehabilitation. The court reasoned,
In its decision, the board relied on the hearing officer's findings that the plaintiff's misconduct rose to the level of activity deemed by the legislature to be a crime. Like the teacher's misconduct in Rado, the plaintiff's criminal conduct undermines his ability to work effectively with other faculty members, sets a poor example for students and reflects personal values inconsistent with his continued employment as a fourth grade teacher. Similar to the Naugatuck school board's decision in Rado, the Groton school board's determination that such activity constitutes " moral misconduct" for the purposes of § 10-151(d) " cannot be characterized as arbitrary or illegal [or irrational]." Id. at 553, 583 A.2d 102. We, therefore, hold that the plaintiff in this case was properly terminated for " moral misconduct" and " other due and sufficient cause" . . . Id., 304.
Applying these principles to the present case, the Board's decision to terminate Dr. Valentine for moral misconduct should be affirmed, provided the record contains substantial evidence supporting plaintiff's violation of General Statutes Sections 17a-101a-d for failure to report the sexual abuse of a minor to the Department of Child and Family Services or a law enforcement agency.
Connecticut law is clear that even a suspicion of child abuse should be reported by a mandated reporter. General Statutes § 17a-101(b) states in relevant part that: " The following persons shall be mandated reporters . . . (9) any school employee, as defined in section 53a-65 . . ." Section 17a-101a then provides that: " Any mandated reporter, as described in section 17a-101, who in the ordinary course of such person's employment or profession has reasonable cause to suspect or believe that any child under the age of eighteen years (A) has been abused or neglected, as described in section 46b-120 . . . shall report or cause a report to be made in accordance with the provisions of sections 17a-101b to 17a-101d, inclusive." Sections 17a-101b through 17a-101d require that the mandated reporter make an oral report to the Commissioner of Children and Families or law enforcement within twelve hours of having reasonable cause to suspect or believe that a child is being abused or neglected and follow that oral report with a written report no later than forty-eight hours after the oral report. " Nothing in the General Statutes requires a mandated reporter to undertake . . . further investigation." (Internal quotation marks omitted.) Morales v. Kagel, 58 Conn.App. 776, 781-82, 755 A.2d 915 (2000). In addition, General Statutes § 17a-101a(d) provides in relevant part: " a mandated reporter's suspicion or belief may be based on factors including, but not limited to, observations, allegations, facts or statements by a child, victim . . . or third party. Such suspicion or belief does not require certainty or probable cause."
General Statutes § 53a-65(1) includes " school administrator" as one of the positions considered a school employee.
General Statutes § 46b-120(7)(C) defines abused as: " is in a condition that is the result of maltreatment, including, but not limited to, malnutrition, sexual molestation or exploitation, deprivation of necessities, emotional maltreatment or cruel punishment."
General Statutes § 17a-101b(a) provides that: " An oral report shall be made by a mandated reporter as soon as practicable but not later than twelve hours after the mandated reporter has reasonable cause to suspect or believe that a child has been abused or neglected . . . to the Commissioner of Children and Families or a law enforcement agency." Section 17a-101c provides that: " Not later than forty-eight hours after making an oral report, a mandated reporter shall submit a written report to the Commissioner of Children and Families or the commissioner's designee." Section 17a-101d includes a list of required information that the mandated reporter should include in both the oral and written reports.
Findings of the Impartial Hearing Officer
The hearing officer made the following material findings, in pertinent part:
FOF 12--Dr. Valentine failed to timely report to either the Department of Children and Families (DCF) or law enforcement authorities the allegations of a sexual affair between Student A and Ms. Watkins.
FOF 13, 70--Student A's affair with his English teacher, Ms. Watkins, started in the September 2013, when he was seventeen. The affair continued until after Student A's graduation in June 2014.
FOF 46--Student A was in the custody of the DCF, which arranged for him to live at DOMUS, which provides services to high risk youth, and which assumed custody of Student A.
FOF 75--Sometime before Christmas, Student A went to Dr. Valentine's office. Tearfully, he told Dr. Valentine about the sexual relationship with Ms. Watkins. Dr. Valentine told him she knew all about it, that he should not worry about it, and that he should focus on passing English and graduating.
FOF 78--During February or March 2014, a DOMUS administrator expressed concern to School Resource Officer Stackpole and Dr. Valentine that Ms. Watkins was calling Student A frequently and was driving him to and from school. She expressed concern that the calls seemed odd and " inappropriate."
FOF 86, 87--Also in February or March 2014, a student told James Jordan, a security guard at Stamford High School (SHS), that Student A and Ms. Watkins were having sex. Jordan relayed this to Assistant Principal Roth Nordin. Subsequently, Dr. Valentine called Jordan into her office, where he repeated what he had heard. Dr. Valentine told Jordan she had heard about this and asked him to keep an eye on Ms. Watkins.
FOF 80 (at 33)--Ms. Nordin's written statement of June 6, 2014 said she learned of the relationship in April.
FOF 81 (at 34)--Dr. Valentine heard rumors around April 15 that Student A was seen driving Ms. Watkins' car in and around the school parking lot.
FOF 87, 90 (at 35)--On or about May 13, 2014, Student B spoke in class about rumors of a teacher who taught him freshman year who was sleeping with a student. The class teacher spoke to Student B and asked him if he thought the rumors were true. He answered in the affirmative and said he had seen them in her car. The class teacher drafted an email to herself about the remarks, and sent a copy to Assistant Principal Thomas--Graves.
FOF 94, 97 (at 36-37)--On May 14 or 15, Dr. Valentine called Student B into her office, where Student B repeated the rumors he had heard and identified Ms. Watkins. Dr. Valentine told Student B he knew about them, that he should tell her if he heard anything else and not to talk about it with anyone else. Subsequently, Student B reported to Dr. Valentine when he saw Student A in Ms. Watkins' car.
FOF 96 (at 37)--On May 15, 2014, Dr. Valentine instructed Ms. Nordin to observe Ms. Watkin's class.
FOF 98 (at 39)--In mid-May, Dr. Valentine told Officer Stackpole that a teacher might be having an affair with a student.
FOF 100--In late May, Dr. Valentine told Assistant Superintendent Michael Fernandes that a student was driving a teacher's car and might be having a sexual relationship with her.
FOF 102--On May 28, 2014, Dr. Valentine called Assistant Principal Matthew Forker and told him that Ms. Watkins might be in an irregular relationship with a student and asked him to monitor her. On June 4, Forker confirmed that he saw her speaking with Student A outside the building.
FOF 104--At the same time, Dr. Valentine asked Officer Stackpole to check the parking lot.
FOF 107--On June 3rd, Dr. Fernandes spoke with outside counsel, who advised him to obtain statements regarding the allegations of an inappropriate relationship. Dr. Fernandes instructed Dr. Valentine to gather these statements, and she sent several of them, including her own, to Dr. Fernandes on June 6th.
FOF 114, 115--Dr. Valentine asked Student B to put in writing his information about the rumors linking Ms. Watkins and Student A. Although fearful of doing so, Student B prepared a statement and gave it to Dr. Valentine on June 18, 2014.
FOF 116--After receiving a copy of the statement on June 18, 2014, Dr. Fernandes told the human resources director to put Ms. Watkins on leave and begin investigating the matter. Ms. Watkins was put on leave on June 23, 2014.
FOF 117, 118, 120, 121--Also on June 23, 2014, Mr. Joshua Brown, Student A's guardian at DOMUS, called Superintendent Hamilton and told her that Student A had told him he was having an affair with Ms. Watkins and that he was afraid Ms. Watkins' husband would kill him. Dr. Hamilton told him to call DCF and the police. Someone at DOMUS did notify DCF. Dr. Hamilton caused a police report and DCF report to be filed on June 23, 2014.
FOF 121--On the same day, Mr. Brown also called Ms. Valentine to tell her what Student A had reported.
FOF 122--Dr. Valentine at no time asked Student A or Ms. Watkins about the allegations.
FOF 144--Dr. Valentine was arrested on October 2, 2014 for failure to report the sexual abuse to the DCF or the police in violation of C.G.S. § 17a-101b(d).
FOF 146--Dr. Hamilton placed Dr. Valentine on administrative leave, with full pay and benefits, the next day in light of the arrest.
FOF 149--Subsequently, a reporter for the Stamford Advocate notified school officials of anonymous comments by educators at SHS saying they were worried about retribution; that they did not want Dr. Valentine to return; they were frustrated by the lack of discipline of students; that it was mind-boggling to consider her reinstatement; and that her authority had been undermined.
FOF 150, 200--An Advocate article said that fear permeated the school system and SHS teachers were afraid to speak out against Dr. Valentine for fear of retaliation and litigation. News of the relationship " rocked the city, " and media coverage was extensive.
FOF 151--During this time period, Dr. Valentine hired a lawyer to threaten to sue teachers for libel if they proceeded with a vote of no confidence. The teachers desisted from taking such a vote.
FOF 153-56--The editors of the school newspaper organized a student poll in which 500 students participated, with eighty percent indicating that they had no confidence in Dr. Valentine.
FOF 161--On December 15, 2014, Dr. Hamilton held a press conference with Stamford Mayor David Martin, Corporation Counsel Kathryn Emmett and Board of Education President Jackie Heftman, where Dr. Hamilton said that, pursuant to her authority under the collective bargaining contract, Dr. Valentine would be transferred out of SHS and would not return, and that her status would be determined at the conclusion of an independent investigation. Ms. Heftman confirmed that the controversy was causing a lack of public support for the yearbook and asked the public to show its support by buying advertisements in the yearbook.
FOF 163--Also on or about December 15th, Dr. Hamilton advised Dr. Valentine that she was being transferred " in the best interest of the school district" considering the " present climate at SHS." She also advised that students, teachers and parents were complaining of the distraction caused by the episode and that the environment in the school had become " toxic."
FOF 169, 173--The City of Stamford retained the firm of Pullman & Comley to conduct an investigation into the response to the sexual assault. The inquiry was led by former Superior Court Judge Robert Holtzberg. The team interviewed 48 witnesses, including Dr. Valentine, and reviewed thousands of documents.
FOF 187--The team produced a report which concluded, Stamford High School Principal Dr. Valentine and Assistant Principals Angela Thomas-Graves and Roth Nordin failed to:
1. Protect [Student A]
2. Comply with their statutory obligations to report the allegations to DCF;
3. Comply with their statutory obligations to report the allegations to SPD; and
4. Intervene to stop Mrs. Watkins' illegal conduct.
FOF 191-94--Administrators other than Dr. Valentine were disciplined in various ways.
FOF 195--" Dr. Valentine had knowledge of a possible student-teacher sexual relationship for weeks or months without addressing the matter with Student A or Mrs. Watkins directly or making a report to DCF. Dr. Valentine failed to take appropriate steps upon learning of the allegation of the sexual relationship to protect the student from further harm. As a result of this failure, the sexual assault of Student A continued until late June, when it could have been terminated sooner."
In his Recommendations and Conclusions of Law (at 79-82), the Hearing Officer found substantiation for four grounds of misconduct:
1. Moral Misconduct for failure to report and put a stop to the sexual assault, and instead focusing on terminating Watkins; gross negligence in failing to report reasonable suspicion of abuse; violation of the mandatory reporting statute. 2. Insubordination. 3. Inefficiency. 4. Other Due and Sufficient Cause (at 90): including Threat to teachers with lawsuit if voted no confidence;
Sense of fear of retribution;
Turmoil after Pullman & Comley report;
Lack of community support for fundraiser;
Newspaper report and negative media attention;
Toxic environment;
Adverse public reaction and threat to reputation of SHS and system.(The Superintendent chose not to assert incompetence and ineffectiveness in its post-hearing brief.)
The hearing officer found (at 91) that, like the plaintiff in Rado, supra, Dr. Valentine's behavior had undermined her capacity to work with fellow staff members, that she set a poor example, and reflected personal values inconsistent with continued employment. He also found that the Administration's decision to terminate Dr. Valentine had been based on an extensive investigation, and that Dr. Valentine's reinstatement would create a public outcry, and students would continue to feel unsafe. Accordingly, the hearing officer recommended termination of Dr. Valentine's employment. Id.
Analysis
After reviewing the transcripts of testimony at the termination hearing and the exhibits submitted by Dr. Valentine and the Superintendent, the court holds that the Findings of the hearing officer cited above were supported by substantial evidence in the record, except as noted below. The Findings provide support for the Board's decision to terminate Dr. Valentine for moral misconduct in that they demonstrate that she violated the statutory requirements for reporting an act of sexual assault affecting a minor. The Findings establish that Dr. Valentine had a reasonable basis to suspect that Ms. Watkins was having an affair with Student A not later than May 15, 2014, but that Dr. Valentine did not report the concern to the DCF or the police as required by statute.
The plaintiff, via color coding, has challenged over one hundred of the Findings of Fact, claiming that they were clearly erroneous; arbitrary, capricious and characterized by an abuse of discretion; in excess of the hearing officer's authority; and affected by numerous errors of law.
The plaintiff raises twelve specific objections to the Findings, and it is those issues that the court addresses below.
1. The Hearing Officer erroneously claims that Dr. Valentine " did nothing" after receiving a call from Joshua Brown on June 23rd disclosing the relationship. (Appeal Brief, at 25.)
Plaintiff claims she called various administrative personnel and Mr. Brown in relation to the statements of Mr. Brown. However, this objection misses the point: Dr. Valentine, by her own admission, failed to notify the DCF or police. Transcript of Termination Hearing (" Tr."), Volume VI, August 8, 2015, Valentine testimony, 135.2 (plaintiff apologized at accelerated rehabilitation hearing, " My colleagues and I should have reported sooner than we did"); 115.19-20 (plaintiff took no affirmative step to protect the child). Further, the Findings and the record support the conclusion that Dr. Valentine had reason to suspect the existence of the affair considerably earlier, but did not report them as required by statute. Id., 105.3 (plaintiff claims she learned of sexual misconduct and identities of participants in May); Plaintiff's Exhibit Y, Statement of Ms. McLaughlin, a DOMUS employee (told plaintiff of belief that relationship between Ms. Watkins and Student A was inappropriate in February or March); Superintendent Exhibits 1 and 25 (Security Officer Jordan reports rumor of sexual activity to Assistant Principal Nordin, who reports to Dr. Valentine, sometime in February to April).
2. The Hearing Officer erroneously claims that Dr. Valentine became aware of the sexual relationship between Student A and Ms. Watkins in December 2013 after discussing it with Student A. (Id. at 27).
The court agrees that this Finding is clearly erroneous in light of Student A's contradictory statements to the police and to Pullman & Comley. However, the December 2013 meeting is not necessary to the claims against Dr. Valentine.
3. The Hearing Officer erroneously claims that Dr. Valentine became aware of the Student A-Watkins relationship sometime in February or March based upon a conversation with SHS Security Guard James Jordan. (Id. at 29.)
This Finding is based on the hearing officer's decision to credit Mr. Jordan's testimony (cited above) over Dr. Valentine's, which is within his discretion. That the communication may have occurred via Ms. Nordin is unimportant. It stands as evidence that Dr. Valentine was learning of rumors about the affair in the winter of 2014. Further, plaintiff does not mention or try to discredit the Finding (No. 78) regarding her meeting with Ms. McLaughlin of DOMUS in the Winter of 2014 where she advised that there was odd and inappropriate behavior occurring between Ms. Watkins and Student A.
4. The Hearing Officer erroneously claims that Dr. Valentine Altered a Letter Written by Mr. Jordan. (Id. at 32.)
Plaintiff disagrees with the hearing officer's conclusion here, but the court finds (a) that it involves a peripheral issue, and (b) that the Hearing Officer had sufficient evidence to support the Finding. Tr., Vol. II, July 24, 2015, Jordan testimony at 156-58; Superintendent Exhibit 1 (several differing versions of Jordan's June 6, 2014 statement). In any event, the change at issue is simply to move the date of the Jordan conversation discussed above from February-March to March-April, which is not a meaningful difference.
5. Omission of Consideration of Dr. Valentine's Past Performance. (Id. at 36.)--This is not relevant to a finding of moral misconduct.
6. The Hearing Officer Applied Inconsistent Reasoning in Reaching his Factual Determinations. (Id. at 41.) Plaintiff complains that the Hearing Officer stated that the police reports on balance were not very reliable, but quotes from them with respect to Dr. Valentine's police interview.
Plaintiff also complains that the Hearing Officer does not state that the Pullman & Comley Report in actuality was 145 pages in length and did not quote various other passages from the Report. The court does not find these observations to be material or to affect the adequacy of the primary findings upon which the termination decision was made.
Plaintiff also claims it was arbitrary and capricious not to find that she had informed Officer Stackpole of the affair during the Spring of 2014. Aside from the obvious inconsistency of this defense with Dr. Valentine's contention that she did not know of the affair until considerably later, Officer Stackpole did not confirm this contention because he said he did not know the names of the people involved in the rumors. Tr. Vol. I, July 21, 2015, Stackpole testimony at 86-66, 93, 96-98 (no names mentioned). The discussion with Officer Stackpole would not constitute adequate notice under Section 17a-101d (Contents of oral and written reports) and would not satisfy the mandatory requirement of a written report under section 17a-101c.
7. The Findings Report Mischaracterizes Compliance with the Title IX and Sexual Harassment Policies of the Stamford School System. (Id. at 46)--This is irrelevant to charges of moral misconduct.
8. Plaintiff Disagrees with the Report's Characterization of her " Timeline." (Id. at 47)--This is irrelevant to the nature of the court's review of the Findings as to whether there is substantial evidence supporting them.
9. Plaintiff Complains that the Report is repetitious. (Id. at 51.)
Plaintiff's stylistic differences with the Report are not sufficient to discredit it. Most of the repetition appears to be a result of the organizational structure of the Report, i.e., with an introduction and summary, the findings, and conclusions of law and recommendations.
10.The Hearing Officer Exceeded his Authority by Repeatedly Inserting Statements of Personal Opinion and Legal Conclusions into the Introduction and Findings of Fact. (Id. at 52).
Again, these stylistic criticisms are not adequate to set aside the Findings of Fact.
Plaintiff does not cite to any statements that were unreasonable or not reasonable inferences from the facts found.
11. The Hearing Officer Used the Contents of Certain Newspaper Articles in Violation of an Evidentiary Stipulation. (Id. at 55.)
The plaintiff refers to an evidentiary stipulation during the hearing pursuant to which certain newspaper articles would be admitted into evidence, not for the truth of their contents, but for their effect on decision makers in the case. However, the quotations cited in plaintiff's brief refer to statements the Advocate reporter made to the school administrators (See FOF 149, based on Superintendent Exhibit 14, December 2, 2014 Carella/Beadle email) and not to contents of the article itself. Further, the article was used not for the truth of its contents but for proof of the publicity the event was receiving. (Superintendent Exhibit 19.) Finally, the statements in the article were predominantly cumulative of other evidence in the record.
12. Former SHS Principal Anthony Pavia Should Not Have been Permitted to Testify. (Appeal Brief at 56.)
Mr. Pavia's testimony was cumulative of other evidence in the record. If the Hearing Officer was mistaken in allowing him to testify, which plaintiff has not conclusively demonstrated, any such error was harmless.
In summary, plaintiff does not succeed in discrediting the Hearing Officer's findings as to any material matter necessary or important to the Board's decision to terminate Dr. Valentine on the grounds of moral misconduct within the meaning of the holdings of Rado and Gedney . In her reply memorandum, dated January 23, 2017, the plaintiff attempts to distinguish Rado from the present case by noting that the teacher involved was arrested for a Class D felony, whereas Dr. Valentine was arrested for a Class A misdemeanor. Further, the plaintiff contends that a mere arrest is not proof of any wrongdoing. Therefore, according to plaintiff, Dr. Valentine's arrest is an insufficient basis to support termination for moral misconduct.
The court rejects these contentions. First, the Report and the Board relied not on the arrest itself but on the conduct that led to the arrest, that is, the failure to report the sexual assault. Second, Dr. Valentine's misdemeanor facilitated the commission of a serious crime, for which Ms. Watkins is now serving a ten-year sentence. The record supports the Board's decision to terminate Dr. Valentine for a profound breach of trust committed while she was the principal of Stamford High School, which constitutes moral misconduct within the meaning of § 10-151(d). See Rogers v. Board of Education, supra, 252 Conn. at 769 (termination upheld of assistant principal who did not prevent a strip search because " As an administrator, her duties included the protection of her students' health and welfare . . ."). As a result, the court concludes that the record contains strong support for the termination of Dr. Valentine for moral misconduct.
2. Other Due and Sufficient Cause
The court also finds that there was sufficient evidence in the record to support the Board's termination of plaintiff for " other due and sufficient cause. " In Rogers v. Board of Education, 252 Conn. 753, 769-70, 749 A.2d 1173 (2000), our Supreme Court explained the legal basis of this ground as follows:
The jurisdiction and discretion to determine what . . . may be [due and sufficient cause] rests in the hands of the school authorities. (Internal quotation marks omitted.) Petrino v. Board of Education, supra, 179 Conn. at 430, 426 A.2d 795. That determination must conform, of course, to the meaning of " other due and sufficient cause." General Statutes § 10-151(d). " [We have] treated that phrase as equivalent to good cause, citing with evident approval a definition of that term taken from Rinaldo v. School Committee of Revere, 294 Mass. 167, 169, 1 N.E.2d 37 (1936): Good cause includes any ground which is put forward by the [school] committee in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the committee's task of building up and maintaining an efficient school system. In Tucker [v. Board of Education, of Town of Norfolk, 177 Conn. 572, 418 A.2d 933 (1979)], we declared that the decision to terminate must be reached after a careful examination of all pertinent factors relating to the particular situation, with due consideration of the effect the teacher's conduct will have on the school authorities as well as on the students. Id., [at] 580[, 177 Conn. 572, 418 A.2d 933]. Thus, in deciding whether particular conduct constitutes due and sufficient cause for termination, the impact of that conduct upon the operation of the school is a significant consideration. (Internal quotation marks omitted.) Rado v. Board of Education, supra, 216 Conn. at 554, 583 A.2d 102.
As cited above, the Board explained its finding of due and sufficient cause, in pertinent part, as follows: " Dr. Valentine knew or should have known that her consistent failure over the course of months to not [sic] intervene and not report the sex would produce an adverse public reaction of significant intensity and duration, and her failure to act would and did constitute a clear threat to the reputation of Stamford High School and the school system and the City of Stamford. Leaving Dr. Valentine in place would create more public outcry and the students of Stamford High School would continue to feel unsafe. Dr. Valentine has threatened teachers with retribution if they spoke out. Dr. Valentine's conduct, as described in the Findings of Fact has had a negative impact on the Stamford School System. No school can operate with so divisive and ineffective a leader."
The elements of this termination are entirely consistent with the standards reiterated and set forth in Rogers . The Findings of Fact set forth above attest to the negative impact Dr. Valentine's inaction had upon the students and the faculty, and the damage they did to the school system's stature in the community, and are supported by testimony and documents in the record. The Supreme Court's conclusion in Rogers is applicable here, " It is evident that the plaintiff's conduct implicated the well-being of the students as well as the operation of the school. The ability to protect students and enforce [statutory] policies was essential to the plaintiff's job. The board's determination that the plaintiff's failure to act under the circumstances constituted due and sufficient cause for her termination was not an abuse of its discretion." Id., 771.
B. The Written Termination Decision Conforms With the Requirements of Due Process
The plaintiff argues that the defendant's written termination decision lacks meaningful details regarding the reason for her termination and, therefore, is constitutionally insufficient. The court disagrees.
When a tenured teacher is dismissed for one of the reasons listed in § 10-151(d), the teacher " is entitled, as a matter of constitutional law, to a written statement of the decision reached, the reasons for the determination, and a fair summary of the evidence relied upon." Lee v. Board of Education, 181 Conn. 69, 79, 434 A.2d 333 (1980). " It is also true that [c]onclusory language, however, will not suffice." (Internal quotation marks omitted.) Zanavich v. Board of Education, 8 Conn.App. 508, 510, 513 A.2d 196, cert. denied, 201 Conn. 809, 515 A.2d 381 (1986). " [U]nless the board expressly adopts the findings and reasons of the panel, the fact that the panel has made findings and a recommendation does not relieve the board of stating its reasons for acting as it did and the evidence upon which it relied." Lee v. Board of Education, supra, 181 Conn. 77 n.8.
The letter of January 26, 2016 adopts the findings of fact and conclusions of law reached by Attorney Adomeit. The Termination Decision states that the defendant Board " voted to terminate [the plaintiff's] employment with the Stamford Public Schools effective January 26, 2016, for each of the four (4) specific statutory grounds described in Attorney Adomeit's report, any one of which being sufficient in the Board's determination to warrant termination of your employment. A copy of Attorney Adomeit's Findings of Fact and Recommendations is attached and is included in this written decision by reference." The letter then clearly states the statutory grounds for Dr. Valentine's termination.
As plaintiff admits, Attorney Adomeit's role as the impartial hearing officer was agreed upon by both parties. The hearing officer's findings report is ninety-five pages in length and lists the facts that he found, the basis for those findings, his conclusions based upon those facts, and then provides his recommendations to the Board regarding punishment for the plaintiff. The termination decision clearly adopts the findings report, and then continues to provide a further summary of the defendant's reasons for terminating the plaintiff's employment.
Because the board adopted the Findings of Fact in their entirety, and based its decision on those facts, the defendant has satisfied its burden of stating the reasons for termination and the evidence it relied upon, as required by Lee v. Board of Education, supra, 181 Conn. 79.
Plaintiff also argues that she was deprived of due process because the Board terminated her on the basis of poor leadership and various other factors not related to the affair between Student A and Ms. Watkins. However, because these factors are not part of the grounds upon which the court is affirming the termination, i.e., moral misconduct and other due and sufficient cause, the court does not address these concerns.
C. The Termination Decision Was Not Arbitrary, Capricious or an Abuse of Discretion
In support of her argument that the termination decision was arbitrary, capricious, and an abuse of the defendant's discretion, the plaintiff argues that other employees who acted in the same manner as she did were not terminated despite being mandated reporters as well. Thus, the defendant's decision to terminate her employment was arbitrary. However, the facts are not consistent with this position.
A " mandated reporter, " such as Dr. Valentine, who has " reasonable cause to suspect or believe" that a minor is being abused is required to make an oral report within twelve hours and a written report within forty-eight hours. See General Statutes § 17a-101a. When reading the plain language of the statute in conjunction with the findings report, the court concludes that the defendant Board did not abuse its discretion by pursuing termination proceedings against the plaintiff and less severe forms of punishment against others.
In the findings report, the hearing officer found that the plaintiff was punished more severely than some others, but deservedly so. (Findings Report, at 59-60.) To establish this conclusion, the hearing officer cites the fact that the plaintiff had greater knowledge than her peers about the situation between Student A and Watkins, and also that the plaintiff had this knowledge for a longer duration of time than any other member of the staff that was brought forward for discipline. (Findings Report, at 60.) Further, the plaintiff had knowledge of the Student A-Watkins relationship by April [or May] 2014, and did not report, instead deciding to pursue an investigation. (Findings Report, at 65.) Ultimately, the hearing officer determined, through testimony and submitted evidence, that the plaintiff was " not similarly situated" to the other individuals who received less severe punishment. (Findings Report, at 60.)
In response to the Pullman & Comley report, the Superintendent moved to punish the plaintiff as well as the other parties involved in the incident. (Findings Report, at 61-62.) In his findings report, the hearing officer found that several other staff members were disciplined for their conduct in relation to this incident: " Mrs. Nordin was told that she could resign or be terminated. She opted to resign." (Findings Report, at 60.) " Mrs. Thomas-Graves was placed on leave pending an investigation by the police department, initiated in response to Dr. Hamilton's request in light of her apparent knowledge and failure to report. The police cleared Mrs. Thomas-Graves of any wrongdoing. Although termination was considered, in light of Mrs. Thomas-Graves' long tenure with the district (22 years); her reporting of the information to Mrs. Nordin; the fact that Mrs. Thomas-Graves did not have ultimate responsibility for the building; and strong support from community members, staff, and administrators, she was not terminated. She was suspended for one month without pay, removed from her position at Stamford High School, and placed in an adult education program for one year. At the end of that year, she can be bumped into a lateral position only if a position is available." (Findings Report, at 59. " Dr. Fernandes was suspended without pay for 20 days and was denied the opportunity for a raise." (Findings Report, at 59.) " Dr. Falcone lost a month's pay and denied raises for the following year." (Findings Report, at 59.)
In her position as a school administrator, the plaintiff was a mandated reporter under § 17a-101, and was required to file both an oral and written report about her reasonable suspicions of abuse under § 17a-101b and § 17a-101c. Because the plaintiff's duty was to report her suspicions and the hearing officer found that she knew of the abuse and failed to report it, the facts in the record support the defendant's decision to terminate the plaintiff's employment. In addition, there is no evidence in the record that other parties involved in the controversy surrounding the Student A-Watkins relationship had the same or greater knowledge of the relationship than the plaintiff. The Board acted within its reasonable discretion when treating each individual involved on an individual basis. The defendant did not act arbitrarily or in abuse of its discretion when relying on the findings report and moving forward with termination of the plaintiff's employment contract.
D. Plaintiff's Procedural Due Process Rights Were Not Violated
The plaintiff argues that several procedural violations during her hearing created unfair prejudice against her. The court concludes that the plaintiff was provided all due process required by law.
1. The Superintendent's Alleged Failure to Disclose Witnesses and Provide Discovery
First, the plaintiff argues that the Superintendent failed to disclose any witnesses and failed to provide requested discovery evidence prior to the hearing. Specifically, plaintiff contends that the Superintendent did not disclose the witnesses she intended to call before the hearing officer, which prevented the plaintiff from adequately impeaching the witnesses, and that the defendant did not allow her access to her e-mail, which prevented her from recovering evidence that may have helped her present her case to the hearing officer.
" An administrative hearing does not have to match the model of a trial in court . . . It must, however, meet some modicum of orderly and fair procedure." (Citation omitted.) Zanavich v. Board of Education, supra, 8 Conn.App. 512. " All that is necessary is that the procedures be tailored, in light of the decision to be made, to the capacities and circumstances of those who are to be heard . . . to insure that they are given a meaningful opportunity to present their case." (Emphasis omitted; internal quotation marks omitted.) Pagano v. Board of Education, 4 Conn.App. 1, 6-7, 492 A.2d 197, cert. denied, 197 Conn. 809, 499 A.2d 60 (1985).
In contrast to the proceedings in this matter, Zanavich v. Board of Education, supra, 8 Conn.App. 508, details the factual circumstances of a hearing that has no modicum of orderly and fair procedure. In Zanavich, the attorney presenting the case against the plaintiff stated that he would " establish the facts as I see them, " and that the plaintiff had the burden of providing explanations excusing the reasons for termination. Id., 511. In addition, the proceedings seemed to show that the counsel for the board and the board itself, which was required to be neutral in this proceeding, had the same goal of terminating the plaintiff. Id., 512.
In the present case, both the plaintiff and superintendent of the school district had the opportunity to submit evidence supporting their respective positions. Additionally, the plaintiff submitted several objections to the hearing officer before the proceedings began. (Plaintiff's Brief, Ex. 3.) Because the plaintiff, through her counsel, was able to submit objections to exhibits brought by the defendant and to cross examine witnesses, as well as to present her case to avoid termination, the plaintiff was able to exercise her procedural due process rights.
After reviewing the record, the court finds no support for the plaintiff's contention that the Superintendent's failure to disclose witnesses violated her due process rights. The plaintiff cites no authority that entitles her to be given a full list of witnesses that the Superintendent planned to call to present her case. In fact, the plaintiff states in her brief that " most teacher termination cases would not warrant this level of procedure." (Plaintiff's Brief, at 63.) Further, the Pullman & Comley report placed the plaintiff on notice of all parties who could have reasonably been considered witnesses and important to the presentation of the Superintendent's case. Finally, the plaintiff does not indicate which, if any, of the witnesses she was not able to adequately cross examine or whose presence at the hearing was a surprise. Therefore, the plaintiff's due process argument on this ground is rejected.
After reviewing the record, there is also no support for the plaintiff's contention that the Superintendent's failure to provide requested discovery evidence violated her due process rights. The plaintiff claims that the lack of access to her e-mails " hurt her ability to adequately prepare a defense given that her emails likely contained a significant amount of relevant information." (Plaintiff's Brief, at 64.) The plaintiff has identified nothing specific in her e-mail that would have aided her case, and has not provided any reason that the lack of access to her e-mail prevented her from presenting her case and objecting to materials provided by the Superintendent at the hearing. Even if her e-mail contained relevant materials, as mentioned above, the plaintiff had a fair opportunity to cross examine witnesses and object to evidence presented to the hearing officer.
2. Weight of Joshua Brown's Testimony
Second, the plaintiff argues that Joshua Brown, a guidance counsel at the shelter where Student A was living, should not have been able to testify because his testimony before the hearing officer was materially divergent from his past sworn testimony. Here, the hearing officer determined the credibility of the witnesses and the plaintiff during those proceedings, and his determination should stand. " In determining whether an administrative finding is supported by substantial evidence, the reviewing court must defer to the agency's assessment of the credibility of witnesses." (Internal quotation marks omitted.) Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 200, 596 A.2d 396 (1991) (decision made by Superior Court to determine whether hearing officer should have admitted evidence of proposed conciliation agreement by evaluating credibility of investigator's testimony improperly substituted court's discretion for that of hearing officer). " [A] school board has discretion to accept or reject a recommendation from an impartial hearing panel; though it is bound by the panel's findings of fact unless unsupported by the evidence." (Internal quotation marks omitted.) Tomlinson v. Board of Education, supra, 226 Conn. 714. " The credibility of witnesses and the determination of issues of fact are matters within its province." (Internal quotation marks omitted.) Id., 713.
In the present case, the plaintiff had ample opportunity to present her case to the hearing officer, an independent fact finder. Throughout the Findings Report, the hearing officer explains why he found each witness more credible than the plaintiff when discussing events, dates, and interactions. After reviewing the record, there is no indication that the plaintiff was denied her right to present her case, object to evidence or testimony, or that the hearing officer did not require the Superintendent to satisfy her burden of proof as to the merits of the termination by a preponderance of the evidence. The hearing officer then drew his own conclusions based upon the facts as he found them. Therefore, the court rejects this argument of procedural due process violations based on the credibility determinations made by the hearing officer.
3. The Hearing Officer's Correction of his Findings Report
On or about January 11, 2016, the hearing officer issued his findings of fact and recommendations, which recommended terminating the plaintiff's employment. On or about January 19, 2016, an attorney for the defendant sent a letter to the hearing officer requesting fourteen corrections to the findings of fact and recommendations, after which the hearing officer made the requested corrections and reissued his ninety-five page findings of fact and recommendations. The original version of the hearing officer's findings report was not provided to the members of the Board; only the corrected version of the findings report was provided.
The plaintiff now argues that the hearing officer should not have had the opportunity to correct his findings report before it was provided to the defendant. It is important to note that the plaintiff was provided with the draft and was fully apprised of the process. The defendant argues that the plaintiff waived her right to bring an objection regarding the hearing officer correcting his findings report because she failed to raise the issue with the hearing officer. The defendant also argues that the plaintiff waived her ability to object to corrections before they were submitted to the defendant. " Under § 10-151(d), the responsibility for making factual findings is vested in the impartial hearing officer." Tomlinson v. Board of Education, supra, 226 Conn. 731. In Tomlinson, the court explained that the trial court was unable to address a particular challenge urged by the plaintiff because the issue was never raised before the hearing officer, and to properly evaluate that argument, the court would be required to find facts. Id., 730-31. In the present case, this court cannot find any objection made to the hearing officer in the record concerning whether he should be allowed to correct his findings report before submitting it to the Board for its decision. The plaintiff submits an e-mail with her brief, addressed to opposing counsel, which objected to the hearing officer correcting his findings report. (Plaintiff's Brief, Ex. 1.) As this e-mail is not contained within the record, and was not addressed to the hearing officer, this court will not address the plaintiff's assertion that the hearing officer should not have revised his findings report because it was not properly raised below and cannot be raised for the first time on appeal. Thus, the plaintiff's due process argument on this ground is rejected.
E. Double Jeopardy Does Not Apply
Finally, Dr. Valentine argues that she was punished twice for the same incident because she was first suspended or transferred with full pay and benefits from her position as principal at Stamford High School and later terminated. The court finds that the doctrine of double jeopardy does not apply in this case.
General Statutes § 10-151(d) provides in relevant part: " Nothing herein contained shall deprive a board of education or superintendent of the power to suspend a teacher from duty immediately when serious misconduct is charged without prejudice to the rights of the teacher as otherwise provided in this section." The plaintiff relies on the case Norwalk Police Union v. Norwalk, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-12-6014657-S (December 31, 2014, Tierney, J.T.R.) [59 Conn.L.Rptr. 651, ] to show that the protection against double jeopardy applies when an employee is subsequently fired after being punished for the same incident. In Norwalk Police Union, the plaintiff police officer was first demoted and reassigned and then terminated for the same incident. Id.
The court finds this argument unpersuasive. First, the case cited by plaintiff was recently reversed, see, Norwalk Police Union v. Norwalk, 324 Conn. 618, 153 A.3d 1280 (2017). Second, that case involved rights under a police collective bargaining agreement and not the teachers' agreement applicable here. In the present case, the plaintiff was suspended or, formally, transferred " out of the school to a place to be determined pending the outcome of the independent investigation." (Findings Report, at 53.) When the independent investigation concluded, it revealed that the plaintiff knew about the sexual relationship involving Student A and Watkins by May 2014, at the latest. (Findings Report, at 58-59.) When this new information was discovered, the Superintendent initiated the proceedings to terminate the plaintiff instead of completing her transfer to another position. (Findings Report, at 59.) The hearing officer concluded that this procedure was reasonable, and the Board relied on his conclusions and recommendation. (Findings Report, at 59; Plaintiff's Complaint, Ex. 3, at 1.) The hearing officer determined that the " transfer out of Stamford High School was not disciplinary, was sanctioned by the labor contract, and determined in the grievance process to have not been disciplinary." (Findings Report, at 54.) Thus, the plaintiff did not receive a punishment at the time of her transfer as she was not demoted nor were her salary or benefits reduced. Instead, in accordance with the plain language of § 10-151(d), the plaintiff was suspended or transferred pending the investigation, and, after the investigation was complete and the hearings had concluded, was terminated. Therefore, the defendant did not abuse its discretion when deciding to terminate the plaintiff after her previous suspension or transfer.
The hearing officer explains that Article 8 of the collective bargaining agreement between the teacher's union and the school district allowed the Superintendent to involuntarily transfer the plaintiff from Stamford High School. (Findings Report, at 53.) The plaintiff opposed this action and instituted an unsuccessful union grievance procedure. (Findings Report, at 53.) The hearing officer explained that the defendant board found that " [the plaintiff] presented no evidence that she has been disciplined and [the plaintiff] remains on leave without prejudice and at full pay." (Findings Report, at 53.) The union declined to pursue arbitration on the defendant board's decision, and thus, the hearing officer determined that the plaintiff could not relitigate the issue of whether the transfer was disciplinary in nature. (Findings Report, at 53-54.)
The plaintiff has submitted no other cases, and the court has found no authority, supporting the proposition that double jeopardy can be or has been applied in the circumstance of an employer suspending or transferring with full pay an employee pending the outcome of an investigation and then subsequently firing her. Therefore, the plaintiff's double jeopardy argument is rejected.
Conclusion
For the reasons set forth above, the decision of the Stamford Board of Education to terminate Dr. Valentine is affirmed, and this appeal is dismissed.