Educator Misconduct

1. Educator Misconduct Deborah Glasbrener Marriott NYSASPA The Otesaga Hotel Cooperstown, NY October 21, 2014

2. Agenda • Overview of Educator Discipline Process • Selected Part 83 Cases • Selected Education Law and SAPA Provisions • Teacher Tenure Proceedings

3. Educator Discipline (8 NYCRR Part 83) • Teachers and applicants for certification must possess “good moral character” • The Commissioner investigates allegations that raise a “reasonable question as to an individual’s moral character”

4. Sources of ComplaintsMandatory Reporting Chief School Officer Duties • Superintendents must report to the Commissioner any information that a certified individual has been convicted of a crime or has committed an act which raises a reasonable question as to the individual’s moral character • Superintendents must file with the Commissioner a copy of the “Child Abuse in an Education Setting” report where the subject is a certificate holder

5. Sources of ComplaintsMandatory Reporting Duties of Other Individuals • District Attorneys must report information that a certified individual has been convicted of a sex offense or a school administrator has been convicted of defrauding the government • Employees of school districts, charter schools and BOCES must report and known incident of testing misconduct by a certified individual, or known misconduct by a non-certified individual that may violate Education Law §225 NEW

6. Sources of ComplaintsApplicant Self reports Certificate Application Questions • Have you ever been dismissed from, resigned from, entered into a settlement agreement, or otherwise left employment to avoid investigation and/or dismissal for alleged misconduct? • Are you the subject of any pending investigation and/or disciplinary charge(s) pertaining to employment? • Have you ever been found guilty after trial, or pleaded guilty, no contest, nolo contendere, or had adjudication withheld to a crime (felony or misdemeanor) in any court? • Do you currently have any criminal charge(s) pending against you? • Have you ever had an application for a teaching, professional or vocational credential (i.e., license, certificate or registration) in New York or any other jurisdiction denied? • Have you ever surrendered a teaching, professional, or vocational credential (i.e., license, certificate or registration) or had such credential revoked, suspended, invalidated or otherwise subjected to a disciplinary penalty in any jurisdiction? • Are you the subject of any pending investigation and/or disciplinary charge(s) for professional misconduct in any jurisdiction?

7. Sources of ComplaintsNon-Mandatory Reporting

8. Substantial Question of Moral Character • Commissioner action only when there is a “substantial question of moral character” • Not Defined in the Education Law or Commissioner’s Regulations

9. What is Good Moral Character? • The test is not the personal moral principles of the person making the judgment about someone else’s conduct • The conduct is to be judged based upon the current ethical standards viewed through the lens of an ordinary man or woman (In the Matter of Michael Drexler, Part 83 Proceeding Decision October 3, 2005 citing Posusta v. United States, 2 CAR., 285 F2d 533, 534-535).

10. These proceedings can be pending at the same time Part 83 ~~ 3020-a ~~ Criminal • Part 83 • Education Department • Certification Proceeding • Preponderance of the evidence • Hearing Officer (with panel upon request) • No statute of limitations • Revocation of certificate or denial of application • 3020-a • School District • Employment Proceeding • Preponderance of the evidence • AAA arbitrator (with panel upon request) • 3-year limitations, except for criminal conduct • Termination • Criminal • Local Prosecutor • Criminal Proceeding • Beyond a reasonable doubt • Judge (with jury upon request) • Generally 5 years for felonies and 3 years for misdemeanors • Loss of liberty (prison/jail)

11. What conduct raises a Substantial Question of Moral Character? • Inappropriate conduct with students • Conviction of serious crimes • Misappropriation of school funds (field trip money, club money, etc.) • Viewing pornography on school computers • Intimidation, bullying, verbal abuse and assault • Substance abuse issues (nexus to school) • Falsification of teaching credentials • Test fraud on statewide exams

12. Educators = Role Models • Educator Hold Positions of Trust • Community, parents, students, and other educators “trust” the educator to act in the best interest of the children they are in charge of • Imbalance of Power • Adult has the ability to control the interaction with the child • Adult has the power to give privileges and impose consequences • Child must accede, or risk losing privileges or face consequences

13. GOOD MORAL CHARACTER • In the Matter of Drexler, a 25 year old waterfront supervisor had sex with a 16 year old junior lifeguard over the course of two summers. The 16 yo made a statement to police, but refused to testify in criminal court. Drexler admitted the conduct in a phone call with mom. Drexler’s certificate was revoked. • “The responsibilities of a teacher do not end at the end of a class day…it is not the adolescent’s desires and actions that must control the teacher, but the teacher’s good sense and “good moral character” that permit a proper interaction and relationship between the individuals.”

14. What is grooming? • strategies used to gain trust and/or admiration of students, parents and others • show interest, build confidence and respect *** Skills needed to become an outstanding educator are also the skills that enable the educator to betray the trust and harm children ***

15. GROOMING Continued • First NYS Court Decision recognizing educator grooming as a basis for discipline - In the Matter of Randy Mudge (Appellate Division, 3rd Dept., December 16, 2010) • Mudge was the baseball coach • Had high school girls be the “statisticians” • Just prior to or shortly after graduation, Mudge took two different girls (one in “89 and one in “92) to a Mets game, served them wine coolers and had sex with them in a secluded area on the way home • Neither the Commissioner Decision, nor the Appellate Division decision found that sexual contact occurred before graduation • The Appellate Division affirmed the Commissioner's Decision which stated that “…spigot of trust does not shut off the day following graduation….” and upheld the 1 year suspension of his certificates

16. MORE GROOMING • In the Matter of James Murray • Engaged in a multi-year relationship with student • Student would not cooperate with SED • SED used circumstantial evidence to make the case • Student’s friends testified about an email between the student and the teacher that they had discovered • Wife confided in her friends about her suspicion that Murray was in a relationship with the student • Student’s mother testified for the teacher • Murray’s certificates were revoked

17. INAPPROPRIATE CONDUCT With STUDENTS • Developing “special” relationships, giving student extra privileges • Sharing personal information and giving advice on non-school related issues (marriage, boyfriends, sex, mental health, suicide, etc.) • Engaging in private communications on non-school related issues (via text, cell phone, social media, greeting cards, letters, emails, IM’s) • Giving and receiving gifts • Contact off school grounds for non-school related events (movies, dinner, shopping) • Transporting students in a private vehicle (clandestine v. open and notorious) • Treating student as a “peer” rather than maintaining student-teacher boundaries • Developing relationship with parents to enable greater access to student • Secrecy of relationship (encouraging lies) • Failure to refer student to resources within school for serious issues

18. FAILURE TO REPORT • In the Matter of Karli Murray (Commissioner Decision, December 29, 2011) • Stood by her man • Was the cheerleading coach • Suspected her husband (then fiancé) was having a sexual relationship with a student • Was shown an email from the husband to the student by friends of the student • Berated the cheerleading squad for spreading rumors about her husband and the student (the student and her friends were all members of the cheerleading squad). • Did not report the email from her husband to the student to school administrators • She breached her duty to be a role model and ignored her obligation to report such information to school officials • 2 year suspension of her certificates

19. PORNOGRAPHY ON SCHOOL COMPUTERS • In the Matter of Stephney (Commissioner Decision, August 23, 2007) • Stephney was a 2nd grade teacher • On 6 separate dates, he sought out and accessed adult pornography on his classroom computer • Caught when confronted by the IT Coordinator • Admitted that he didn’t do it at his house because he did not want to risk his children viewing the images • Commissioner revoked • In the Matter of Henery (Commissioner Decision, August 31, 2007) • Henery was an administrator • Sent sexually explicit joke containing a nude female to a subordinate • Visited school to try to erase information from school server • Extensive porn on his school computer • Commissioner imposed a 5 year suspension

20. LEWDNESS • In the Matter of Wayne Wiggs (Commissioner Decision, February 27, 2013) • Wiggs, a BOCES administrator was found guilty of Public Lewdness (B Misdemeanor) after a trial. • Conduct occurred in a public park during the day • “teachers are obligated to serve as behavioral examples for impressionable youngsters. Criminal convictions erode an individual’s ability to guide students toward respect for the law, an essential component of an orderly democratic society.” • Poor judgment and lack of impulse control • Commissioner revoked

21. MORALLY REPREHENSIBLE BEHAVIOR • Adult Sex on School Grounds • In the Matter of Hafer (HO Decision August 27, 2012) • Sex on a regular basis during school day in the classroom • Witnessed by the custodians • 2 year revocation • In the Matter of Redmond (Commissioner Decision July 25, 2013) • Administrator having sex with subordinate • Sex over a period of several years with secretary • Used the school email to send sexually graphic emails to • Emails discussed having sex in daughter’s bed • Commissioner revoked

22. MORALLY REPREHENSIBLE BEHAVIOR • In the Matter of ECR (Pending) • Gang raped a 17 yo girl • Sexually abused a family friend • Sexually assaulted a girl in Florida • Hearing Officer recommended revocation ….waiting on Commissioner Decision • Partners in Crime • Sexual relationship with 17 yo female student • Made a sex tape • After relationship went south and while the Part 83 proceeding was pending, teacher's friend (another teacher) demanded the return of the sex tape at the victims place of employment • Both teachers surrendered

23. MORALLY REPREHENSIBLE BEHAVIOR • In the Matter of Moro (Appellate Division, 3rd Dept, February 25, 2010) • Blindfolded 8th grade music student for a lesson • Masturbated during lesson • Student witnesses behavior when the blindfold slipped • Criminal charges for Endangering the Welfare of a Child were dismissed • SED pursued same conduct • Certs revoked after a hearing, and two appeals • No inherent HO bias based upon female misperception of the operation of the manual sexual anatomy

24. LACK OF CARE • In the Matter of Shannahan (3020-a Decision, August 9, 2003) • Failure to exercise due care • Brought an intoxicated 16 yo female to the wrong house at 3:00 in the morning wearing nothing but a potting soil bag. • Criminal charges dismissed • Found guilty of negligence and conduct unbecoming a teacher. She was order to pay a $5,000 fine. • SED settled for a 1 year suspension • In the Matter of Klinger (HO Decision, March 8, 2002) • Brother raped a stranger • Helped brother provide transportation home • Dropped scantily clad bleeding victim off in the middle of a street in winter with no coat or shoes • Convicted of Reckless Endangerment • Certs revoked

25. COMPUTER FRAUD • Matter of D’Amato (Commissioner Decision March 7, 2008) • Original internet spammer • Created fake internet persona (alter-ego) to satisfy his tickling fetish • Was a high school administrator • Got cooperation from a few HS students in another community • When students grew tired of situation, D’Amato email “bombed” their accounts and threatened to expose them, • Convicted of Computer fraud and Abuse

26. TESTING MISCONDUCT ON REGENTS • In the Matter of Jeudy (Commissioner Decision, May 26, 2006) • Removed an answer key the night before a Regents exam and gave the key to his son. • Pled guilty to official misconduct • In the Matter of Musto (Commissioner Decision, March 6, 2006) • Admitted changing student answers on exams • Believed he was helping students • Certs revoked

27. DISCIPLINE ADVERSE OUTCOMES(Current through 10/21/2014)

28. Education Law §215 • §215. Visitation and reports. The regents, or the commissioner of education, or their representatives, may visit, examine into and inspect, any institution in the university and any school or institution under the educational supervision of the state, and may require, as often as desired, duly verified reports therefrom giving such information and in such form as the regents or the commissioner of education shall prescribe.

29. Selected SAPA Provisions – Stay of Expiration of License • SAPA §401(2) provides: when a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license does not expire until the application has been finally determined by the agency • Application must be: • Timely – filed prior to expiration of previous certification • Sufficient – meets all of the requirements • Continuing – must be in the same certification area (certification progression or time extension)

30. Teacher Tenure Hearings • Tenured educators have the right to retain their positions and may only be terminated if there is “just cause” pursuant to Education Law §3020.  The rules specifying the process for terminating a tenured educator are set forth in Education Law §3020-a.  This process was significantly modified effective April 1, 2012, by Chapter 57 of the Laws of 2012.* * Education Law §3020(3) permits the NYCDOE to modify the provisions of Education Law §3020-a through the collective bargaining process. As a result many of the timeframes set forth in the statute do not apply to NYCDOE.

31. 3020-a Reform Legislation • April 1, 2012 • Two goals • Reduce Length of Time for Cases • Reduce Costs

32. §3020-aTimelines a/k/a Fuzzy Math Request Hearing 10 Days Pre-Hearing Conference 65 Days Final Hearing Date 125 Days Serve Charges 1st Day Select Arbitrator 45 Days Issue Decision 155 Days Statute Reality Days Elapsed 109 Days Select Arbitrator 279 Days Pre-Hearing Conference 1st Day Serve Charges 529 Days Final Hearing Date 653 Days Issue Decision 10 Days Request Hearing Reality = Current Statewide Average (2011)

33. Hearing Officer Selection: 15th day (from list creation) Evidence: 125th day (from Board vote) Decision: 30 days (from last hearing date) Reduce TimeSignificant Changes

34. 15 Day Rule Hearing Officer Selection • Parties must choose the hearing officer within 15 days from the date the list is created • TEACH facilitates this by making the list instantly available. • Each party must make the same selection within 15 days. • If selections do not match by the 15th day, the Commissioner chooses • First Criteria: least expensive Hearing Officer • Second Criteria: if two Hearing Officers share the same rate, then the choice is the one that is geographically closest

35. 125 Day RuleProhibition on Evidence • A significant change is the prohibition on the introduction of evidence more than 125 days after the filing of charges unless there are extraordinary circumstances beyond control of the parties

36. 30 Day RuleIssuance of Decision • The Hearing Officer must issue a decision within 30 days of the last day of the hearing • Failure to comply with the timelines may be grounds for removal from the list of hearing officers • The 30 day time period is not extended for the submission of post hearing briefs • Reminder: post hearing briefs are not evidence and are therefore unaffected by 125 day rule

37. Reduce CostsSignificant Changes • Establish maximum rates of compensation for arbitrators • Commissioner set maximum rates in a field memo • Issued billing guidelines for travel and other expenses • Pay new claims first

38. Goal of TEACH Modifications • Assist in managing new requirements • Business process reconfigured • Eliminate delays caused by manual process • Design paperless system • Keep track of tight timelines • Accommodate need for reports on success of changes

39. How Do TEACH Changes Help? • Multiple users • Automated emails to trigger the next step in the process • All parties can upload relevant documents (charges, transcripts, decisions) • Greatly reduces manual SED processes • Eliminates paper files • Online voucher creation • Online voucher auditing • Future – can accommodate transcript changes

40. Tenure Cases Statewide Summary

41. Case Outcomes*(Based on FY Case Commenced)(As of April 30, 2014)

42. Average Days to Decision By Type

43. Average Days to Other Outcomes

44. ~Questions~