Mary E. Richards v. Groton Board of Education (2015)

MEMORANDUM OF DECISION RE PLAINTIFF'S ADMINISTRATIVE APPEAL

This action is an administrative appeal from a April 22, 2013 decision by the Groton Board of Education (board).  The plaintiff, Mary E. Richards, filed this appeal in the Superior Court on May 6, 2013, against the defendant board.  A record of the proceedings before the board was filed on June 10, 2013.

FACTS

The relevant facts as found by the tripartite panel (panel), and adopted in toto by the board, are as follows.  The plaintiff was employed for forty years as a tenured teacher by Groton Public Schools (GPS), and specifically has taught first grade for approximately twenty-eight years at the Mary Morrison Elementary School.

On August 29, 2012, the plaintiff received a letter from the then Interim Superintendent of Schools, Dr. Randall Collins, which advised her that the Administration of the Groton Public Schools (administration) was considering the termination of her employment contract.  The plaintiff, by letter dated August 31, 2012, requested the reasons why termination was under consideration.  On September 6, 2012, Collins provided the following reasons:  (1) inefficiency;  (2) incompetence;  and (3) other due and sufficient cause.  On September 17, 2012, the plaintiff requested a hearing, pursuant to General Statutes § 10–151(d).  The panel held termination hearings on October 17, 2012, November 27, 2012, December 11, 2012, December 17, 2012, and December 18, 2012.  Both parties were represented by counsel.  The administration called five witnesses:  Dr. Monica Sanchez–Franzone, Principal of the Mary Morrison School;  Christina Post, Assistant Principal of the Mary Morrison School;  Laurie LePine, Director of Human Resources for GPS;  Karen Ferrie, Special Needs Paraprofessional;  and Lauren Santacroce–Lyon, Kindergarten Paraprofessional.

Following the termination hearings, the parties submitted post-hearing briefs, and the panel met in executive session on February 7, 2013, February 26, 2013, and April 10, 2013.  The panel issued its Findings of Fact and Recommendation on April 16, 2013.  The panel articulated eighty-seven Findings of Fact, and those pertinent to the present appeal are as follows.

Dr. Franzone testified that a certified teacher, Judy Strauss, reported to her in March of 2011 that she witnessed the plaintiff grab a first grade student in anger, tell the student that she was “tired of him,” and shoved or pushed him to the floor, saying “I've had enough of you today.”  Franzone testified that she investigated Strauss' report, which included speaking with Jessica Grafton, the paraprofessional in the plaintiff's classroom at the time of the incident.  According to Franzone, Grafton's account of the incident was nearly identical to Strauss's.  After meeting with the plaintiff regarding this incident, the plaintiff received a one-day unpaid suspension, which the plaintiff did not contest and served.

Further, Ferrie, who was assigned to a student in the plaintiff's first grade classroom at the start of the 2011–2012 school year, testified to observing several disturbing issues regarding the plaintiff's behavior toward her students, including yelling and screaming at students;  targeting certain students;  slamming books on students' desks;  blaming students for her confusion;  belittling, embarrassing, and humiliating students;  name calling and insulting students;  refusing to allow certain students to use the bathroom, which resulted in several incidents of students wetting themselves;  one incident of shaking a student while yelling at him;  disposing of, erasing, and permitting multiple attempts at writing prompts;  and failing to console or comfort students.

Ferrie reported these issues to Franzone, who investigated her allegations.  She interviewed the student who the plaintiff allegedly shook while yelling at him, and the student reported to Franzone that an altercation between himself and the plaintiff occurred, during which she put her hands on him when angry, and that the plaintiff squeezed his wrist if he did something wrong.  Further, Franzone observed the plaintiff in her classroom and testified to observing the plaintiff failing to support two of her students when they were in distress.  Franzone also testified that the plaintiff called one of these students a “baby” in front of the class and within the student's earshot.  In addition, Franzone interviewed another first grade teacher, Joyce Pope, who reported to the plaintiff that she witnessed the plaintiff making inappropriate, belittling, and demeaning comments to a student regarding his ability to use the bathroom.

Following her investigation, Franzone sent an email to the plaintiff and several school administrators describing her concerns about the plaintiff's conduct toward her students.  The plaintiff, Franzone, Union representative Gail Hooker, Union President Beth Horler, and LePine met on November 28, 2011 to discuss the allegations noted in Franzone's email, which resulted in a three-day unpaid suspension of the plaintiff, which the plaintiff did not appeal, and her placement on a forty-five day preintensive evaluation plan to address her classroom management issues.  Soon after this meeting, Post observed two other concerning incidents involving the plaintiff and her students, and reported her observations to Franzone.  The administration again met with the plaintiff in December of 2011 to discuss and implement the preintensive evaluation plan.  The plaintiff was unhappy with the plan and was not cooperative in its implementation.

Following her report to Franzone, Ferrie requested and was granted a transfer out of the plaintiff's classroom in January of 2012.  Shortly thereafter, Lyon replaced Ferrie.  Lyon testified that she did not speak with Ferrie or anyone else about any prior incidents in the plaintiff's classroom.¹  Further, she testified to observing incidents similar to those observed by Ferrie, including the plaintiff yelling at students;  disallowing a student to use the bathroom, resulting in the student wetting himself;  raising her voice at Lyon;  becoming fixated on particular students until they “broke down”;  slamming textbooks on tables in front of students;  berating students in front of the class;  repeatedly pointing a pencil in a student's face in anger, and when the student began to cry, mocking the student in front of the class;  regularly making students late for their final period of the day;  and failing to comfort students and create a positive environment.  After witnessing several incidents, Lyon testified that she began to keep notes about the plaintiff's behavior, and on January 27, 2012, she gave Franzone a memorandum containing her observations of several incidents of the plaintiff's inappropriate interactions with her students between January 19, 2012 and January 27, 2012.  Both Franzone and Lyon testified that Lyon began note-taking and submitted the memorandum on her own accord.  Franzone and other school officials began to investigate Lyon's observations and placed the plaintiff on paid administrative leave pending the investigation effective January 31, 2012.  Franzone interviewed several witnesses identified by Lyon, who confirmed her observations.

After the completion of the investigation, Franzone drafted a February 7, 2012 memorandum to the plaintiff summarizing the most recent charges of misconduct, based on Lyon's and other witnesses' observations, as well as previously identified concerns, which Franzone concluded demonstrated a pattern of unacceptable behavior.  This memorandum further noted that several staff members reported concerning behavior to Franzone since March of 2011, that the plaintiff's actions involved almost a dozen students, and that Franzone's own observations validate these concerns and led her to conclude that the plaintiff was not maintaining appropriate standards of teacher behavior.

Prior to meeting about Franzone's February 7, 2012 memorandum, the plaintiff was granted a medical leave of absence, which ran concurrent with her administrative leave and ended on August 1, 2012.  On August 2, 2012, the plaintiff, Franzone, Post, LePine, and Connecticut Education Association representative Justin Zartman attended a meeting to discuss Franzone's February 7, 2012 memorandum.  The plaintiff presented a letter to Franzone during the meeting, which stated that the allegations contained in her memorandum were fabricated or misrepresented.  The plaintiff's verbal account of the events were somewhat contradictory to her letter, and she did not accept responsibility for any of the reported actions and did not acknowledge the validity of the administration's concerns.  She indicated that she would not change her behavior and that she did not have any plan or ideas for moving forward.  Following this meeting, Collins decided to proceed with the plaintiff's termination.

Finally, the panel made three ultimate findings of fact:  (1) “[t]he conduct of [the plaintiff] toward her students in 2011 and 2012, including physical touching in anger, yelling at them, slamming books down on their desks, refusing to let students go to the bathroom and publicly humiliating them violated school district policies and professional standards and had an adverse impact on the school system and students, including possible emotional harm to students”;  (2) “[t]he conduct of [the plaintiff] in interfering with student writing prompts by improperly requiring or allowing students to do over work performed had an adverse impact on the students and school district by undermining the educational value of the testing and evaluation process”;  and (3)[d]espite due notice that the conduct described [in (1) and (2) ] did not meet school district standards [the plaintiff] continued the harmful conduct, had no remorse about the misconduct, and clearly indicated to the school district that she has no intent to remediate her conduct or change it in any way to conform to the school system's norms and expectations.”  Based on the Findings of Fact, a majority of the panel concluded that the administration established, by a preponderance of evidence, that it had due and sufficient cause to terminate the plaintiff and recommended that her contract be terminated for that reason.

On April 22, 2013, the board held a special meeting for the purpose of deciding the matter of the plaintiff's termination, as well as an unrelated matter.  The minutes of the special meeting reveal the following facts.  The meeting was called to order at 8:35 p.m.;  a motion to go into executive session was passed;  and LePine, Franzone, the administration's counsel, Attorney Jeff Mogan, and the plaintiff's counsel, Attorney Adrienne DeLucca, were among those invited to attend the session.  During the executive session, those present discussed the panel's recommendation to terminate the plaintiff.  DeLucca left at 8:45 p.m., and Mogan, LePine, and Franzone left at 9:00 p.m. The board members continued their discussion of the panel's recommendation regarding the plaintiff, and discussed the other matter.  At 9:07 p.m., the board returned to open session, during which Mogan, DeLucca, LePine, and Franzone were present, and the board passed a unanimous motion to accept the panel's recommendation that the administration had due and sufficient cause to terminate the plaintiff.  The special meeting adjourned at 9:15 p.m. On the same day, the board rendered its written decision regarding the plaintiff's employment.  It adopted in total and incorporated by reference the panel's Findings of Fact, and accepted the panel's recommendation to terminate the plaintiff.²

On May 6, 2013, the plaintiff filed her complaint bringing the present administrative appeal against the board, and filed an appeal brief on July 31, 2014.  The defendant filed its appeal brief on September 30, 2014, and the plaintiff filed a reply brief on October 31, 2014.  The appeal was heard on September 2, 2015, and the parties submitted supplemental briefs on September 23, 2015.

DISCUSSION

A. Standard of Review

Teacher terminations in Connecticut are governed by General Statutes § 10–151(d).³  Pursuant to General Statutes § 10–151(e), a teacher may appeal a board's decision to terminate to the Superior Court.⁴  “When considering termination of a tenured teacher's employment contract, a school board acts, like an administrative agency, in a quasi-judicial capacity.”  (Internal quotation marks omitted.)  Rogers v. Board of Education, 252 Conn. 753, 760, 749 A.2d 1173 (2000).  “A school board has discretion to accept or reject a recommendation from an impartial hearing panel, though it is bound by the panel's findings of fact unless unsupported by the evidence.”  (Internal quotation marks omitted.)  Id.

“Judicial review of the school board's administrative decision follows established principles of administrative law.”  (Internal quotation marks omitted.)  Id., 761.  “On appeal from the final order of an administrative agency ․ the trial court does not try the case de novo.  It is not the function of the court to adjudicate the facts.  The court can do no more, on the factual questions presented, than to examine the record to determine whether the ultimate findings were supported ․ by substantial evidence.”  Norwich v. Norwich Fire Fighters, 173 Conn. 210, 214, 377 A.2d 290 (1977).  “The court's ultimate duty is only to decide whether, in light of the evidence, the [board] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion ․ Conclusions of law reached by the [board] must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically flow from such facts.”  Rogers v. Board of Education, supra, 761.

A court shall not substitute its judgment for that of the subject agency as to the weight of evidence on questions of fact and it shall affirm the agency's decision unless it finds that substantial rights of the appellant have been prejudiced.  General Statutes § 4–183(j).⁵  The scope of an administrative appeal is confined to the record.  General Statutes § 4–183(i).⁶  “[E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred ․ [The substantial evidence rule] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency ․ and to provide a more restrictive standard of review ․” (Internal quotation marks omitted.)  Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588, 628 A.2d 1286 (1993).  “The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached.”  Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979) (citing Conley v. Board of Education, 143 Conn. 488, 492, 123 A.2d 747 (1956)).

As a preliminary matter, the court must determine whether the plaintiff in the present case is aggrieved by the board's decision.  See General Statutes § 10–151(e).  “Proof of aggrievement is an essential prerequisite to the court's jurisdiction of the subject matter of the appeal.”  Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978).  “[T]he question of aggrievement is a jurisdictional one and claims of aggrievement present an issue of fact for the determination of the trial court with the burden of proving aggrievement resting upon the plaintiffs who have alleged it.”  Nader v. Altermatt, 166 Conn. 43, 59, 347 A.2d 89 (1974).  The plaintiff, as a tenured teacher, has a constitutionally protected property interest in her employment;  see Lee v. Board of Education, 181 Conn. 69, 71–74, 434 A.2d 333 (1980);  and therefore has standing to bring this appeal.

B. Hearsay Evidence

First, the plaintiff alleges that she is aggrieved by the decision of the board because the panel should not have considered inadmissible hearsay evidence when making its Findings of Fact. While the plaintiff concedes that administrative proceedings are not bound by the rules of evidence, she argues that the primary evidence in support of termination in the present case consisted of hearsay statements.  Specifically, the panel should not have allowed Franzone to testify as to statements made by others who did not testify because those statements were hearsay.  Further, while the Chairman of the Panel, Lawrence Foy, ruled that some of the hearsay evidence was impermissible for the truth of the matter asserted, a majority of the panel, including Foy, ignored this ruling when making its decision.  Her reliance on this sua sponte ruling is one of the reasons why she did not object to the hearsay testimony during the termination hearings.  Finally, the plaintiff contends that Franzone, Ferrie, and Lyon were not credible witnesses.

In response, the board argues that the plaintiff failed to object to the evidence she now claims the panel should not have considered.  Further, the panel's consideration of the contested evidence was appropriate because some of the evidence fell within exceptions to the hearsay rule, the subject hearsay statements were reliable and probative as they were consistent with direct testimony regarding the plaintiff's conduct, and Franzone's credibility as a witness was already determined by the panel.  Finally, challenged evidence is not necessary to the panel's ultimate findings and the board's conclusion that there was due and sufficient cause for the plaintiff's termination.

“[A]dministrative tribunals are not strictly bound by the rules of evidence and ․ they may consider evidence which would normally be incompetent in a judicial proceeding, as long as the evidence is reliable and probative.”  Tomlin v. Personnel Appeal Board, 177 Conn. 344, 348, 416 A.2d 1205 (1979).  “There is no prohibition against the admission of hearsay evidence in teacher termination proceedings.”  Rogers v. Board of Education, supra, 252 Conn. 766.  “A party to an administrative proceeding cannot be allowed to participate fully at hearings and then, on appeal, raise claims that were not asserted before the board.  We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.”  (Internal quotation marks omitted.)  Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 632, 613 A.2d 739 (1992).  Further, “[t]he credibility of witnesses and the determination of issues of fact are matters within [the administrative agency's] province.”  (Internal quotation marks omitted.)  Conley v. Board of Education, 143 Conn. 488, 492, 123 A.2d 747 (1956).

“The jurisdiction and discretion to determine what ․ may be [due and sufficient] cause rests in the hands of the school authorities ․ That determination must conform, of course, to the meaning of other due and sufficient cause.  General Statutes § 10–151(d).  We have treated that phrase as equivalent to good cause ․ Good cause includes any ground which is put forward by the [school] committee in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the committee's task of building up and maintaining an efficient school system.”  (Citations omitted;  internal quotation marks omitted.)  Rogers v. Board of Education, supra, 252 Conn. 769.  “[T]he decision to terminate must be reached after 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 ․ Thus, in deciding whether particular conduct constitutes due and sufficient cause for termination, the impact of that conduct upon the operation of the school is a significant consideration.”  (Citation omitted;  footnote omitted;  internal quotation marks omitted.)  Rado v. Board of Education, 216 Conn. 541, 554, 583 A.2d 102 (1990).

In the present case, the court holds that the panel did not improperly consider hearsay evidence in making its Findings of Fact. It is well-established that an administrative agency, such as the panel, is not bound by the rules of evidence or procedure and may consider hearsay evidence as long as it is reliable and probative.  In its discussion, the panel addressed whether it could consider hearsay evidence in making its decision.  It decided that the present case is not one where “the critical or primary evidence in support of a termination decision is hearsay evidence” because (1) the ultimate factual conclusions are fully supported by direct testimony;  (2) the Connecticut Supreme Court has held that there is no prohibition against the admission of hearsay evidence in teacher termination proceedings;  (3) the facts that gave rise to the plaintiff's suspensions, which were either not grieved or not appealed, can be relied upon as uncontested;  (4) the pieces of hearsay evidence that is included in the Findings of Fact are included therein because the panel found them to be reliable and probative, and that they corroborate direct testimony and are consistent with a pattern of conduct demonstrated by the plaintiff;  (5) some of the pieces of hearsay evidence may fall under exceptions to the hearsay rule;  and (6) any hearsay evidence that does not fit any of the preceding categories was not relied upon by the panel in making its decision.

The court holds that the panel correctly applied the law regarding its use of hearsay evidence to the facts of the present case in determining that their consideration of the subject hearsay evidence was proper because it was not the primary evidence supporting termination.  The direct testimony and other evidence put forth by the administration provided the panel with grounds for termination that are rational, reasonable, and relevant to the administration's task of building up and maintaining an efficient school system.  The administration provided direct testimony from Franzone, Ferrie, Lyons, and Post about their observations of the plaintiff's inappropriate conduct toward her students in her classroom.  The plaintiff's conduct, based on the witnesses' direct observations, was deemed to be unacceptable and below teaching standards, and resulted in discipline.  The hearsay evidence served to corroborate these observations and to reinforce a pattern of inappropriate behavior revealed by the witnesses' observations.  Furthermore, the panel considered the plaintiff's lack of recognition that her conduct was wrong, her denial of almost all misconduct, and her lack of remorse or willingness to alter her conduct as important factors in their recommendation to terminate.  Direct testimony of Franzone, Post, and LePine, as well as other documentary evidence demonstrate the plaintiff's repeated misconduct, lack of remorse, and unwillingness to change misconduct, and contributed to the panel's decision to terminate, apart from the hearsay evidence.

Further, the record demonstrates that the plaintiff did not object to the admission of the hearsay evidence during the termination hearings.  While the plaintiff argues that she relied on Foy's statement that the subject hearsay evidence would not be considered for the truth of the matter asserted, she presents no evidence demonstrating her reliance, nor any authority for the propositions that the panel members were bound by Foy's statement and that a party's due process rights are violated when it bases its litigation strategies on a panel member's statement regarding how he intends to weigh evidence.

Finally, while the plaintiff attacks Franzone's, Ferrie's, and Lyon's credibility as witnesses on appeal, the panel found the administration's testimony to be an accurate reflection of reality.  As the determination of the credibility of witnesses and the finding of facts are properly within the province of the agency, and as the panel explicitly determined that the administration's testimonial evidence was credible, the court refrains from determining the credibility of these, or any other, witnesses on appeal.  For these reasons, the court holds that the board did not act unreasonably, arbitrarily, illegally, or in abuse of its discretion when it accepted the panel's Findings of Fact in total and the recommendation to terminate the plaintiff for due and sufficient cause.

C. Dual Representation

Next, the plaintiff alleges that it was illegal and a violation of the plaintiff's due process rights for the board to have been represented by the same attorney who represented the administration during the § 10–151 hearings.  Specifically, the plaintiff argues that any and all communications by Mogan to the board were in violation of the plaintiff's rights, especially any ex parte communications.  Further, the plaintiff argues that Mogan's dual representation violated the Connecticut Rules of Professional Conduct's conflict of interest rules.  The plaintiff concedes that there exists no Connecticut law addressing this issue, and deems it a case of first impression.

Finally, while the plaintiff argues that Mogan's dual representation is a per se violation of her due process rights, she has alternatively proven actual bias evidenced by fifteen minutes of ex parte communications between Mogan and the board, which resulted in her termination.

In response, the board argues that its decision to terminate should not be reversed because the plaintiff has not demonstrated that she was substantially prejudiced by Mogan's dual representation.  Specifically, the board argues that under Connecticut law, there is no prohibition against an attorney advising both the board and the administration.  Further, it argues that the case law cited by the plaintiff does not support a per se violation of unfairness.  Finally, the board argues that the plaintiff makes this argument on principal alone because she has not produced any evidence of prejudice, which must be shown in order to set aside an administrative decision.

There is no Connecticut law that directly addresses the issue of whether an attorney can represent the administration in a teacher termination hearing before a tripartite panel and then later represent a board of education in the decision phase of the termination process.  Nonetheless, “[e]ven if [the strong presumption of regularity in the proceedings of a public body] is rebutted ․ not all procedural irregularities require a reviewing court to set aside an administrative decision;  material prejudice to the complaining party must be shown.”  (Internal quotation marks omitted.)  Murach v. Planning & Zoning Commission, 196 Conn. 192, 205, 491 A.2d 1058 (1985).

In the present case, the plaintiff has failed to demonstrate that the practice of dual representation is prohibited and that she has been materially prejudiced by Mogan's dual representation.  While it may not be the best practice for the same attorney to represent an administration before a tripartite panel and then advise a board of education during the termination hearing, the plaintiff has not provided any authority prohibiting such a practice.  Furthermore, even if this practice were improper, the plaintiff would still have to demonstrate the material prejudice that the procedural irregularity has caused her.  Here, the plaintiff did not request a record of the executive session during which she argues influential ex parte communications occurred between the board and Mogan.  Even if ex parte communications occurred, the board was bound by the panel's Findings of Fact and had only the narrow discretion to adopt or reject the panel's recommendations.  This court is bound by the administrative record and cannot find that the plaintiff was materially prejudiced by Mogan's dual representation when the record contains no evidence demonstrating what was said during the executive session.  Without evidence that Mogan's dual representation materially prejudiced the plaintiff, the court holds that the board did not act unreasonably, arbitrarily, illegally, or in abuse of its discretion by adopting the panel's Findings of Fact and recommendation to terminate the plaintiff for due and sufficient cause, despite Mogan's dual representation.

D. Witnesses in Executive Session

Further, the plaintiff alleges that it was also illegal for the board to have invited key witnesses, Franzone and LePine, into the executive session.  She contends that the only reason that Franzone and LePine could have legally attended the executive session was to present testimony or opinion pertinent to the matter before the board, pursuant to the Connecticut Freedom of Information Act (FOIA), which they were prohibited from doing at that time, in accordance with § 10–151.  Additionally, the plaintiff argues that the board violated the Connecticut FOIA by allowing Franzone and LePine to remain in the executive session during times when they were not providing testimony or opinions.  Finally, the plaintiff argues that although she did not request discovery of what was said during the executive session, she would not have been able to present such evidence on appeal, pursuant to § 10–151.

In response, the board argues that the plaintiff failed to object to the procedures utilized by the board, namely, allowing Franzone and LePine into the executive session.⁷

Further, it contends that this claim is actually for a violation of the Connecticut FOIA, and not one for a violation of due process, and that the plaintiff has failed to exhaust her administrative remedies under the Connecticut FOIA. Finally, the board argues that the plaintiff has not proven prejudice:  it was bound by the panel's findings during the executive session, so the presence of Franzone and LePine could not have influenced the board's decision to terminate the plaintiff.

The Connecticut Freedom of Information Act (FOIA) limits who may attend an executive session and provides for specific administrative remedies for violations of the act.  General Statutes § 1–231; ⁸  General Statutes § 1–260(b).⁹  Concurrently, however, the scope of an administrative appeal is limited to the contents of the record.  General Statutes § 4–183(i).

In the present case, there is no evidence in the record demonstrating what was said during the executive session.  While the plaintiff may have a remedy under the Connecticut FOIA, the court in the present appeal can only consider what is contained in the record before it.  The minutes of the executive session following the hearing before the board state that the meeting was called to order at 8:35 p.m., and that LePine, Franzone, Mogan, and DeLucca were invited to attend the executive session.  During the executive session, the recommendation of the panel to terminate the plaintiff was discussed.  DeLucca left at 8:45 p.m., and Mogan, LePine, and Franzone left at 9:00 p.m. The board members continued their discussions of the matter before it, and at 9:07 p.m., the board returned to open session and unanimously accepted the panel's recommendation that the administration had due and sufficient cause to terminate the plaintiff.  The special meeting adjourned at 9:15 p.m. This evidence does not indicate what Franzone or LePine stated, if anything, during the executive session, nor does it indicate the contents of the board's discussion, and therefore, it does not demonstrate how the plaintiff was materially prejudiced by what was allegedly said during the executive session.  While the plaintiff argues that she would not have been able to present discovery of what was said during the executive session to the court pursuant to § 10–151, she would have been permitted to present evidence limited to her alleged procedural irregularities, pursuant to § 4–183(i):  “If alleged irregularities in procedure before the agency are not shown in the record ․ proof limited thereto may be taken in the court.”  Without this evidence, the court holds that the board did not act unreasonably, arbitrarily, illegally, or in abuse of its discretion when it accepted the panel's Findings of Fact and recommendation to terminate the plaintiff for due and sufficient cause, despite Franzone's and LePine's presences in the executive session.

E. Length of Deliberation

Finally, the plaintiff alleges that the board abused their statutory authority by terminating the plaintiff's employment contract without meaningful deliberation.  In particular, she argues that the board only spent at most seven minutes reading the panel's Findings of Fact and Recommendation and deliberating their decision, based on the executive session minutes.  In response, the defendant argues that there is no proscribed period of time for deliberation and, even if they deliberated for a short amount of time, the board, at that time, was acting as an employer deciding only whether to accept or reject the panel's recommendations.

As discussed above, the scope of an administrative appeal is confined to the record.  General Statutes § 4–183(i).  In the present case, there is nothing in the record that indicates when the members of the board received the panel's Findings of Fact and Recommendation.  Specifically, there is no evidence in the record demonstrating that the board members received the panel's Findings of Fact and Recommendation for the first time at the beginning of the hearing.¹⁰  Further, the plaintiff has not provided the court with authority supporting her argument that seven minutes is too short of a time period for meaningful deliberation.  Without such evidence or authority, the court holds that the board did not act unreasonably, arbitrarily, illegally, or in abuse of its discretion by accepting the panel's Findings of Fact and recommending termination of the plaintiff's contract for due and sufficient cause.

ORDER

For the foregoing reasons, the plaintiff's appeal is denied and the board's decision is affirmed in its entirety.

Devine, J.

FOOTNOTES

FN1. In its discussion, the majority of the panel members questioned whether this testimony was accurate or truthful;  however, it nonetheless found the administration's testimony to be an accurate reflection of reality..  FN1. In its discussion, the majority of the panel members questioned whether this testimony was accurate or truthful;  however, it nonetheless found the administration's testimony to be an accurate reflection of reality.

FN2. In its Findings of Fact and Recommendation, the panel noted that in order to terminate the plaintiff, the administration had to prove that the plaintiff was either inefficient, incompetent, or that they had other due and sufficient cause to terminate.  While the panel found that the administration established by a preponderance of the evidence that it had due and sufficient cause to terminate the plaintiff, it also found that the administration was unable to prove that the plaintiff's alleged inefficiency or incompetence was based on the evaluation guidelines contained in General Statutes § 10–151b.  The board adopted the panel's conclusion that the Findings of Fact constitute other due and sufficient cause to terminate the plaintiff;  however, it rejected the panel's conclusion that the Findings of Fact did not constitute inefficiency or incompetence to terminate the plaintiff, without further explanation.  On appeal, the plaintiff does not specifically challenge, and the court therefore does not address, the board's conclusion to reject the panel's recommendation regarding inefficiency or incompetence;  rather, she challenges the board's adoption of the panel's Findings of Fact and Recommendation because of its alleged reliance on hearsay evidence.  Furthermore, “[a] school board has discretion to accept or reject a recommendation from an impartial hearing panel, though it is bound by the panel's findings of fact unless unsupported by the evidence ․ The board is bound by the panel's findings of fact, but not by its legal conclusions or by its recommendations.”  (Internal quotation marks omitted.)  Sekor v. Board of Education, 240 Conn. 119, 125, 689 A.2d 1112 (1997)..  FN2. In its Findings of Fact and Recommendation, the panel noted that in order to terminate the plaintiff, the administration had to prove that the plaintiff was either inefficient, incompetent, or that they had other due and sufficient cause to terminate.  While the panel found that the administration established by a preponderance of the evidence that it had due and sufficient cause to terminate the plaintiff, it also found that the administration was unable to prove that the plaintiff's alleged inefficiency or incompetence was based on the evaluation guidelines contained in General Statutes § 10–151b.  The board adopted the panel's conclusion that the Findings of Fact constitute other due and sufficient cause to terminate the plaintiff;  however, it rejected the panel's conclusion that the Findings of Fact did not constitute inefficiency or incompetence to terminate the plaintiff, without further explanation.  On appeal, the plaintiff does not specifically challenge, and the court therefore does not address, the board's conclusion to reject the panel's recommendation regarding inefficiency or incompetence;  rather, she challenges the board's adoption of the panel's Findings of Fact and Recommendation because of its alleged reliance on hearsay evidence.  Furthermore, “[a] school board has discretion to accept or reject a recommendation from an impartial hearing panel, though it is bound by the panel's findings of fact unless unsupported by the evidence ․ The board is bound by the panel's findings of fact, but not by its legal conclusions or by its recommendations.”  (Internal quotation marks omitted.)  Sekor v. Board of Education, 240 Conn. 119, 125, 689 A.2d 1112 (1997).

FN3. General Statutes § 10–151(d) provides, in pertinent part, the following:  “The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for one or more of the following reasons:  (1) Inefficiency, incompetence or ineffectiveness, provided, if a teacher is notified on or after July 1, 2014, that termination is under consideration due to incompetence or ineffectiveness, the determination of incompetence or ineffectiveness is based on evaluation of the teacher using teacher evaluation guidelines established pursuant to section 10–151b;  ․ or (6) other due and sufficient cause ․ Prior to terminating a contract, the superintendent shall give the teacher concerned a written notice that termination of such teacher's contract is under consideration and give such teacher a statement of the reasons for such consideration of termination.  Not later than ten calendar days after receipt of written notice by the superintendent that contract termination is under consideration, such teacher may file with the local or regional board of education a written request for a hearing.  A board of education may designate a subcommittee of three or more board members to conduct hearings and submit written findings and recommendations to the board for final disposition in the case of teachers whose contracts are terminated.  Such hearing shall commence not later than fifteen calendar days after receipt of such request, unless the parties mutually agree to an extension, not to exceed fifteen calendar days (A) before the board of education or a subcommittee of the board, or (B) if indicated in such request or if designated by the board before an impartial hearing officer chosen by the teacher and the superintendent ․ When the reason for termination is incompetence or ineffectiveness, the hearing shall (i) address the question of whether the performance evaluation ratings of the teacher were determined in good faith in accordance with the program adopted by the local or regional board of education pursuant to section 10–151b and were reasonable in light of the evidence presented, and (ii) be limited to twelve total hours of evidence and testimony, with each side allowed not more than six hours to present evidence and testimony except the board, subcommittee of the board or impartial hearing officer may extend the time period for evidence and testimony at the hearing when good cause is shown.  Not later than forty-five calendar days after receipt of the request for a hearing, the subcommittee of the board or hearing officer, unless the parties mutually agree to an extension not to exceed fifteen calendar days, shall submit written findings and a recommendation to the board of education as to the disposition of the charges against the teacher and shall send a copy of such findings and recommendation to the teacher.  The board of education shall give the teacher concerned its written decision not later than fifteen calendar days after receipt of the written recommendation of the subcommittee or hearing officer ․ If the hearing is before the board of education, the board shall render its decision not later than fifteen calendar days after the close of such hearing and shall send a copy of its decision to the teacher.  The hearing shall be public if the teacher so requests or the board, subcommittee or hearing officer so designates.  The teacher concerned shall have the right to appear with counsel at the hearing, whether public or private.  A copy of a transcript of the proceedings of the hearing shall be furnished by the board of education, upon written request by the teacher within fifteen days after the board's decision, provided the teacher shall assume the cost of any such copy ․”.  FN3. General Statutes § 10–151(d) provides, in pertinent part, the following:  “The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for one or more of the following reasons:  (1) Inefficiency, incompetence or ineffectiveness, provided, if a teacher is notified on or after July 1, 2014, that termination is under consideration due to incompetence or ineffectiveness, the determination of incompetence or ineffectiveness is based on evaluation of the teacher using teacher evaluation guidelines established pursuant to section 10–151b;  ․ or (6) other due and sufficient cause ․ Prior to terminating a contract, the superintendent shall give the teacher concerned a written notice that termination of such teacher's contract is under consideration and give such teacher a statement of the reasons for such consideration of termination.  Not later than ten calendar days after receipt of written notice by the superintendent that contract termination is under consideration, such teacher may file with the local or regional board of education a written request for a hearing.  A board of education may designate a subcommittee of three or more board members to conduct hearings and submit written findings and recommendations to the board for final disposition in the case of teachers whose contracts are terminated.  Such hearing shall commence not later than fifteen calendar days after receipt of such request, unless the parties mutually agree to an extension, not to exceed fifteen calendar days (A) before the board of education or a subcommittee of the board, or (B) if indicated in such request or if designated by the board before an impartial hearing officer chosen by the teacher and the superintendent ․ When the reason for termination is incompetence or ineffectiveness, the hearing shall (i) address the question of whether the performance evaluation ratings of the teacher were determined in good faith in accordance with the program adopted by the local or regional board of education pursuant to section 10–151b and were reasonable in light of the evidence presented, and (ii) be limited to twelve total hours of evidence and testimony, with each side allowed not more than six hours to present evidence and testimony except the board, subcommittee of the board or impartial hearing officer may extend the time period for evidence and testimony at the hearing when good cause is shown.  Not later than forty-five calendar days after receipt of the request for a hearing, the subcommittee of the board or hearing officer, unless the parties mutually agree to an extension not to exceed fifteen calendar days, shall submit written findings and a recommendation to the board of education as to the disposition of the charges against the teacher and shall send a copy of such findings and recommendation to the teacher.  The board of education shall give the teacher concerned its written decision not later than fifteen calendar days after receipt of the written recommendation of the subcommittee or hearing officer ․ If the hearing is before the board of education, the board shall render its decision not later than fifteen calendar days after the close of such hearing and shall send a copy of its decision to the teacher.  The hearing shall be public if the teacher so requests or the board, subcommittee or hearing officer so designates.  The teacher concerned shall have the right to appear with counsel at the hearing, whether public or private.  A copy of a transcript of the proceedings of the hearing shall be furnished by the board of education, upon written request by the teacher within fifteen days after the board's decision, provided the teacher shall assume the cost of any such copy ․”

FN4. General Statutes § 10–151(e) provides the following:  “(e) Any teacher aggrieved by the decision of a board of education after a hearing as provided in subsection (d) of this section may appeal therefrom, not later than thirty calendar days after such decision, to the Superior Court.  Such appeal shall be made returnable to said court in the same manner as is prescribed for civil actions brought to said court.  Any such appeal shall be a privileged case to be heard by the court as soon after the return day as is practicable.  The board of education shall file with the court a copy of the complete transcript of the proceedings of the hearing and the minutes of board of education meetings relating to such termination, including the vote of the board on the termination, together with such other documents, or certified copies thereof, as shall constitute the record of the case.  The court, upon such appeal, shall review the proceedings of such hearing.  The court, upon such appeal and hearing thereon, may affirm or reverse the decision appealed from in accordance with subsection (j) of section 4–183.  Costs shall not be allowed against the board of education unless it appears to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.”.  FN4. General Statutes § 10–151(e) provides the following:  “(e) Any teacher aggrieved by the decision of a board of education after a hearing as provided in subsection (d) of this section may appeal therefrom, not later than thirty calendar days after such decision, to the Superior Court.  Such appeal shall be made returnable to said court in the same manner as is prescribed for civil actions brought to said court.  Any such appeal shall be a privileged case to be heard by the court as soon after the return day as is practicable.  The board of education shall file with the court a copy of the complete transcript of the proceedings of the hearing and the minutes of board of education meetings relating to such termination, including the vote of the board on the termination, together with such other documents, or certified copies thereof, as shall constitute the record of the case.  The court, upon such appeal, shall review the proceedings of such hearing.  The court, upon such appeal and hearing thereon, may affirm or reverse the decision appealed from in accordance with subsection (j) of section 4–183.  Costs shall not be allowed against the board of education unless it appears to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.”

FN5. General Statutes § 4–183(j) provides, in pertinent part, the following:  “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.  The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:  (1) In violation of constitutional or statutory provisions;  (2) in excess of the statutory authority of the agency;  (3) made upon unlawful procedure;  (4) affected by other error of law;  (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;  or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.  If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings ․”.  FN5. General Statutes § 4–183(j) provides, in pertinent part, the following:  “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.  The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:  (1) In violation of constitutional or statutory provisions;  (2) in excess of the statutory authority of the agency;  (3) made upon unlawful procedure;  (4) affected by other error of law;  (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;  or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.  If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings ․”

FN6. General Statutes § 4–183(i) provides the following:  “The appeal shall be conducted by the court without a jury and shall be confined to the record.  If alleged irregularities in procedure before the agency are not shown in the record or if facts necessary to establish aggrievement are not shown in the record, proof limited thereto may be taken in the court.  The court, upon request, shall hear oral argument and receive written briefs.”.  FN6. General Statutes § 4–183(i) provides the following:  “The appeal shall be conducted by the court without a jury and shall be confined to the record.  If alleged irregularities in procedure before the agency are not shown in the record or if facts necessary to establish aggrievement are not shown in the record, proof limited thereto may be taken in the court.  The court, upon request, shall hear oral argument and receive written briefs.”

FN7. The plaintiff's complaint alleges that she objected to Mogan's attendance in executive session;  however, this objection was not in the record..  FN7. The plaintiff's complaint alleges that she objected to Mogan's attendance in executive session;  however, this objection was not in the record.

FN8. General Statutes § 1–231 provides, in pertinent part, the following:  “(a) At an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body provided that such persons' attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion and, provided further, that the minutes of such executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed by such agency.”.  FN8. General Statutes § 1–231 provides, in pertinent part, the following:  “(a) At an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body provided that such persons' attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion and, provided further, that the minutes of such executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed by such agency.”

FN9. General Statutes § 1–206 provides, in pertinent part, the following:  “(b)(1) Any person ․ wrongfully denied ․ any ․ right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission.  A notice of appeal shall be filed not later than thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed not later than thirty days after the person filing the appeal receives notice in fact that such meeting was held ․”.  FN9. General Statutes § 1–206 provides, in pertinent part, the following:  “(b)(1) Any person ․ wrongfully denied ․ any ․ right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission.  A notice of appeal shall be filed not later than thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed not later than thirty days after the person filing the appeal receives notice in fact that such meeting was held ․”

FN10. While the plaintiff's complaint alleges that as the panel's materials were being distributed to the members, they asked questions like, “how could they be expected to read and process a forty-eight page document and render a decision that same night,” there is no evidence in the record to support this allegation..  FN10. While the plaintiff's complaint alleges that as the panel's materials were being distributed to the members, they asked questions like, “how could they be expected to read and process a forty-eight page document and render a decision that same night,” there is no evidence in the record to support this allegation.

Devine, James J., J.