Opinion
C.A. PC-2017-4294
07-30-2019
DEBORAH SALVATORE, Plaintiff, v. RHODE ISLAND COUNCIL ON ELEMENTARY AND SECONDARY EDUCATION and SOUTH KINGSTOWN SCHOOL COMMITTEE, Defendants.
For Plaintiff: John E. DeCubellis, Jr., Esq. For Defendant: Paul V. Sullivan, Esq.; Sara Rapport, Esq.
For Plaintiff: John E. DeCubellis, Jr., Esq.
For Defendant: Paul V. Sullivan, Esq.; Sara Rapport, Esq.
DECISION
TAFT-CARTER, J.
Before this Court is Deborah Salvatore's (Petitioner or Ms. Salvatore) appeal from a decision of the Rhode Island Council on Elementary and Secondary Education (Council), affirming the decision of the South Kingstown School Committee (Committee) to terminate Petitioner's employment as a tenured teacher. The Council found that under the teacher tenure provision of G.L. 1956 § 16-13-3, the Committee had "good and just cause" to terminate Petitioner's employment and that her termination should be effective for the 2014-2015 school year. Jurisdiction is pursuant to G.L. 1956 § 42-35-15. For the reasons set forth below, this Court affirms the Council's decision in part and reverses in part.
I
Facts and Travel
The start of the 2013-2014 school year marked Ms. Salvatore's twenty-fifth year as a special educator in the South Kingstown school district. Tr. at 1975:11-13, June 3, 2015 (Vol. 13). At that time, Ms. Salvatore worked at Curtis Corner Middle School (Curtis Corner) as a resource teacher, a collaborative teacher in the regular education classroom, and a case manager for approximately thirteen special education students on Team Defender. Id. at 2018:3-11. In this capacity, Ms. Salvatore's responsibilities included drafting individualized education plans (IEPs) for the students on her caseload, scheduling and facilitating IEP meetings with students' parents, and communicating with the other team teachers regarding the students on her caseload. Id. at 2018:18-23; 2023:12-15. However, Ms. Salvatore's "primary responsibility" as a special educator was to "be the advocate for the students[s]" on her caseload. Id. at 2022:23-2023:4. As an advocate for the students on her caseload, one of Ms. Salvatore's responsibilities included ensuring that IEP supports were being implemented. Id. at 2023:12-15.
At Curtis Corner, the seventh and eighth grades are divided into "teams" with each grade having approximately three teams. Vol. 1 Tr. at 56:13-18; 57:5-11. Each team consists of four "core content" teachers (English Language Arts, Math, Science, and Social Studies) and one special education teacher. Id. at 56:19-23.
Under federal law, school districts are required to create and implement IEPs for students with disabilities. 20 U.S.C. § 1414(d)(2)(A). An IEP "means a written statement for each child with a disability" that addresses the child's specific challenges, sets forth progress goals, and delineates specific supports and services to be used to achieve those goals. 20 U.S.C. § 1414(d)(1). This definition is incorporated by reference into the Regulations of the Council on Elementary and Secondary Education Governing the Education of Children with Disabilities 200-RICR-20-30-6.3 (Special Education Regulations).
During the 2013-2014 school year, Ms. Salvatore acted as the case manager for twelve students, including Doe I, Doe II, Doe III, and Doe IV. As the school year progressed, so did parent complaints regarding Ms. Salvatore's case management of Does I, II, III, and IV. Tr. at 125:15-17, Jan. 21, 2015 (Vol. 1); Tr. at 806:4-807:22, Apr. 14, 2015 (Vol. 5). These complaints included Ms. Salvatore's lack of communication with her students' parents; that the supplementary aids and services Does I, II, III, and IV required by law were not being implemented with fidelity; that Does I and II were failing their classes; that Ms. Salvatore breached federal and state law by accessing Doe III's academic records at a time when she had no legitimate educational interest in Doe III; and that Ms. Salvatore breached Doe IV's confidentiality by discussing his discipline in front of other students. The complaints levied against Ms. Salvatore will be discussed in further detail infra. In addition to numerous verbal and written parent complaints, Ms. Salvatore also received poor scores on her mid-year evaluation conducted by Assistant Director of Pupil Personnel Services Christine Levy (Ms. Levy). Tr. at 265:3-8; 396:3-14; 398:5-401:22, Jan. 22, 2015 (Vol. 2).
On April 17, 2014, the Superintendent of South Kingstown public schools, Dr. Kristen Stringfellow (Dr. Stringfellow or the Superintendent), issued a letter to Ms. Salvatore recommending that the Committee terminate her employment. The Committee subsequently voted to terminate Ms. Salvatore's employment and notified Ms. Salvatore of such on May 14, 2014. The Committee based its decision to terminate Ms. Salvatore's employment upon the following:
1) Over the course of the 2013-2014 school year, Ms. Levy was required to monitor Ms. Salvatore's job performance with respect to multiple students due to numerous parent complaints. Despite ongoing supervision, Ms. Salvatore's pattern of inappropriate conduct and poor teaching practice persisted.
2) As of the mid-point of the 2013-2014 school year, Ms. Salvatore's mid-year evaluation revealed multiple deficits.
3) In March 2014, Ms. Salvatore removed Doe IV from the classroom in violation of his behavior plan, which deprived the student of receiving instructional services and demonstrated Ms. Salvatore's failure to manage the student's behavior.
4) Following this incident, Ms. Salvatore discussed Doe IV's disciplinary issues in front of other students, including Doe IV.
5) On April 7, 2014, Ms. Salvatore inappropriately accessed the educational records of a student no longer on her caseload (Doe III) by demanding those records from a co-worker.
6) On April 9, 2014, Ms. Salvatore failed to comply with Principal Patricia Aull's (Ms. Aull) directive to return Doe III's records and falsely represented to Ms. Aull that she returned all the records.
7) On April 10, 2014, Ms. Salvatore attempted to access Doe III's educational records at the Pupil Personnel Services office at a time when she had no legitimate educational interest in Doe III and, therefore, no right to obtain those records.
8) In approximately Spring 2014, Ms. Salvatore discussed Doe IV's disability with other students despite explicit instructions from Doe IV's parent not to disclose this information due to the significant stress and anxiety it would cause Doe IV. This disclosure created a potential volatile and unsafe situation for Doe IV.
9) On various dates between September 23, 2013 and April 9, 2014, Ms. Salvatore accessed and printed multiple copies of educational records of four students in which she had no legitimate educational interest in violation of School Committee policy and state and federal law. Committee's Decision at 2-4.
The Commissioner, in affirming the decision of the Committee, declined to find that Ms. Salvatore disclosed Doe IV's disability. Commissioner's Decision at 8 n.14. The Commissioner noted the credible testimony of a student in the room at the time of the alleged disclosure who testified that Ms. Salvatore made that statement. Id. However, the Commissioner found it "extremely difficult to believe that such a disclosure would be made by any member of the teaching team" given how this issue had been discussed at length. Id. Therefore, the Commissioner declined to find that Ms. Salvatore made this disclosure without corroboration of the student's testimony. Id.
On Ms. Salvatore's appeal to the Commissioner, the Committee withdrew this claim with respect to two of the four students. See Commissioner's Decision at 9 n.18.
On May 20, 2014, Ms. Salvatore appealed the Committee's decision to terminate her employment; the Committee subsequently denied Ms. Salvatore's appeal and affirmed Ms. Salvatore's termination after a post-termination hearing held on August 18, 2014. Thereafter, on September 19, 2014, Ms. Salvatore appealed her termination to the Commissioner of Education (the Commissioner).
The Commissioner held eighteen days of hearings, which included testimony from nineteen witnesses and the introduction of one hundred and eighty-seven exhibits. On December 14, 2016, the Commissioner issued a decision (Commissioner's Decision), affirming Ms. Salvatore's termination, finding that good and just cause existed to terminate Ms. Salvatore's employment. Commissioner's Decision at 21-22. In doing so, the Commissioner made detailed findings of fact, including, inter alia:
1) Ms. Salvatore failed to "adequately perform her duties as case manager with respect to three students on her caseload, Student Doe I, Student Doe II and Student Doe III. With respect to all three students, Ms. Salvatore did not function as their advocate or 'primary advocate' as required by the job description of case manager."
2) Ms. Salvatore failed to communicate effectively with Doe I and Doe II's parents and general education teachers regarding the students' IEP implementation. Moreover, Ms. Salvatore did not take steps to ensure the students were receiving the supplementary aids and accommodations needed for them to access the general education curriculum.
3) With respect to Doe I, Ms. Salvatore failed to "follow up to ensure that Doe [I]'s planner was being signed consistently and that he would receive a 'check in/check out' procedure each school day, which had proven to be successful the previous school year."
4) With respect to Doe II, Ms. Salvatore failed to ensure that Doe II's planner was being signed, that Doe II received copies of teachers' notes, and that Doe II had access to a computer for writing assignments.
5) With respect to Doe III, Ms. Salvatore failed to correct a scheduling error that placed the student in her resource class when he was not supposed to be there. Ms. Salvatore also failed to reconvene Doe III's IEP team when Doe III "was removed from class 'almost daily' for disciplinary referrals and, as a result, received few educational services until his placement on a different team with a different case manager[.]"
6) The parents of Doe I and Doe II registered verbal and written complaints with respect to Ms. Salvatore's job performance to the Director and Assistant Director of Pupil Personnel Services. These complaints were brought to Ms. Salvatore's attention.
7) Ms. Levy "was required to monitor Ms. Salvatore's job performance with respect to Doe I, Doe II and Doe III and fulfill the role of case manager for these students on several occasions."
8) Ms. Salvatore's mid-year evaluation revealed multiple deficits and her performance in a number of areas evaluating her professional responsibilities was assigned the lowest score possible. Ms. Salvatore received an electronic copy of the evaluation and met with Ms. Levy and Ms. Eagan to discuss the evaluation, but Ms. Salvatore "had little comment in response to the issues noted in her evaluation and provided no written response."
9) With respect to Doe IV, on March 25, 2014, Ms. Salvatore acted in direct contravention of Doe IV's IEP when she removed Doe IV from the collaborative English Language Arts classroom after Doe IV "yelled 'shut the f--- up' in response to students collectively wishing him a happy birthday." Doe IV's disability caused him "to exhibit 'aberrant' or 'unexpected' behavior, including verbal outbursts, verbal disruptive noises, and swearing." Therefore, Doe IV's behavior intervention plan required that the inappropriate behavior be processed with the student within or outside the classroom and, after this step, Doe IV would reenter the classroom. The purpose of this plan was to allow Doe IV to "develop appropriate classroom behavior and increase the period of time he attended class in a collaborative setting before going to a specialized 'ALP' classroom." Instead of processing this behavior with Doe IV, Ms. Salvatore sent Doe IV out of the classroom to the ALP classroom, thereby violating Doe IV's IEP and Behavior Management Plan.
10) Upon entering the ALP classroom on March 25, 2014, following the preceding incident, Ms. Salvatore "with a discipline slip in her hand, discussed issues related to the student's discipline in front of other students, including [Doe IV]." Doe IV heard Ms. Salvatore remark that she "couldn't write him up" because, if she did, "she would be in trouble." Doe IV reported this incident to his mother that same day and Doe IV's mother sent an e-mail to Ms. Levy regarding this incident. The matter was brought to Ms. Salvatore's attention, but Ms. Salvatore stated at the mid-year conference that she did not want to discuss the matter.
11) On April 7, 2014, Ms. Salvatore inappropriately accessed the educational records of Doe III, who was no longer on her caseload, by "demanding certain IEP records from a co-worker."
12) On April 9, 2014, Ms. Aull directed Ms. Salvatore to return the records she obtained from Doe III's new case manager. However, Ms. Salvatore "failed to return all the records and falsely represented to the principal that she had complied with her directive."
13) On April 10, 2014, Ms. Salvatore attempted to access Doe III's educational records at the Pupil Personnel Services office. At the time Ms. Salvatore did so, "she had no legitimate educational interest in the student."
14) On various dates in April 2014, Ms. Salvatore "used TIEnet to access, review and print special education records of Student Doe III and another student" at a time when "she had no legitimate education interest in either of these students." Id. at 4-9.
The Commissioner also determined that despite being terminated after March 1, 2014, Ms. Salvatore's termination was effective for the 2014-2015 school year. Id. at 21-22. The Commissioner reasoned that a "district terminating even a tenured teacher may do so immediately when the precipitating cause arises after the statutory deadline" because to retain or at least continue to pay the terminated teacher for another full school year "merely creates an artificial waiting period serving no other purpose than to siphon funds that could be used for educational programs." Id. at 21. Ms. Salvatore filed an appeal of the Commissioner's Decision to the Council on June 20, 2017.
On August 15, 2017, the Council affirmed the Commissioner's Decision and sustained Ms. Salvatore's termination. See Council's Decision at 5. The Council determined that the record supported the Commissioner's finding of good and just cause regarding Ms. Salvatore's failure to perform her duties as case manager and failure to act as her students' primary advocate. Id. at 2. In its decision, the Council felt "compelled" to note that it found Ms. Salvatore's actions of illegally accessing confidential student records "egregious and extremely troubling." Id. at 3. The Council also affirmed the Commissioner's decision that Ms. Salvatore's termination was effective as of May 12, 2014. Id. at 4. Reading § 16-13-3 in pari materia with § 16-12-6, the Council found the March 1 deadline provision of § 16-13-3 inapplicable when a teacher engages in "serious misconduct." Id. at 4-5. To hold otherwise, the Council found, serves no "educational purpose" and produces an absurd and arbitrary result. Id.
On September 11, 2017, Ms. Salvatore timely appealed the Council's decision to this Court. See Compl. Ms. Salvatore contends that the Council erroneously found that the record contained sufficient evidence supporting the Commissioner's finding that the Committee had good and just cause to terminate Ms. Salvatore's employment. In addition, Ms. Salvatore asserts that the Council erroneously determined that the March 1 notice requirement of § 16-13-3 did not apply to Ms. Salvatore's termination.
II
Standard of Review
The Legislature has "created an express procedural route of review to be followed by '[a]ny person aggrieved by any decision or doings of any school committee . . . ." Ciccone v. Cranston School Committee, 513 A.2d 32, 36 (R.I. 1986) (quoting § 16-39-2) (bracket in original). Accordingly, decisions concerning disputes arising under education law are subject to a two-tier administrative review process. See §§ 16-39-1 and 16-39-3. At the first tier, the Commissioner conducts a hearing and renders a decision based upon the testimony and documentary evidence presented at the hearing. Sec. 16-39-1. At the second tier, the Council reviews the Commissioner's decision to determine if it "was patently 'arbitrary, discriminatory, or unfair.'" D'Ambra v. North Providence School Committee, 601 A.2d 1370, 1374 (R.I. 1992) (quoting Altman v. School Committee of Town of Scituate, 115 R.I. 399, 404, 347 A.2d 37, 40 (1975)). Our Supreme Court has likened this two-tier review process to a funnel where the hearing officer, sitting at the mouth of the funnel, is "privileged personally to hear or witness the broad spectrum of information that entered the widest end of the funnel." Environmental Scientific Corporation. v. Durfee, 621 A.2d 200, 208 (R.I. 1993). As such, "the further away from the mouth of the funnel that an administrative official is when he or she evaluates the adjudicative process, the more deference should be owed to the factfinder." Id. at 208.
After exhausting all administrative remedies, an aggrieved party may obtain judicial review from this Court, which "sits as an appellate court with a limited scope of review." Sec. 16-39-4; Mine Safety Appliances Company v. Berry, 620 A.2d 1255, 1259 (R.I. 1993). This Court reviews an agency's decision pursuant to § 42-35-15(g), which provides:
"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 may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant 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." Sec. 42-35-15(g).
Furthermore, this Court's review of an agency's decision "is limited to an examination of the certified record to determine if there is any legally competent evidence therein to support the agency's decision." Barrington School Committee v. Rhode Island State Labor Relations Board, 608 A.2d 1126, 1138 (R.I. 1992). As this Court may not substitute its judgment for that of the agency regarding questions of fact, the agency's decision will be vacated only if it is "totally devoid of competent evidentiary support in the record." Baker v. Department of Employment and Training Board of Review, 637 A.2d 360, 363 (R.I. 1994); see also Power Test Realty Company Limited Partnership v. Coit, 134 A.3d 1213, 1218 (R.I. 2016).
When considering questions of law, including statutory interpretation, this Court engages in a de novo review. Iselin v. Retirement Board of Employees' Retirement System of Rhode Island, 943 A.2d 1045, 1049 (R.I. 2008). However, deference is due to an '"agency's interpretation of an ambiguous statute, unless such interpretation is clearly erroneous or unauthorized.'" Town of Warren v. Bristol Warren Regional School District, 159 A.3d 1029, 1038 (R.I. 2017) (quoting Unistrut Corporation v. State Department of Labor and Training, 922 A.2d 93, 99 (R.I. 2007)). In interpreting an ambiguous statute, this Court's "'ultimate goal is to give effect to the purpose of the act as intended by the Legislature.'" GSM Industrial, Inc. v. Grinnell Fire Protection Systems Company, Inc., 47 A.3d 264, 268 (R.I. 2012) (quoting D'Amico v. Johnston Partners, 866 A.2d 1222, 1224 (R.I. 2005)). When a statute is clear and unambiguous, "'this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings.'" Town of Smithfield v. Churchill & Banks Companies, LLC, 924 A.2d 796, 802 (R.I. 2007) (quoting Moore v. Ballard, 914 A.2d 487, 490 (R.I. 2007)).
III
Analysis
On appeal, Petitioner presents two arguments for review. First, Petitioner asserts that the Commissioner's decision is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record because the record does not support a finding of good and just cause to terminate her employment. Second, Petitioner argues in the alternative that if good and just cause exists, the Commissioner's finding that her termination was effective for the 2014-2015 school year is affected by error of law and in violation of statutory provisions.
A
Good and Just Cause
Petitioner contends that the Committee did not have "good and just cause" to terminate Petitioner's employment. Specifically, Petitioner asserts that the evidence on the record does not support a finding of good and just cause to terminate her employment because the Committee failed to adequately investigate whether the allegations against Petitioner were true. The Petitioner further avers that the discipline imposed was not reasonably related to Petitioner's misconduct, especially in view of Petitioner's twenty-five years of teaching in South Kingstown. In response, the Committee and the Council maintain that the evidence presented before the Hearing Officer overwhelmingly demonstrates good and just cause to terminate Petitioner's employment as a tenured teacher.
Section 16-13-3 of the Rhode Island Teachers' Tenure Act provides, in pertinent part: "No tenured teacher in continuous service shall be dismissed except for good and just cause." Sec. 16-13-3(a). Some guidance from our Supreme Court interpreting or applying the "good and just cause" standard of § 16-13-3 is found in Barber v. Exeter-West Greenwich School Committee, 418 A.2d 13, 21 (R.I. 1980). In Barber, the Supreme Court concluded that the evidence on the record of the teacher's "continuing use of physical force as a means of classroom discipline" supported the trial justice's decision implicitly affirming the commissioner's finding of good and just cause. Id. at 21. However, the Court did so without defining or explaining what type of conduct constitutes good and just cause to terminate a tenured teacher's employment. Id.
In reference to similar legislation regulating the dismissal of tenured teachers, authorities in other jurisdictions have noted that "the words 'for any other good and just cause' have no reasonably defined meaning in the law." New Mexico State Board of Education v. Stoudt, 571 P.2d 1186, 1189 (N.M. 1977). Further it has been determined that "good cause" in a teacher tenure statute
'"is by no means limited to some form of inefficiency or misconduct on the part of the teacher dismissed, but includes any ground put forward by a 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."' Ex parte Alabama State Tenure Commission, 555 So.2d 1071, 1074 (Ala. 1989) (quoting Ellenburg v. Hartselle City Board of Education, 349 So.2d 605, 609 (Ala. Civ. App. 1977)); see also School Committee of Foxborough v. Koski, 391 N.E.2d 708, 709 (Mass. App. Ct. 1979) (good and just cause is "any ground which is put forward by the 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 the general employment context, the Rhode Island Supreme Court has held that "the contractual provisions of the collective bargaining agreement, the terms of the code of ethics and conduct, [ ] the practices and termination policies enforced by the department[, ]" and the employee's conduct are factors that may be considered in determining whether good and just cause exists to terminate an employee. State, Department of Corrections v. Rhode Island Brotherhood of Correctional Officers, 867 A.2d 823, 835 (R.I. 2005); see also State, Department of Corrections v. Rhode Island Brotherhood of Correctional Officers, 115 A.3d 924, 926 (R.I. 2015) (employee terminated for good and just cause where "conduct [was] contrary to the standards of conduct required by the State of Rhode [Island] and the [DOC]. [His] actions call[ed] into question [his] judgment and ethical standards and, therefore, [his] ability to perform [his] job with integrity") (brackets in original).
Petitioner further submits that progressive discipline principles should have applied to her termination. Progressive discipline, in the employer-employee context, is a tool used to "bring about change in the behavior of employees, reserving termination for those guilty of serious offenses and those who have run the gamut of progressive discipline and have shown themselves to be incorrigible." 1 Tim Bornstein et al., Labor and Employment Arbitration § 14.03(3) (2d ed. 2019). Our Supreme Court has previously recognized that employers "must ensure that the punishment for a work-related offense is proportionate to the offense committed." Martone v. State of Rhode Island/Registry of Motor Vehicles, 611 A.2d 384, 385 n.1 (R.I. 1992). However, the use of progressive discipline does not apply to every situation. Indeed, "certain [workplace] offenses are so unacceptable as to preclude more than one such violation. . . . The rationale for termination without progressive discipline in such cases is that the infraction is so obviously unacceptable that the employee should have known that it would not be tolerated." 1 Bornstein at § 14.03(3).
Essentially, "the decision to terminate [a tenured teacher] 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." Rogers v. Board of Education of City of New Haven, 749 A.2d 1173, 1183 (Conn. 2000) (citing Tucker v. Board of Education of Town of Norfolk, 418 A.2d 933, 937 (Conn. 1979)). This decision may be based solely on a single incident. See id. (upholding the termination of a teacher based on the single incident of failing to act to protect students' privacy); Gaylord v. Board of Education, Unified School District No. 218, Morton County, Kansas, 794 P.2d 307, 310 (Kan.Ct.App. 1990) (teacher's taking of unauthorized sick day after administration denied his request for a personal day constituted sufficient cause for termination); Board of Education of Laurel County v. McCollum, 721 S.W.2d 703, 705 (Ky. 1986) (court upheld dismissal where teacher falsely called in sick as such conduct "demonstrates a complete disregard of trust and basic honesty"). Accordingly, [w]hether termination is justifiable on the basis of a single incident is a qualitative not quantitative analysis; one serious incident can suffice." Rogers, 749 A.2d at 1184.
Although the Committee was not required to apply progressive discipline principles, the legally competent evidence in the record demonstrates that Ms. Salvatore was given multiple opportunities to respond to the complaints against her and to remedy the deficits brought to her attention. Indeed, complaints about Ms. Salvatore's performance were ongoing from October 2013 until the Committee ultimately terminated her employment in May 2014. For instance, Ms. Levy stated that once a professional evaluation is submitted to the teacher for review, the teacher "ha[s] a chance to write a comment." Vol. 2 Tr. at 280:21-24. Ms. Salvatore wrote on her evaluation, "'I do not agree with the observation cited in this evaluation.'" Id. at 280:18-19. However, Ms. Levy never received a written response from Ms. Salvatore, and Ms. Salvatore failed to present any "additional evidence sources." Id. at 280:24-281:1; Vol. 5 Tr. at 810:1-6. Likewise, when Ms. Levy gave Ms. Salvatore the "opportunity to clarify" the complaints from Does III and IV's parents, Ms. Salvatore "did not want to talk about it at that time." Vol. 2 Tr. at 405:23-406:3.
1
Students Does I and II
Based on a review of the record, this Court finds that the Council did not err in affirming the Commissioner's finding that good and just cause existed to terminate Ms. Salvatore's employment as it relates to Students Does I and II. For example, the record is replete with evidence that Ms. Salvatore failed to adequately perform her duties as case manager and primary advocate for Does I and II. See Board of Education of West Yuma School District RJ-1 v. Flaming, 938 P.2d 151, 159 (Colo. 1997) (good and just cause includes "any cause bearing a reasonable relationship to the teacher's fitness to discharge her duties or which materially and substantially affects performance"). First, Ms. Salvatore did not effectively communicate with the parents of Doe I and Doe II. Ms. Salvatore had a duty to "provide ongoing communication with the parents" of the students on her caseload. See Regulations of the Council on Elementary and Secondary Education Governing the Certification of Educators in Rhode Island 200-RICR-20-20-1.3.4(D)(2)(a) (Professional Educator Standards) (teachers must make "concerted efforts to communicate with parents and families in a way that shares all necessary information necessary to become meaningful partners in the child's education"). However, Doe I's father testified that he and his wife attempted to contact Ms. Salvatore approximately five or six times via telephone and e-mail to set up a meeting at the beginning of the 2013-2014 school year. Vol. 1 Tr. at 146:1-13. When Ms. Salvatore eventually responded during the second week of school, Doe I's parents "weren't happy [about the delay]" or the fact that Ms. Salvatore would not commit to a meeting date during that initial telephone conversation. Id. at 147:10-13; 148:2-6. As a result, Doe I's parents contacted Ms. Eagan for help in setting up a meeting because Ms. Salvatore "said she was too busy to set up an appointment." Id. at 148:11-15.
Moreover, during the first month of school, Doe I's parents did not receive any communication from Ms. Salvatore or Doe I's regular education teachers regarding Doe I's academics and "had no idea how he was doing in school." Id. at 152:4-10; see Professional Educator Standards 200-RICR-20-20-1.3.4(D)(2)(a). As a result, Doe I's parents were unaware that Doe I was failing social studies and applied literacy until they received his mid-quarter grades in October 2013. Vol. 1 Tr. at 155:15-19. Doe I's father further testified that due to the lack of communication from Ms. Salvatore, they started contacting Doe I's other teachers, "essentially going around [Ms. Salvatore] to get the information[.]" Id. at 166:4-10. Ultimately, by January 2014, Doe I's parents stopped attempting to communicate with Ms. Salvatore and communicated only with Ms. Levy. Id. at 168:7-16.
Additionally, Doe II's mother testified that Ms. Salvatore never reached out to her to identify herself as Doe II's case manager. Vol. 2 Tr. at 305:10-13. Upon receiving Doe II's mid-quarter grades in October 2013, Doe II's mother was "shocked" to learn that Doe II was failing his classes because no one had alerted her sooner. Id. at 289:24-290:10. At this point, Doe II's mother contacted Mr. Vance with her concerns, rather than Ms. Salvatore, because she did not know who served as Doe II's case manager. Id. at 290:16-291:11. Doe II's mother testified that Ms. Salvatore contacted her for the first time in November 2013, at which point Ms. Salvatore told her that "seventh grade is a good year to let them fail if they are going to fail." Id. at 299:17-23; see Professional Educator Standards 200-RICR-20-20-1.3.2(K)(4) (mandating that teachers must interact with students' parents "in a professional manner that is fair and equitable"). After February 2014, Doe II's mother no longer tried contacting Ms. Salvatore and started contacting Ms. Levy exclusively instead. Vol. 2 Tr. at 368:13-20.
Doe II's mother submitted a formal letter to Ms. Eagan and Dr. Stringfellow regarding this comment and others made by Ms. Salvatore. Ms. Levy testified that when she brought this letter to Ms. Salvatore's attention, Ms. Salvatore "never told me that she didn't say that. Ms. Salvatore said to me that she had had conversations with the parent where the parent misinterpreted her." Vol. 5 Tr. at 807:15-22; 808:4-14.
Furthermore, the evidence in the record also reveals that Ms. Salvatore failed to ensure that Doe I and Doe II received the supplementary aids accommodations mandated in their IEPs, further evidencing Ms. Salvatore's failure to perform her duties as case manager and primary advocate. See 20 U.S.C. § 1412(a)(1)(A) (children with disabilities are entitled to a "free appropriate public education" (FAPE)); Special Education Regulations 200-RICR-20-30-6.7.4 (special education and related services outlined in the student's IEP must be implemented as soon as possible, but not later than ten school days). For instance, Doe I required a "check in/check out" procedure whereby he would "check in" with Ms. Salvatore at the beginning of the day to ensure that he had his school work to hand in and "check out" with her at the end of the day to make sure that his homework was recorded correctly in his planner. Vol. 1 Tr. at 81:17-82:3. However, Doe I's father testified that by mid-October, he and his wife had not received any communication from Doe I's teachers via the "check in/check out" procedure and that Doe I's planner was not being signed by his teachers. Id. at 152:2-3; 154:8-12. At an IEP meeting in December 2013, the IEP team determined that the "check in/check out" procedure would become a part of Doe I's IEP "[b]ecause it wasn't being done." Id. at 162:10-14. Yet again, after the December 2013 IEP meeting, there was "[n]othing in [Doe I's] planner and nothing in the check in/check out" area. Id. at 164:13-19; See Professional Educator Standards 200-RICR-20-20-1.3.2(D)(4) (requiring teachers to "[m]ake appropriate accommodations and modifications for individual students who have identified learning differences or needs in an Individualized Educational Plan (IEP)).
In addition, Ms. Levy testified it became clear to her at Doe I's IEP meetings that "Ms. Salvatore wasn't embedding the structures that were built into [Doe I's] IEP with fidelity," including the check in/check out with Doe I and initialing his planner. Vol. 1 Tr. at 104:5-13; Professional Educator Standards 200-RICR-20-20-1.3.2(D). In fact, Ms. Levy noted that "it seem[ed] as though Ms. Salvatore was reluctant to doing it. She seemed a little frustrated that she had to do it. She said she didn't have enough time in her day." Id. at 105:5-8. Team Defender's social studies teacher Eric Towle and science teacher Claudia Hodderson also confirmed that they did not always sign Doe I and Doe II's planners as they could not "chase after" students for their planners. Tr. at 1612:7-9; 1728:15-23, June 1, 2015 (Vol. 11). See also Professional Educator Standards 200-RICR-20-20-1.3.2(G), (K).
The reliable, probative, and substantial evidence in the record demonstrates that the special education services Doe I and Doe II required were not being implemented with fidelity. See 20 U.S.C. § 1412(a)(1)(A); Professional Educator Standards 200-RICR-20-20-1.3.2(D). Although Mr. Towle and Ms. Hodderson testified that there were instances when they did not sign Does I and II's planners, it was Ms. Salvatore's responsibility as case manager to review the IEP and ensure that the accommodations and supplementary aids are communicated to other team members [with] which the student works as well as to ensure that the IEP mandates are being enforced by continuously monitoring the students' goals and progress. See 200-RICR-20-20-1.3.2(D)(4), (I)(6)-(7). Not only did the Commissioner have before her evidence establishing that Ms. Salvatore failed to consistently "check in" and "check out" with Doe I, but also that Ms. Salvatore did not follow up with the regular education teachers to confirm that Doe I and Doe II's planners were being signed. See Ririe v. Board of Trustees of School District No. One, Crook County, Wyoming, 674 P.2d 214, 217-18 (Wyo. 1983) (teacher's inability to communicate effectively with staff and other educators constituted good cause for termination).
Had Ms. Salvatore checked in and out with Does I and II, she would have known that their planners were not consistently signed.
Ms. Salvatore had a duty to monitor her students' progress and make any necessary revisions to the interventions being delivered, if the student is not progressing. See 20 U.S.C. § 1414(d)(4)(A)(ii)(I) (the IEP team shall revise the IEP as appropriate to address "any lack of expected progress toward the annual goals and in the general education curriculum"); Professional Educator Standards 200-RICR-20-20-1.3.2(D)(3) (requiring teachers to "[s]eek information about the impact of students' specific challenges to learning or disabilities on classroom performance, and work with specialists to develop alternative instructional strategies to meet the needs of students where appropriate"). The fact that Does I and II were failing most, if not all, of their classes at the mid-quarter point demonstrates that those students did not receive the proper supplementary aids and services and that Ms. Salvatore failed to intervene to correct the problem. See id. Indeed, Doe II's mother's testimony reveals that Ms. Salvatore failed to monitor Doe II's progress because Ms. Salvatore was not even aware that Doe II was failing English Language Arts. This testimony demonstrates Ms. Salvatore's breach of her duty to provide ongoing communication with her students' parents because Doe I and Doe II's parents were only alerted to the failing grades after receiving the mind-quarter report cards-not by Ms. Salvatore. See Professional Educator Standards 200-RICR-20-20-1.3.2(I)(6) (teachers must "communicate student progress to students, parents/guardians, and other colleagues"). Pursuant to the IDEA and Professional Educator Standards, Ms. Salvatore should have already intervened to determine why Does I and II were failing and have notified their parents so that adjustments could be made. See id.; 20 U.S.C. § 1414(d)(4)(A)(ii).
Doe II's mother testified that at a January 2014 meeting, she raised concerns about Doe II's failing grade in English Language Arts, but Ms. Salvatore represented to her that Doe II was performing well in that class. Vol. 2 Tr. at 314:4-22. In response, Doe II's mother then showed Ms. Salvatore a copy of Doe II's mid-quarter grades, which indicated a grade of "F" in English Language Arts. Id. Ms. Salvatore slid the copy of Doe II's grades back to Doe II's mother "in a throwing manner." Id. at 343:1.
2
Student Doe III
There is also substantial evidence in the record supporting a finding of good and just cause to terminate Ms. Salvatore's employment based upon Ms. Salvatore's failure to perform her duties as case manager and advocate for Doe III. First, Ms. Salvatore advocated for Doe III to be in a more restrictive setting. See 20 U.S.C. § 1412(a)(5)(A) (children with disabilities are entitled to learn in regular education classrooms to "the maximum extent appropriate"). Mr. Vance testified that Ms. Salvatore "would validate the comments of the regular ed teachers . . . that [Doe III] needed more than what could be provided in a regular ed classroom." Tr. at 1050:17-20. Ms. Salvatore wanted to "jump the rungs" of the special education "ladder" by removing Doe III from the collaborative classroom and moving him into the Alternative Learning Program (ALP) classroom, which is a more restrictive setting. Tr. at 1051:4-23, Apr. 15, 2015 (Vol. 6).
Second, when Doe III exhibited attention or behavior issues, Ms. Salvatore frequently dismissed Doe III to Mr. Vance's office for discipline rather than following the guidelines in Doe III's IEP. Professional Educator Standards 200-RICR-20-20-1.3.2(D)(4). During the hearings before the Commissioner, Ms. Levy testified:
"[Doe III's] most prevalent need was in the area of executive functioning. He was a student with significant attentional challenges, and his baseline data, when this IEP was written, references that he needed a great deal of support with attention to tasks and completion of assignments. It's noted that he had significant attentional issues, difficulty focusing on lessons and turning in assignments. The baseline data states that he currently required two to four prompts from adults per 45-minute session in order to begin tasks, sustain tasks and complete tasks." Vol. 2 Tr. at 249:10-20.
As a result, Doe III also benefitted from positive reimbursement and continual praise. Id. at 256:7-16. Ms. Levy noted that if "[Doe III] is asked to, say, leave the classroom, that can only create bigger problems . . . . It's not in the best interest for [Doe III] to be put out of the classroom." Id. at 257:4-13. However, Ms. Salvatore referred Doe III out of the classroom on a near daily basis. Vol. 6 Tr. at 934:16-18. While Ms. Levy conducted a classroom observation of Ms. Salvatore, Ms. Salvatore dismissed Nick to Mr. Vance's office "within the first five minutes of class." Vol. 2 Tr. at 273:7-9. Based upon these observations, Ms. Levy concluded that Doe III's "IEP was not being followed" and that Doe III's behavior "wasn't handled in a way that supported his needs." Id. at 276:2-5; 20 U.S.C. § 1412(a)(1)(A) (children with disabilities are entitled to a FAPE); see also Professional Educator Standards 200-RICR-20-20-1.3.2(D), (K). Similarly, Ms. Eagan testified that Doe III "wasn't receiving his required and entitled special education services when he was being removed from the room for writeups[.]" Tr. at 1531:15-21, May 21, 2015 (Vol. 10); 20 U.S.C. § 1412(a)(1)(A); Professional Educator Standards 200-RICR-20-20-1.3.2 (D), (K).
Doe III had approximately "14 or 15" referrals to Mr. Vance's office during the entire 2014-2015 school year compared to "over 60" referrals during the 2013-2014 school year while on Ms. Salvatore's caseload. Tr. at 1183:24-1184:5, Apr. 16, 2015 (Vol. 7). The majority of those referrals-approximately half-that occurred during the 2013-2014 school year were from Ms. Salvatore. Vol. 6 Tr. at 943:12-19. After being moved from Team Defender to Team Courageous, Doe III did not receive any more referrals to Mr. Vance's office, a result that Ms. Aull credits as being "because of the case manager." Vol. 7 Tr. at 1191:24-1192:2.
Ms. Levy's testimony that Ms. Salvatore's frequent dismissals of Doe III from the classroom negatively impacted Doe III's special education services is further supported by that of Ms. Aull and Mr. Vance. In her testimony, Ms. Aull described the referrals as "exorbitant" and stated, "[Doe III] was out of the classroom constantly, which meant he was not receiving his special education services." Vol. 7 Tr. at 1120:2-4, Apr. 16, 2015. Based on the excessive number of referrals to Mr. Vance's office, it was Ms. Aull's "intent to move that child off that [Defender] team." Id. at 1123:24-1124:1. Similarly, regarding the decision to move Doe III off Team Defender, Mr. Vance testified that the "tipping point was the amount of time that [Doe III] was spending in [Mr. Vance's] office." Vol. 6 Tr. at 934:13-17. Not only did Doe III's frequent referrals to Mr. Vance's office cease when he was removed from Team Defender, his grades also improved.
In addition to failing to perform her duties as Doe III's case manager, there is also competent evidence of record establishing that Ms. Salvatore breached Doe III's confidentiality on numerous occasions. The Family Educational and Privacy Rights Act (FERPA) provides, in pertinent part:
"No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein . . . of students without the written consent of their parents to any individual, agency, or organization, other than to the following-
"(A) other school officials, including teachers within the educational institution or local educational agency, who have been determined by such agency or institution to have legitimate educational interests, including the educational interests of the child for whom consent would otherwise be required[.]" 20 U.S.C. § 1232g(b)(1)(A) (emphasis added).
Therefore, only teachers with "legitimate educational interests" may access a student's educational records without the written consent of the student's parents. Id. Both the Individuals with Disabilities Education Act (IDEA) and Rhode Island law incorporate by reference FERPA's provision regarding the confidentiality of student records. See 20 U.S.C. § 1417(c); 34 C.F.R. § 303.401(b); § 16-17-3(a)(7). Accordingly, a teacher accessing the educational records of a student for whom that teacher has no legitimate educational interest violates federal and state law. See id.
On April 7, 2014, Ms. Salvatore approached Heidi Pineda (Ms. Pineda), Doe III's new case manager on Team Courageous, in Ms. Pineda's classroom for a copies of Doe III's April 1 IEP, the IEP meeting minutes, and the signature page of the IEP. Tr. at 1238:2-22, May 19, 2015 (Vol. 8); Tr. at 2327:15-18, June 4, 2015 (Vol. 14). Ms. Pineda testified that after she gave these documents to Ms. Salvatore, Ms. Salvatore left to make copies. Vol. 8 Tr. at 1240:17-20.
Ms. Pineda also testified that she felt "a little bit uneasy" after giving Ms. Salvatore Doe III's IEP documents and, believing that she may have violated FERPA, Ms. Pineda immediately reported the encounter to Mr. Vance. Vol. 8 Tr. at 1241:1-6.
However, the evidence in the record establishes that Ms. Salvatore knew that she had no legitimate educational interest in Doe III when she requested the documents from Ms. Pineda. First, it is clear by Ms. Salvatore's own admission that she knew she no longer served as Doe III's case manager when she approached Ms. Pineda on April 7, 2014 for documents pertaining to Doe III's IEP. Earlier that day at 8:40 a.m., Ms. Salvatore accessed Doe III's IEP on the school's password-protected electronic database after Linda McCormack, the school guidance counselor, informed Ms. Salvatore that Doe III had changed teams, and saw that Ms. Pineda was now listed as Doe III's case manager. Tr. at 2641:12-23, June 16, 2015 (Vol. 16). Ms. Eagan testified that Ms. Salvatore's claim that she did not know she no longer served as Doe III's case manager when Ms. Salvatore approached Ms. Pineda "didn't make sense . . . [b]ecause Ms. Salvatore knew to go to Ms. Pineda to get documents, so why would you go to another special education teacher to get documents if [Ms. Salvatore] was the case manager." Tr. at 1460:15-20, May 20, 2015 (Vol. 9).
There is also evidence on the record demonstrating that Ms. Salvatore knew she no longer served as Doe III's case manager even prior to April 1, 2014. Ms. Pineda testified that Ms. Salvatore approached her on two separate occasions prior to April 1, 2014 regarding Doe III's team change. Id. at 1234:16-1235:3. First, Ms. Salvatore asked Ms. Pineda why Doe III's team placement had changed, to which Ms. Pineda replied that "it was in the best interest of the student." Id. at 1235:4-20. Thereafter, Ms. Salvatore approached Ms. Pineda at the local gym on Sunday, March 30, 2014. Id. at 1236:4-17. During this exchange, Ms. Salvatore inquired as to the educational services that Doe III would be receiving. Id. Ms. Pineda further testified that Ms. Salvatore "seemed to be bothered by the fact that [Doe III] was being moved from the Defender team to the Courageous team and was kind of looking for answers, it felt like for me, and I didn't really have any for her." Id. at 1237:10-15.
Moreover, when Ms. Aull demanded the documents back from Ms. Salvatore, Ms. Aull testified that Ms. Salvatore said she took Doe III's IEP documents because "[Ms. Salvatore] was completing her files." Vol. 7 Tr. at 1129:18-22. This testimony is corroborated by that of Ms. Salvatore herself, who stated that her purpose in obtaining the documents was to close her file on Doe III. Vol. 14 Tr. at 2328:17-24. Thus, the record demonstrates that Ms. Salvatore's purpose in obtaining Doe III's records was for her own personal use, not pursuant to a legitimate educational interest.
Ms. Salvatore subsequently failed to comply with Ms. Aull's directive to return all the documents to Ms. Pineda and then falsely represented to Ms. Aull that she had returned the records. Vol. 7 Tr. at 1130:3-1134:6. This dishonesty violates the Rhode Island Professional Educator Standards and further supports a finding of good and just cause. 200-20-20-1.3.2(K); see State, Department of Corrections, 115 A.3d at 926 (correctional officer's dishonesty during investigation contributed to his termination because such dishonesty violated "the standards of conduct" required by his employer); Board of Education of Laurel County, 721 S.W.2d at 705 (termination upheld where teacher's conduct "demonstrate[d] a complete disregard of trust and basic honesty").
Ms. Salvatore went further than just intimidating Ms. Pineda into handing over Doe III's IEP documents; Ms. Salvatore also went to the Office of Pupil Personnel Services on a surreptitious mission to obtain part of Doe III's IEP documents to which she had no right to access. On April 10, 2014, Ms. Salvatore went to the Office of Pupil Personnel Services, accessed Doe III's special education file, and began making a copy of Doe III's special education eligibility form. Vol. 9 Tr. at 1368:22-1369:2. Deborah Flynn (Ms. Flynn), the keeper of these records, testified that "teachers are not supposed to have the eligibility [form]. That's not something, especially a teacher can have, or any staff." Id. at 1370:6-11. When Ms. Flynn caught Ms. Salvatore illegally copying this form, Ms. Salvatore deceptively told Ms. Flynn that she was copying the educational evaluation form. Id. at 1371:2-20; see State, Department of Corrections, 115 A.3d at 926; Board of Education of Laurel County, 721 S.W.2d at 704. However, Ms. Flynn immediately told Ms. Salvatore, "[T]hat's not the educational evaluation. That's the eligibility and you can't have it." Id. at 1371:2-20.
From the time Ms. Salvatore came into Ms. Flynn's office and pulled Doe III's file without asking, Ms. Flynn grew increasingly suspicious of Ms. Salvatore's actions and motive. Tr. at 1359:2-4; 1363:2-5. Ms. Salvatore's declining to review the file in Ms. Flynn's office and going in the kitchen instead sent "red flag" signals to Ms. Flynn. Id. According to Ms. Flynn, no teacher had ever gone in another room in the building to review a student's file. Id. at 1358:10-15; 1360:7-9. As Ms. Flynn "felt uncomfortable" with Ms. Salvatore's actions, Ms. Flynn "left [her] office to go find out where [Ms. Salvatore] went." Id. at 1359:14-16.
At this point, Ms. Eagan happened to walk by the file room and observed Ms. Salvatore accessing Doe III's file. Id. at 1463:2-3; 1465:6-8. Ms. Eagan testified that she was troubled "a great deal" by this because "[t]he day before, at the midyear conference, [Ms. Eagan] questioned [Ms. Salvatore] and told her that she was not the case manager of the student, and then here [Ms. Salvatore] was accessing his records." Id. at 1465:10-19. Additionally, Ms. Eagan verified that Ms. Salvatore's accessing Doe III's file "was in violation of FERPA law, it was in violation of student confidentiality laws[, ] and it was in violation of the School Committee policy." Id. at 1502:1-3. Subsequently, Ms. Eagan and the Superintendent, having lost all confidence and trust in Ms. Salvatore, determined that "this was a willful insubordination and . . . that [Ms. Salvatore] should be terminated." Id. at 1501:17-23; 1502:4-17.
Ms. Eagan also testified that Ms. Salvatore's excuse that she was looking for the signature page, not the eligibility form, "made no sense" because the signature page "would not be in the file." Id. at 1468:7-22. Regardless of the specific form, Ms. Eagan stated that Ms. Salvatore had "no reason" to access Doe III's file at all because she was not the case manager. Id. at 1466:24-1467:4. The inference arises that Ms. Salvatore's purpose in accessing Doe III's educational records was to defend herself against disciplinary action, which Ms. Eagan testified is not a legitimate educational purpose. Id. at 1500:24-1501:3.
The evidence in the record establishes that Ms. Salvatore breached Doe III's confidentiality in violation of state and federal law and school policy on multiple occasions. Consequently, this evidence supports the Council's decision affirming the Commissioner's finding that these actions constituted good and just cause to terminate Ms. Salvatore's employment. See State v. Saavedra, 117 A.3d 1169 (N.J. 2015) (non-teacher school employee terminated and criminally charged for accessing and removing student educational records from school property in violation of FERPA and analogous state law); Rogers, 749 A.2d at 1184 (termination justifiable on the basis of a single incident).
3
Student Doe IV
The record contains competent evidence supporting the Council's decisions affirming the Commissioner's finding that Ms. Salvatore failed to perform her duties as case manager with respect to Doe IV. When Doe IV joined Ms. Salvatore's caseload during the 2013-2014 school year, there were specific strategies "in place when an unexpected behavior occurs . . . it could be verbal outbursts, unexpected noises. If [Doe IV] is demonstrating this unexpected behavior, the behavior will be processed with him by the special education teacher that's working with him[.]" Tr. at 450:8-23, Jan. 23, 2015 (Vol. 3). Therefore, it was Ms. Salvatore's responsibility as the special educator that "if [Doe IV] did demonstrate those unexpected behaviors he would be processed, it would be processed with him, either within the classroom setting or immediately outside the classroom door . . . he would then reenter, return to his task and/or his seat and have an opportunity to try again." Id. at 451:2-9. As Doe IV's behavioral issues were a consequence of his disability, "[i]t was extremely imperative that [Doe IV's] behaviors were based on his disability and not to be looked at as a behavior problem." Id. at 10-12.
The record evidences one incident in March 2014, wherein Doe IV yelled "shut the f up" upon entering the collaborative English Language Arts classroom in response to his classmates wishing Doe IV a happy birthday. This outburst was precisely the type of outburst expected from Doe IV and which his IEP was designed to address. See Vol. 2 Tr. at 411:5-23 (Doe IV's unexpected behaviors and use of unexpected words, such as swear words, "was part of his disability. It wasn't [ ] looked at as a behavior problem. It was something that we needed to address through [special education.]"). However, rather than process the situation with Doe IV using specific strategies, Ms. Salvatore immediately removed Doe IV from the collaborative classroom-where he was entitled to receive instruction for ten to fifteen minutes-and sent him back to Ms. Giarrusso's ALP classroom with a disciplinary slip. This action directly contravened Doe IV's IEP-a violation of federal law-and deprived Doe IV of both the collaborative classroom learning and the "social awareness" and "emotional control" education that Doe IV required. See Professional Educator Standards 200-RICR-20-20-1.3.2(D)(4), (K)(3) (teachers required to implement the instructional strategies outlined in students' IEPs in compliance with state and federal law).
Upon seeing Doe IV's quick return to her ALP classroom, Ms. Giarrusso asked what happened and then proceeded to process the outburst with Doe IV pursuant to Doe IV's IEP, as Ms. Salvatore should have done in the English Language Arts classroom. Vol. 3 Tr. at 490:9-21.
Moreover, Ms. Salvatore breached Doe IV's privacy when she stated to Ms. Giarrusso after the incident, while holding a discipline slip in her hand, "I can't write him up because we can't hand these in, or we're not sending them home, or we can't" and "We're not supposed to do this or we'll be in trouble or something along those lines." Vol. 3 Tr. at 494:9-20; see Professional Educator Standards 200-RICR-20-20-1.3.4 (Rhode Island educators are required to "[m]aintain confidentiality of all student information and dispense that information only when required by professional practice or state or federal law."). Ms. Giarrusso confirmed Doe IV's mother's testimony that Ms. Salvatore made this statement right in front of Doe IV and "loud enough that many students could hear." Id. at 495:1-6; see also State, Dept. of Corrections, 115 A.3d at 926 (employee terminated where employee's actions called into question employee's "ability to perform [his] job with integrity") (bracket in original). Additionally, in response to whether she had made such a statement, Ms. Salvatore herself testified, "I didn't use those exact words, and I'm not recalling exactly what I said . . . I don't recall specifically what I said to her." Vol. 14 Tr. at 2299:9-13. Not only did this statement breach Doe IV's privacy, but it also made regulating Doe IV's behavior more difficult as Doe IV's mother testified that Doe IV reported this statement to her excitedly because he believed that he could not get in trouble for his actions. Vol. 3 Tr. at 553:17-24.
The record demonstrates that Ms. Salvatore consistently failed to carry out her responsibilities as case manager for Does I, II, III, and IV. In doing so, Ms. Salvatore breached federal law, state law, and committee policy. Additionally, Ms. Salvatore regularly failed to act in conformity with the regulations adopted by the Rhode Island Board of Education. Therefore, this Court, sitting furthest away from the "mouth of the funnel," must defer to the credibility and factual findings of the Commissioner unless those findings are "totally devoid" of support within the record. As the Commissioner found that the witnesses "testified convincingly," and there is nothing in the record indicating otherwise, this Court cannot question the credibility of the witnesses. Commissioner's Decision at 19 n.28. Accordingly, this Court finds that the Council's decision to affirm the Commissioner's finding that good and just cause existed to terminate Ms. Salvatore's employment is neither clearly erroneous nor arbitrary or capricious. See § 42-35-15(g)(5)-(6).
B
Effect of Post-March 1 Termination
Petitioner also avers that her termination should have been effective at the start of the 2015-2016 school year rather than the preceding 2014-2015 school year because her termination occurred after the statutory notice deadline set forth in § 16-13-3. The Commissioner found, and the Council affirmed, that Petitioner's termination was effective for the 2014-2015 school year. See Commissioner's Decision at 22.
Pursuant to § 16-13-3(a) of the Teachers' Tenure Act, "Whenever a tenured teacher in continuous service is to be dismissed, the notice of dismissal shall be given to the teacher, in writing, on or before March 1st of the school year immediately preceding the school year in which the dismissal is to become effective." However, the Commissioner determined that "[a] district terminating even a tenured teacher may do so immediately when the precipitating cause arises after the statutory deadline." Commissioner's Decision at 21. In doing so, the Commissioner reasoned:
"Requiring a school district to retain (or continue to pay) a tenured teacher who committed serious misconduct after March 1st for the remainder of that school year and the entirety of the ensuing school year merely creates an artificial waiting period serving no other purpose than to siphon funds that could be used for educational programs." Id. Therefore, the Commissioner found that Petitioner's termination was effective as of May 12, 2014. Id. at 22.
Whether the March 1 deadline set forth in § 16-13-3 applies to Petitioner's termination is a question of statutory interpretation. This Court reviews an agency's interpretation of a statute de novo. Iselin, 943 A.2d at 1049. To the extent that the statutory language is '"clear and unambiguous[, ] [this Court is] bound to ascribe the plain and ordinary meaning of the words of the statute and our inquiry is at an end."' Town of Burrillville v. Pascoag Apartment Associates, LLC, 950 A.2d 435, 445 (R.I. 2008) (quoting Unistrut Corporation, 922 A.2d at 98). In these instances, this Court is '"not required to give any deference to the agency's reading of the statute."' Town of Warren, 159 A.3d at 1038 (quoting Unistrut Corporation, 922 A.2d at 99).
Conversely, when the statutory language is ambiguous and '"susceptible of more than one meaning, we employ our well-established maxims of statutory construction in an effort to glean the intent of the Legislature.'" Kayak Centre at Wickford Cove, LLC v. Town of Narragansett, 116 A.3d 250, 256 (R.I. 2015) (quoting Town of Burrillville, 950 A.2d at 445). In determining "which of the two or more permissible statutory interpretations will control, [this Court] 'give[s] deference to an agency's interpretation of an ambiguous statute that it has been charged with administering and enforcing, provided that the agency's construction is neither clearly erroneous nor unauthorized.'" In re Proposed Town of New Shoreham Project, 25 A.3d 482, 505 (R.I. 2011) (quoting Town of Burrillville, 950 A.2d at 445). Although the agency's interpretation of the statute is not controlling, it is '"entitled to great weight."' Id. at 506 (quoting Town of Burrillville, 950 A.2d at 445-46); see also Town of Warren, 159 A.3d at 1038 (quoting Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984)) ("Like the United States Supreme Court, we recognize 'that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer[.]'"). Notwithstanding the deference given to the agency's interpretation, our Supreme Court noted: "our interpretation of an ambiguous statute 'is grounded in policy considerations and we will not apply a statute in a manner that will defeat its underlying purpose.'" Town of Burrillville, 950 A.2d at 446 (quoting Arnold v. Rhode Island Department of Labor and Training Board of Review, 822 A.2d 164, 169 (R.I. 2003)).
The March 1 deadline provision of § 16-13-3 has been presented to the Superior Court previously. Petitioner relies on such Superior Court case, McCrink v. City of Providence, No. PC 10-4304, 2012 WL 4739138 (R.I. Super. Sept. 28, 2012), for the proposition that the March 1 notice requirement applies to all tenured teachers' terminations without exception. Petitioner asserts that the doctrine of stare decisis requires the Council to apply this Court's ruling in McCrink to Petitioner's claim. However, it is well-settled that "only the decisions of [the Rhode Island Supreme] [C]ourt are of binding effect upon all justices of trial courts of this state." Forte Brothers, Inc. v. State, Department of Transportation, 541 A.2d 1194, 1196 (R.I. 1988) (emphasis added). Our Supreme Court has explicitly declined to extend the doctrine of stare decisis "regarding decisions of trial courts as having binding effects upon other members of the same or coordinate trial courts." Id. Consequently, this Court's ruling in McCrink is binding upon neither the Commissioner nor this Court. At the same time, even though Superior Court decisions are nonbinding, there is no error in a trial justice looking to the rationale of previous Superior Court decisions to guide his or her reasoning where "the facts of the present case are virtually the same" as the facts of the previous Superior Court case. See Breggia v. Mortgage Electronic Registration Systems, Inc., 102 A.3d 636, 641 n.6 (R.I. 2014).
In McCrink, the Providence School Board placed a tenured teacher on paid suspension on May 19, 2006 for his failure to leave adequate lesson plans for a substitute teacher on May 16 and 17, 2006. The Providence School Board subsequently terminated the teacher's employment on September 8, 2006, effective for the 2006-2007 school year. Id. at *2. The teacher appealed his termination to the Commissioner of Education, who affirmed the Providence School Board's decision. Id. at *3. This Court, McGuirl, J.-in ruling the Commissioner's interpretation of § 16-13-3 was clearly erroneous-found § 16-13-3 to be "both clear and unambiguous in setting out the procedure by which a tenured teacher may be dismissed" and thus found that the teacher's termination could not be effective until the 2007-2008 school year. Id. at *8.
Similarly, in Quattrucci v. Rhode Island Board of Regents for Elementary and Secondary Education, No. C.A. PC 04-6767, 2006 WL 1628824 (R.I. Super. May 30, 2006), a tenured teacher appealed her termination to the Commissioner of Education. The Commissioner found that because the teacher had been given notice of her termination on April 27, 1998, her termination could not be effective until the beginning of the 1999-2000 school year. Id. at *5. This Court, Rodgers, J., affirming the Commissioner's decision, found:
"The deadline set forth in § 16-13-3 is explicit and unambiguous. In Rhode Island, school boards must give tenured teachers notice of an impending dismissal by March 1 if the dismissal is to be effectuated the following school year. Therefore, because Plaintiff was given notice on April 27, 1998, the Commissioner was correct in finding that her dismissal could not take place during the 1998-1999 school year." Id.
Based upon its reading of the statute, this Court finds that § 16-13-3 is clear and unambiguous. As such, this Court must attribute the plain and ordinary meaning of the words of the statute and "apply the statute as written." See Mutual Development Corporation v. Ward Fisher & Company, LLP, 47 A.3d 319, 328 (R.I. 2012) ("when we examine an unambiguous statute, there is no room for statutory construction and we must apply the statute as written"). Indeed, the plain language of § 16-13-3 does not lend itself subject to more than one reasonable interpretation. The language of § 16-13-3 makes clear that when a tenured teacher in continuous service is to be terminated, notice of dismissal must be given on or before March 1 of the school year immediately preceding the school year in which the dismissal is to be effective.
The City and the Council both argue that § 16-13-3 should be read in pari materia with § 16-12-6, which provides that "[t]he school committee of any town may, on reasonable notice and hearing, dismiss any teacher for refusal to conform to the regulations made by the committee, or for other just cause." Sec. 16-12-6. In doing so, Respondents aver, a teacher who is terminated for cause for conduct occurring after March 1 may be terminated immediately, thus avoiding the arbitrary and absurd result of retaining or paying a terminated teacher for an additional school year.
Statutes that relate '"to the same subject matter should be considered together so that they will harmonize with each other and be consistent with their general objective and scope."' South County Post & Beam, Inc. v. McMahon, 116 A.3d 204, 215 (R.I. 2015) (quoting Such v. State, 950 A.2d 1150, 1156 (R.I. 2008)) (internal quotations omitted). These statutes "are considered to be in pari materia, which stands for the simple proposition that 'statutes on the same subject . . . are, when enacted by the same jurisdiction, to be read in relation to each other.'" Such, 950 A.2d at 1156 (citing Horn v. Southern Union Company, 927 A.2d 292, 295 (R.I. 2007)).
There is no conflict between § 16-13-3 and § 16-12-6. The latter statute permits any teacher to be dismissed upon reasonable notice without reference to any specific notice deadline. However, it is significant to note that chapter 12 of title 16 addresses the "Rights and Duties of Teachers Generally." A closer examination of the entire statutory scheme reveals that the
Legislature expounds upon what constitutes the "reasonable notice" referenced in § 16-12-6, addressing the rights of tenured teachers separately from those of nontenured teachers. See Ryan v. City of Providence, 11 A.3d 68, 71 (R.I. 2011) ("individual sections must be considered in the context of the entire statutory scheme, not as if each section were independent of all other sections").
It is clear that the Legislature intended to treat tenured teachers differently from nontenured teachers and did so by setting forth different notice requirements for these two classes of teachers through the enactment of § 16-13-2 and § 16-13-3. See Martone v. Johnston School Committee, 824 A.2d 426, 431 (R.I. 2003) ("The best evidence of [legislative] intent can be found in the plain language used in the statute."). Section 16-13-3 specifically sets forth the notice requirements applicable only to tenured teachers. While § 16-12-6 permits a school district to terminate any teacher, provided that the teacher receives "reasonable notice," § 16-13-3 specifies that, for tenured teachers, "reasonable notice" requires notice of dismissal prior to March 1 of the school year immediately preceding the school year in which the dismissal is to become effective. See 2A Norman J. Singer and Shambie Singer, Statutes and Statutory Construction § 46:5 at 204 (7th ed. Apr. 2014 update) ("A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section of a statute should be construed in connection with every other part or section to produce a harmonious whole."). Thus, § 16-12-6 does not conflict with § 16-13-3; rather, § 16-13-3 specifically defines the rights and duties of tenured teachers with respect to dismissal that are generally set forth in § 16-12-6.
Section 16-13-2 reads, in part:
"Teaching service shall be on the basis of an annual contract, except as hereinafter provided, and the contract shall be deemed to be continuous unless the governing body of the schools shall notify the teacher, in writing, on or before March 1, that the contract for the ensuing year will not be renewed. If the dismissal or nonrenewal is based on fiscal exigency or program reorganization, the governing body shall notify the teacher on or before June 1st of the school year immediately preceding the school year in which the dismissal or nonrenewal is to become effective. Provided, however, that a teacher, upon request, shall be furnished a statement of cause for dismissal or nonrenewal of his or her contract by the school committee; provided further, that whenever any contract is not renewed, or the teacher is dismissed, the teacher shall be entitled to a hearing and appeal pursuant to the procedure set forth in § 16-13-4." Sec. 16-13-2(a).
In Ciccone, a tenured teacher in the Cranston school department alleged that the school committee did not provide him with written notice of its decision to suspend his employment as required by § 16-13-2. 513 A.2d at 33. Our Supreme Court, in finding that the notice provisions of § 16-13-2 apply only to nontenured teachers rather than to both tenured and nontenured teachers, explained: "The Legislature sought to create a clear distinction between annual contracts . . . and other contracts 'as hereinafter provided.'" Id. at 35. The other contracts "as hereinafter provided" are tenure contracts. See id. ("An examination of the Teachers' Tenure Act, chapter 13 of title 16, reveals that the only other teaching status provided for by statute is that of tenure.").
Moreover, if-as the Committee and the Council urge-this Court finds that § 16-12-6 permits school districts to circumvent the March 1 deadline applicable to tenured teachers, § 16-13-3 is rendered completely ineffective. The Committee and the Council contend that the statutory notice requirement does not apply to Ms. Salvatore's case because the conduct warranting dismissal did not occur until after March 1 of the 2013-2014 school year. However, there is nothing in the language of the statute suggesting that there are any circumstances which would be excepted from the March 1 notice requirement. In fact, the broadly inclusive language of § 16-13-3 indicates that the March 1 notice requirement applies "[w]henever a tenured teacher in continuous service is to be dismissed." Sec. 16-13-3. The use of the term "whenever" denotes that any time a tenured teacher is to be dismissed, notice must be provided in compliance with the March 1 deadline; this language eliminates the possibility that there are exceptions to this requirement. See Merriam Webster's Collegiate Dictionary 134110th ed. (2001) (defining "whenever" as "at any or every time"); see also Town of Burrillville, 950 A.2d at 445 (for the proposition that when a statute is clear and unambiguous "we must ascribe the plain and ordinary meaning of the words of the statute").
Although an agency's interpretation of a statute is generally "entitled to great weight," this Court is not required to defer to '"that agency's interpretation of an ambiguous statute unless such interpretation or clearly erroneous or unauthorized."' See Town of Warren, 159 A.3d at 1038 (quoting Unistrut Corporation, 922 A.2d at 99). Here, § 16-13-3 is both clear and unambiguous in setting forth the procedure by which a tenured teacher's employment may be terminated, including the explicit notice requirements. This Court recognizes the difficulties that arise when a tenured teacher is terminated for cause after March 1, resulting in the school department having to compensate the teacher for an additional school year. However, "it is not the function of this Court to rewrite the statute by judicial interpretation, nor is it legal for those charged with the responsibility of implementing the statute to subvert its directives by administrative interpretation because they find it inconvenient or difficult to comply with its provisions." Barber v. Vose, 682 A.2d 908, 917 (R.I. 1996) (citing DeAngelis v. Rhode Island Ethics Commission, 656 A.2d 967, 970 (R.I. 1995)). While the Council and the Committee argue that continuing to compensate a tenured teacher is a result that the statute should be construed to avoid, it is the direct result that the Legislature intended in protecting the rights of tenured teachers. See Statutes and Statutory Construction § 46:4 (courts may not modify a statute "where the language, taken as a whole, is clear and unambiguous, even where injustice or hardship result").
In the instant matter, the Superintendent notified Petitioner in writing on April 17, 2014, that she would recommend the Committee terminate Petitioner's employment. The Committee subsequently terminated Petitioner's employment, effective May 12, 2014. As Petitioner did not receive notice prior to March 1, this Court finds that the Commissioner's Decision that Petitioner's termination could be effective for the 2014-2015 school year is in violation of statutory provisions and clearly erroneous. See § 42-35-15(g)(1), (5). Accordingly, this Court holds that Petitioner's termination was effective as of the 2015-2016 school year.
IV
Conclusion
Based on a review of the entire record, this Court is satisfied that the Council's decision affirming the decisions of the Commission and the Committee, which found good and just cause to support the termination of Petitioner's employment in the South Kingstown School Department, was not a violation of statutory provisions, clearly erroneous in view of the reliable, probative, and substantial evidence on the record, or an abuse of discretion. The substantial rights of the Petitioner have not been prejudiced. However, the Court also finds that the Council's affirmation of the Commissioner's finding that the notice requirement of § 16-13-3 was inapplicable to Petitioner's termination was clearly erroneous and in violation of statutory provisions. Accordingly, the Court holds that Petitioner's termination was effective for the 2015-2016 school year. The Council's decision is therefore affirmed in part and reversed in part.
Counsel shall submit the appropriate judgment for entry.