Perrino v. R.I. Bd. of Regents for Elementary & Secondary Educ.
| Decision Date | 02 August 2011 |
| Docket Number | C.A. No. PC 10-4247 |
| Parties | PAUL PERRINO v. THE RHODE ISLAND BOARD OF REGENTS FOR ELEMENTARY AND SECONDARY EDUCATION and THE PROVIDENCE SCHOOL BOARD |
| Court | Rhode Island Superior Court |
DARIGAN, J. Appellant Paul Perrino ("Appellant" or "Perrino") appeals from a decision of the Board of Regents for Elementary and Secondary Education ("Board of Regents"). The Board of Regent's decision sustained the Providence School Board's ("School Board") termination of Appellant from his tenured teaching position at Cooley Health and Science High School. Jurisdiction is pursuant to G.L. 1956 § 42-35-15, G.L. 1956 § 16-39-4, and G.L. 1956 § 16-13-4.
Appellant was a physical education teacher with the Providence School Department beginning in 1980. On December 6, 7, 8 and 9, 2005, he called in sick to work. During his absence, allegations arose from an anonymous source that accused Appellant of numerous school policy violations, including calling in sick during the December dates to attend a youth football tournament in Arizona and using a school computer to look at allegedly pornographic images.
Upon learning of these allegations, Donald Zimmerman ("Zimmerman"), the Senior Executive Director of Human Resources of the Providence School District ("School District"), began to investigate the claims. Appellant admitted to Zimmerman that he had been in Tucson, Arizona for the youth football championship tournament, and thus, had misrepresented that he was sick. Appellant also admitted to Zimmerman that he did not leave any lesson plans or written materials for the substitute teacher; he left only a grade book.
Zimmerman also investigated the allegations that Appellant was accessing inappropriate or pornographic material on the school computer. During his investigation, the Chief Technology Officer for the School District found pornographic or inappropriate material within the temporary internet folder of the P.Perrino password protected school computer account belonging to Appellant. This material was accessed between the periods of October 27, 2005 through December 2, 2005. The School District then hired Thomas Galligan ("Galligan") of Electronic Evidence Recovery, to perform forensic analysis on the computer. Galligan identified twelve dates on which the inappropriate material was accessed. Appellant's expert witness, Dr. Fay-Wolf, agreed with these dates.1
Subsequently, on December 19, 2005, the School Board voted to terminate Appellant's employment as a teacher. It explained that it premised this action on the following: Perrino's misrepresentation that he was sick in December when he attended the youth football game in Arizona; his failure to leave a lesson plan for the substitute teacher; and his use of a school computer to access pornographic and obscene materials.
The School Board then held an evidentiary hearing on August 28, 2006. During this hearing, the School Board permitted Appellant to cross examine the School Board's witnesses, present his own witnesses and present evidence in his defense. The School Board voted to sustain Appellant's termination.
Following this decision, Appellant filed a written appeal with the Commissioner of Education on September 8, 2006. (Board of Regents Ex. 2, Decision of the Commissioner of Education, Dec. 1, 2008 "Commissioner Decision" at 2.) After several days of de novo hearings, the Commissioner issued his decision on December 1, 2008. In his decision, the Commissioner found that the School Board had proven each factual allegation against Appellant by a preponderance of the evidence. Id. at 9. Specifically, the Commissioner found that undisputed evidence existed that Appellant was not entitled to sick leave under his contract to attend the youth football tournament in Arizona. Id. He concluded that the record clearly establishes that Appellant failed to leave lesson plans during his absence as required in his contract. Id. Concerning that issue, the Commissioner explained that any existence of a generic lesson plan is insufficient proof of the existence of an actual lesson plan left by Appellant, especially considering the failure to produce the document at the hearing and Appellant's lack of testimony about the plan. Id.
Furthermore, the Commissioner found that it is undisputed that the computer in the health room was used to access inappropriate material on approximately twelve dates between November 27 and November 30, 2005. Id. The Commissioner noted that all of these incidences occurred while the P.Perrino password protected account was logged into the computer. He found that the preponderance of the evidence does not lead to aconclusion that another person accessed the material while logged onto Appellant's account. Id. In support of his conclusion, the Commissioner identified the numerous contradictions and inconsistencies within Appellant's testimony. Thus, he found that Appellant's denial that he accessed the material was insufficient to rebut the substantial evidence that he was the user who accessed pornographic websites. Id. The Commissioner, therefore, concluded that Appellant violated the Internet Acceptable Use Policy by intentionally accessing pornographic websites. Id.
Despite this conclusion, the Commissioner rejected the School Board's finding that Appellant also violated his statutory duty to inculcate principles of morality and virtue in students under his charge because, he found, no evidence exists that students were involved in or observed Appellant accessing this material. The Commissioner thus concluded that as a result of the three violations and their substantial nature, the School Board substantiated good and just cause for termination, notwithstanding Appellant's lack of prior disciplinary history. Id. at 11-12.
Perrino appealed the Commissioner's decision to the Board of Regents for Elementary and Secondary Education. In its decision, the Board of Regents found that the facts set forth within the Hearing Officer's decision are controlling because they are supported by the record. (Board of Regents Ex. 1, Decision of the Board of Regents, July 1, 2010, at 1.) The Board of Regents explained that the Commissioner's decision should not be disturbed by the Board of Regents because it is not "patently arbitrary, capricious, or unfair." Id. Accordingly, it sustained the Commissioner's decision on July 1, 2010.
Perrino appealed the Board of Regent's decision to this Court on July 20, 2010. Therein, Appellant maintains that sufficient good and just cause does not exist to supporthis termination. Additionally, Appellant avers that termination was not an appropriate sanction in light of the circumstances. Perrino further argues that his termination is not effective until the 2006-2007 academic year because his termination was prior to the statutorily mandated March 1 deadline.
In response, the School Board contends that the Board of Regent's decision is not arbitrary and capricious because the School Board proved the violations by a preponderance of the evidence. The School Board also maintains that termination was indeed the appropriate sanction given the substantial violations. Finally, it opines that his termination date is not in violation of the March 1 deadline under a reasonable interpretation of the Teacher's Tenure Act.
Section 16-39-4, governing the dismissal of tenured teachers, allows any party aggrieved by a decision of the Board to obtain judicial review of that decision in accordance with "chapter 35 of title 42," the Rhode Island Administrative Procedures Act. Section 42-35-15(g) of the APA states:
In reviewing an agency decision, this Court is limited to an examination of the certified record in deciding whether the agency's decision is supported by legally competent evidence. Nickerson v. Reitsma, 853 A.2d 1202, 1205 (R.I. 2004) (citations omitted). Legally competent evidence has been defined as "'such relevant evidence that a reasonable mind might accept as adequate to support a conclusion and means more than a scintilla but less than a preponderance.'" Elias-Clavet v. Rhode Island Dep't of Employment and Training Bd. of Review, 15 A.3d 1008, 1013 (R.I. 2011) (quoting Foster-Glocester Regional Sch. Comm. v. Board of Review, 85 A.2d 1008, 1012 (R.I. 2005)). This Court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. Interstate Navigation Co. v. Division of Pub. Utils. & Carriers of R.I., 824 A.2d 1282, 1286 (R.I. 2003) (citations omitted). Thus, "if 'competent evidence exists in the record, the Superior Court is required to uphold the agency's conclusions.'" Autobody Ass'n of R.I. v. Rhode Island Dep't of Bus. Regulation, et al., 996 A.2d 91, 95 (R.I. 2010) (quoting Rhode Island Pub. Telecommunications Auth. v. Rhode Island State Labor Relations Bd., 650 A.2d 479, 485 (R.I. 1994)).
The Superior Court's power to order a remand under § 42-35-15 is "merely declaratory of the inherent power of the court to remand, in a proper case, to correct deficiencies in the record." Champlin's Realty Assocs. v. Tikoian, ...
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