See You In Court – January 2022

The headline in the Nutmeg Bugle was unwelcome news for the Nutmeg Board of Education:  “Breaking Bad in Nutmeg! Tom Teacher arrested for running a meth lab!!”  Bob Bombast, veteran Board member, called Ms. Superintendent immediately, demanding the details.  But Ms. Superintendent was cautious, and she told Bob that everything is under control and he should just let her handle the situation. 

Bob was frustrated, and he called fellow Board member Mal Content to see what he knew.  Mal told Bob that the rumors had been swirling for months that something was serious wrong with Tom Teacher, and Mal said that he couldn’t wait to fire Tom “to send a message to the community.”

The other Board members soon had a chance to weigh in.  At the first Board meeting after the news broke, Tom Teacher was quite the topic during Public Comment.  Most speakers called for Tom’s immediate termination, though one parent spoke up for Tom, urging the Board to give Tom a leave because he is obviously “sick.”  Bob Bombast couldn’t resist weighing in, announcing that the Board has a zero tolerance policy against teachers and meth labs.  Board member Red Cent followed up by assuring the public that the Board would be firing Tom at its first opportunity if the charges stick.

Tom’s fate continued to be a topic of conversation in Nutmeg for some time.  Curious parents stopped Board members at the grocery store, asking them about the case.  Always willing to engage, Bob told several parents that he shared their concern and that he certainly did not want a teacher “like Tom” to be teaching Nutmeg children.

Meanwhile, Ms. Superintendent initiated termination proceedings.  Given his status as a tenured teacher, Tom elected to have his case heard by an impartial hearing panel, as permitted by the Teacher Tenure Act.  At the hearing, the Superintendent and her lawyer came on strong, providing not only the police report, but also calling on the arresting officer to describe the arrest and the crystal meth they found on Tom’s person.  However, Tom explained that it was all a big mix-up and that the meth lab was not his.  In fact, he claimed, the police got the address wrong, and when he was arrested, he was just at someone else’s meth lab to buy some crystal meth.  He also provided a doctor’s note describing his addiction and his enrollment in a rehabilitation program.

Surprisingly, the impartial hearing officer bought Tom’s story.  In writing her decision, she incorporated Tom’s version of events in her findings of fact, including his purchasing crystal meth, and she recommended that Tom be placed on an unpaid leave of absence so that he can get treatment.  She also recommended that Tom be reinstated to his teaching position next fall if he presents a doctor’s note certifying that he has successfully completed a therapeutic program.

The hearing officer submitted her report to the Nutmeg Board of Education, and at the next Board meeting, the Board members made short work of it.  Bob Bombast started the discussion by moving that (1) the Board accepts the hearing officer’s findings of fact, (2) the Board rejects the hearing officer’s recommendation, and (3) the Board hereby terminates Tom Teacher’s employment with the Nutmeg Public Schools.  After limited discussion, the Board voted 5-0 to terminate Tom’s contract.

Does Tom Teacher have a claim on appeal?

*         *         *

If Tom challenges this action, he may well prevail on appeal based on a claim that the Board violated his due process rights because having an impartial judge is a core element of due process.  But before we discuss how Board members violated Tom’s rights by not being impartial, we will review how the Teacher Tenure Act works.

A threshold question is who is a “teacher” under Connecticut law.  The Tenure Act defines a “teacher” as an employee below the rank of Superintendent who (1) holds a certificate issued by the State Department of Education, (2) is employed in a position requiring such certification, and (3) is employed in that position for at least ninety calendar days.  The term “teacher” also applies to administrators all the way up to (but not including) the superintendent.  Significantly, however, administrators do not achieve tenure in their administrative assignments, but rather only in their continued employment, which is subject to the procedures under the Tenure Act.

Those procedures are different for non-tenure and for tenure teachers.  A teacher is non-tenure for the first forty school months of employment (except for teachers who previously achieved tenure in Connecticut in the preceding five years, who achieve tenure after twenty school months).  During the non-tenure years, teacher contracts are subject to non-renewal for any reasonable cause, as the superintendent may recommend.  The contracts of non-tenure teachers are also subject to termination, for the same reasons that apply to tenure teachers, but any hearing on the termination of a non-tenure teacher will be before the board of education (or a board committee) unless both the superintendent and the teacher agree on an impartial hearing officer. 

By contrast, the contracts of tenure teachers are not subject to non-renewal, and tenure teachers may unilaterally require that any termination hearing be held before an impartial hearing officer, and most often they do.  When the teacher elects an impartial hearing officer, as was the case here, the impartial hearing officer issue findings of fact, which are binding, and a recommendation to the board of education, which is not.  The final decision whether the terminate the contract rests with the board of education, and the board may reject the recommendation of the impartial hearing officer as long as the findings of fact provide a reasonable basis for that action. 

Given that board of education members make the final decision on contract termination for both tenure and non-tenure teachers, board members have a special responsibility to preserve their impartiality.  When a termination case may be coming to the board for adjudication, board members must be particularly careful not to comment publicly about the case or even discuss the case among themselves except when they are properly convened in a hearing.  Discussing controversial personnel matters with others at the grocery store or elsewhere outside of a hearing can make it impossible for the board member hearing a teacher termination case to serve as an impartial judge. 

Here, three of the five members of the Nutmeg Board of Education were anything but impartial, with Mal expressing an interest in firing Tom to send a message and Bob agreeing with others that Nutmeg shouldn’t employ a teacher “like Tom.”  Absent such impropriety, the Board could have rejected the hearing officer’s recommendation, and terminated Tom’s contract.  However, their evident bias against Tom would give Tom a strong due process claim on appeal.