Opinion
C.A. 2014-2223
07-14-2016
KELLY McKENNEY, Petitioner, v. BARRINGTON SCHOOL COMMITTEE, and THE RHODE ISLAND BOARD OF EDUCATION FOR ELEMENTARY AND SECONDARY EDUCATION, Respondents.
For Plaintiff: Jeffrey D. Sowa, Esq. For Defendant: Sara A. Rapport, Esq.; Paul V. Sullivan, Esq.
Providence County Superior Court
For Plaintiff: Jeffrey D. Sowa, Esq.
For Defendant: Sara A. Rapport, Esq.; Paul V. Sullivan, Esq.
DECISION
LICHT, J.
Kelly McKenney (Ms. McKenney) seeks judicial review of the April 14, 2014 decision of the Board of Education (Board) which upheld the Barrington School Committee's (Committee) decision to terminate Ms. McKenney's tenured employment. The Court exercises jurisdiction pursuant to G.L. 1956 §§ 42-35-15, et seq. For the reasons set forth herein, this Court affirms the Board's decision.
I
Facts and Travel
In September of 2002, Ms. McKenney was employed as a teacher by the Barrington School Department. She spent the next ten years in the Barrington School District teaching United States and World History courses to high school students at the Barrington High School in Barrington, Rhode Island (High School). See Tr. 5:20-24, Aug. 1, 2012. She became tenured at the High School and received top evaluations for her teaching and incurred no disciplinary action. See id. at 8:8-19.
In late January of 2011, Ms. McKenney disseminated a study guide to her students outlining the material that would be tested on her midterm examination. See id. at 6:10-24. Ms. McKenney was confronted by the school's administrators indicating that study guides are a part of the High School's professional learning community (PLC) and therefore should be the product of a collaborative effort of the entire History Department. Then on June 17, 2011, Ms. McKenney allegedly directed two of her students, via the use of both verbal and nonverbal communication, to the correct answers on a final retake examination-conduct alleged to be in violation of Part 3 of the Regulations Governing the Certification of Educators in Rhode Island, which has been adopted by the Board of Elementary and Secondary Education. See Tr. 7:5-24, Aug. 1, 2012. Such conduct was allegedly observed by Nicole Varone (Ms. Varone), the Assistant Principal at the High School, and Lindsey Wengloski (Ms. Wengloski), a teacher at the High School. See Tr. 7:5-24, Aug. 1, 2012. The reported misconduct was also confirmed by the two students. Id. While partaking in such conduct, Ms. McKenney allegedly left her anthropology students in another portion of the building-unattended and without the appropriate supervision-and therefore further violated the High School's policies. Id. at 99:15-24.
Part 3. Rhode Island Professional Educator Standards-"[t]he Rhode Island Department of Education has established teaching and leadership standards as well as a code of professional responsibility for educators in Rhode Island." State of Rhode Island, Regulations Governing the Certification of Educators in Rhode Island, Effective January 1, 2012, (hereinafter "Regulations Governing the Board").
"These Regulations Governing the Certification of Educators in Rhode Island, which are authorized by Rhode Island General Laws 16-11-1 and 16-60-4, are promulgated in accordance with the duty of the Rhode Island Board of Regents for Elementary and Secondary Education to adopt standards and qualifications for the certification of educators in Rhode Island. These regulations shall supersede all of the Board's previous regulations governing the certification of educators in Rhode Island." Regulations Governing the Board at ii; see R.I. Admin. Code 21-2-59.
The Board of Elementary and Secondary Education, which used to be referred to as the Board of Regents Elementary and Secondary Education, is now known as The Rhode Island Council on Elementary and Secondary Education of the Board of Education.
The Court notes that the Committee has failed to specifically point to which provision within Part 3 of the Regulations Governing the Board Ms. McKenney allegedly violated. Rather, the Committee asserts that Ms. McKenney violated Part 3, as her behavior was unethical and violated the High School's policy. A brief view of Part 3 of the Regulations Governing the Board requires that "[t]eachers maintain professional standards guided by legal and ethical principles . . . follow school policy and procedures, [and] respect[] the boundaries of their professional responsibilities, when working with students, colleagues, and families . . . [and] are guided by codes of professional conduct adopted by their professional organizations." Regulations Governing the Board at 15.
As a result, in December of 2011, the Committee terminated Ms. McKenney's employment with the school district on the basis of the study guide, the cheating event, and any related misconduct. Id. at 7:5-24. Thereafter, the Committee held a post termination de novo hearing in May of 2012. Id. The Committee upheld its decision and terminated Ms. McKenney's employment on June 6, 2012. Id.
On June 15, 2012, Ms. McKenney appealed the Committee's decision to the Commissioner of the Rhode Island Department of Elementary and Secondary Education (Commissioner). The Commissioner appointed Forest Avila as the Hearing Officer (Hearing Officer), who heard the matter de novo on August 1, September 5, and October 11 of 2012. On August 28, 2013, the Commissioner issued a decision upholding the Committee's termination. See Comm'r of Educ. Decision, Aug. 28, 2013. In regards to the study guide incident, the Commissioner reasoned that Ms. McKenney's actions were neither malicious nor constituted insubordination, as the High School has no written policy on the dissemination of materials for use by students in preparing for examinations. Furthermore, the High School permits teachers to take their own approach in preparing students for examinations. Id. at 6. Therefore, the Commissioner found that the study guide incident alone did not establish good and just cause to terminate Ms. McKenney's employment. Id. In regards to the makeup final examination, however, the Commissioner found that Ms. McKenney's actions were equivalent to providing the correct answers to her two students and thus constituted cheating, which was in violation of the High School's policy. Id. As a result, the Commissioner concluded that there was good and just cause for Ms. McKenney's dismissal, even as a tenured teacher. Id. at 7. The Commissioner denied and dismissed Ms. McKenney's appeal. Id.
The Commissioner adopted the decision of the Hearing Officer.
The burden of proof was on the Committee to establish-by a preponderance of the evidence- the existence of good and just cause to terminate Ms. McKenney's tenured employment. See Foster-Glocester Reg'l Sch. Comm. v. Bd. of Review, 854 A.2d 1008, 1018 (R.I. 2004) (stating that "[t]he employer has the burden of proof and must present evidence of the employee's misconduct" in order to justify termination) (citing Technic, Inc. v. R.I. Dep't of Emp't and Training, 669 A.2d 1156, 1158 (R.I. 1996)); see also Aiudi v. Baillargeon, R.I. 454, 455, 399 A.2d 1240 (1979); G.L. 1956 § 16-13-5.
Thereafter, Ms. McKenney appealed the Commissioner's decision to the Board of Education. See Bd. of Educ. Decision, Apr. 15, 2014 (Board's Decision). In her appeal to the Board, Ms. McKenney asserted that because the attorney who represents the Committee is from the same law firm as the attorney that represents both the Rhode Island Department of Elementary and Secondary Education and the Commissioner, a conflict of interest existed. Id. Ms. McKenney further argued that there was insufficient evidence to support the Commissioner's finding that she aided the two students in cheating on their retake examination. See id. Conversely, the Committee argued that the Board should uphold the Commissioner's ruling that Ms. McKenney's conduct pertaining to the makeup examination provided good and just cause to terminate her, and reverse the Commissioner's finding that the study guide incident did not provide good and just cause for Ms. McKenney's termination. Id. On April 15, 2014, the Board issued a decision affirming the Commissioner's decision. Id.
On May 2, 2014, Ms. McKenney timely appealed the Board's Decision to the Superior Court, asserting that the decision is (1) in violation of applicable statutory provisions; (2) affected by other error or law; (3) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; and (4) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
II
Standard of Review
The Superior Court exercises jurisdiction over appeals from the Board pursuant to § 42-35-15(g) of the Rhode Island Administrative Procedures Act, which provides as follows:
"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 or 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).
As a general rule, "[a]dministrative agencies retain broad enforcement discretion, " and thus, considerable deference is accorded to an agency's decision. Arnold v. Lebel, 941 A.2d 813, 821 (R.I. 2007). Such deference is additionally given to an agency's interpretation of a statute, whose administration and enforcement has been entrusted to that agency. See In re Lallo, 768 A.2d 921, 926 (R.I. 2001) (stating that an agency's interpretation of its own statute or regulations should be accorded "weight and deference as long as that construction is not clearly erroneous or unauthorized") (internal citations omitted).
When considering questions of law, however, the Court is not bound by the determination of the agency but instead, may "freely review[] to determine the relevant law and its applicability to the facts presented in the record." State Dep't of Envtl. Mgmt. v. State Labor Relations Bd., 799 A.2d 274, 277 (R.I. 2002). Therefore, "questions of law-including statutory interpretation-are reviewed de novo." Iselin v. Ret. Bd. of Employees' Ret. Sys. of R.I., 943 A.2d 1045, 1049 (R.I. 2008).
Conversely, when considering questions of fact, the Court "may not substitute its judgment for that of the agency and must affirm the decision of the agency unless its findings are clearly erroneous." Guarino v. Dep't of Soc. Welfare, 122 R.I. 583, 410 A.2d 425 (1980) (citing § 42-35-15(g)(5)). The Court may "reverse factual conclusions of administrative agencies only when they are totally devoid of competent evidentiary support in the record." Milardo v. Coastal Res. Mgmt. Council, 434 A.2d 266, 272 (R.I. 1981). Further, the Court cannot "weigh the evidence [or] pass upon the credibility of witnesses [or] substitute its findings of fact for those made at the administrative level." E. Grossman & Sons, Inc. v. Rocha, 118 R.I. 276, 284-85, 373 A.2d 496, 501 (1977). Rather, § 42-35-15(g) limits the Court to an examination of the record in order to ascertain whether the agency's decision is supported by legally competent and substantial evidence. See Ctr. for Behavioral Health, Rhode Island, Inc., v. Barros, 710 A.2d 680, 684 (R.I. 1998); Kirby v. Planning Bd. of Review of Town of Middletown v. Peckham Bros. Co., Inc., 634 A.2d 285, 290 (R.I. 1993). "When more than one inference may be drawn from the record evidence, the Superior Court is precluded from substituting its judgment for that of the agency and must affirm the agency's decision unless the agency's findings in support of its decision are completely bereft of any competent evidentiary support." Rocha v. State Public Utilities Comm'n, 694 A.2d 722, 726 (R.I. 1997) (internal citations omitted). Legally competent evidence is such "relevant evidence that a reasonable mind might accept as adequate to support a conclusion [and] means an amount more than a scintilla but less than a preponderance." Town of Burrillville v. R.I. State Labor Relations Bd., 921 A.2d 113, 118 (R.I. 2007).
III
Analysis
A
Counsel Representation and Alleged Bias of Commissioner
In her memorandum to the Court, Ms. McKenney asserts that the Board's Decision affirming the Commissioner's finding in favor of the Committee must be reversed and/or remanded because it is affected by error of law, as the attorney who represented the Committee simultaneously serves as counsel to the Commissioner. Ms. McKenney further argues that such dual representation is a clear ethical violation. Ms. McKenney contends that administrative bodies are quasi-judicial in nature and therefore should be subject to the same ethical standards that govern judges. Ms. McKenney asserts that if this particular situation of dual representation involved a judge, both state and federal law would require that the judge disqualify himself or herself because his or her impartiality might reasonably be questioned given the potential personal bias and prejudice concerning the attorney. Ms. McKenney additionally avows that although both the Board and the Commissioner were well aware of the fact that the Commissioner's counsel also represented the Committee, they took no action to remove the Commissioner from this obvious conflict. Applying the so-called judicial nature of the Commissioner's position, Ms. McKenney asserts that the Commissioner's refusal to recuse herself from rendering a decision in favor of the Committee constituted an ethical violation that substantially prejudiced Ms. McKenney's rights, as she was not afforded the opportunity to be heard by an impartial fact finder. Ms. McKenney further concludes that the Board's failure to reverse the Commissioner's decision given this apparent conflict was an error of law. As a result, Ms. McKenney concludes that the Court should reverse and/or remand the Board's Decision.
The simultaneous representation is by Whelan, Kinder, and Siket LLP, which became Whelan, Corrente, Kinder & Siket LLP in April of 2015.
In response, the Committee asserts that Ms. McKenney's argument is misplaced as the Code of Judicial Conduct is designed to provide guidance to judges and judicial candidates only and therefore, does not apply to the Commissioner. In addition, the Committee contends that even if the Court found the Commissioner to be quasi-judicial in nature, and therefore subject to the Code of Judicial Conduct, the rule still does not apply here. The Committee asserts that the rule requires a judge to disqualify himself or herself only in a proceeding in which the judge's impartiality might reasonably be questioned, including instances in which the judge has a personal bias or prejudice concerning a party's lawyer. The Committee argues that case law makes it clear that such qualifying biases, whether favorable or unfavorable, exist when a party's lawyer also represents the judge individually and personally in a private or professional matter. The Committee contends that the law firm, however, does not represent the Commissioner personally or individually on any matter, whether private or professional. Instead, the Committee asserts that the law firm representing it in this matter also represents the Commissioner and her department in unrelated collective bargaining and salary disputes. As a result, the Committee concludes that no such conflict exists as this matter neither involved a judge nor any personal bias whatsoever, and the Board's Decision was therefore not affected by error of law.
The Rhode Island Code of Judicial Conduct "is intended to establish standards for ethical conduct of judges" only. R.I. Super. Ct. Art. VI, R. 1, Preamble (emphasis added). The Code warns that its purpose "would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding." Id. Therefore, the Code does not apply to state administrators. See id. In addition, the United States Supreme Court has made it clear that state administrators "are assumed to be men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances." Withrow v. Larkin, 421 U.S. 35, 55 (1975) (internal citations omitted). Furthermore, "[a]ccusations of bias are not self-elucidating." Rogan v. City of Boston, 267 F.3d 24, 28 (1st Cir. 2001). Agency decision-makers, therefore, are presumed to be "of honesty and integrity[, ]" a presumption that a litigant must overcome through evidence that demonstrates a "risk of unfairness [that is] intolerably high." Champlin's Realty Assocs. v. Tikoian, 989 A.2d 427, 443 (R.I. 2010) (internal citations omitted); see Rogan, 267 F.3d at 28.
"The Code is designed to provide guidance to judges and candidates for judicial office and to provide a structure for regulating conduct through disciplinary agencies. It is not designed or intended as a basis for civil liability or criminal prosecution." R.I. Super. Ct. Art. VI, R. 1, Preamble.
Ms. McKenney is trying to apply the Code of Judicial Conduct to an administrative agent, not a judge. This application runs directly afoul of the Code of Judicial Conduct, as the plain language of the Code states that it applies to judges only. See R.I. Super. Ct. Art. VI, R. 1, Preamble. As a result, the Code of Judicial Conduct does not govern the Committee, the Commissioner, or the Board's behavior in this instant matter. Furthermore, as an administrative agent of the state, the Commissioner is entitled to the presumption that she acted fairly and impartially, while upholding honesty and integrity in order to reach her decision. See Withrow, 421 U.S. at 55. Ms. McKenney has failed to overcome this presumption, as she has not offered any evidence that makes a showing that the Commissioner did not act impartially. See Rogan, 267 F.3d at 28.
As the Board found in its Decision, "the Commissioner's decision to not recuse [herself] on this appeal was in no way 'patently arbitrary, discriminatory, or unfair, '" nor did it "violate any rules, regulations, ethical guidelines, or any other principal." Board's Decision 3. There is no evidence in the record showing that the Commissioner had a pecuniary interest in the outcome of the matter, was the target of personal abuse or criticism by Ms. McKenney, failed to investigate the merits of Ms. McKenney's appeal, or possessed any prior knowledge of the facts underlying it. See Trs. Aug. 1, 2012; Sept. 5, 2012; Oct. 11, 2012. Also, no facts were presented that would question the Commissioner's impartiality. Moreover, the de novo review was conducted not by the Commissioner but by the Hearing Officer who considered the evidence of the record, the memoranda filed on behalf of the parties, and any oral arguments made. He then made findings of fact and conclusions of law to which the Commissioner assented. See Board's Decision 3. Accordingly, the Court finds that the Board's Decision was not affected by error of law as the Code of Judicial Conduct does not govern the Commissioner or the Board, and Ms. McKenney failed to overcome the presumption that the Commissioner acted fairly and impartially in reaching her decision.
See Slattery v. Sch. Comm. of City of Cranston, 116 R.I. 252, 262, 354 A.2d 741, 747 (1976) (holding that "appeals from school committee actions to the Commissioner of Education . . . contemplates a de novo hearing by the commissioner"); see also § 16-39-2 (stating that "[a]ny person aggrieved by any decision or doings of any school committee or in any other matter arising under any law relating to schools or education may appeal to the commissioner of elementary and secondary education who, after notice to the parties interested of the time and place of hearing, shall examine and decide the appeal without cost to the parties involved").
B
Review of the Evidence in the Record
Ms. McKenney also argues that the Board's Decision must be reversed and/or remanded because it is clearly erroneous in light of the reliable, probative, and substantial evidence in the record. Ms. McKenney asserts that the Commissioner's decision-which was affirmed by the Board-to terminate her employment relies on one single "observation" from Ms. Wengloski. Ms. McKenney contends that Ms. Wengloski was close friends with her "biased" supervisor, Geri McCarthy (Ms. McCarthy). Ms. McKenney further asserts that Ms. Wengloski's observation emanated from Ms. McCarthy instructing her to attend the retake examination in order to watch Ms. McKenney. Ms. McKenney further asserts that although the Commissioner's decision alludes to the observations of Ms. Varone, she is also close friends with Ms. McCarthy. In addition, Ms. McKenney avows that the record shows that the High School's History Department Policy "allows teachers to provide accommodations to students during examinations as needed regardless of identified disabilities or support plans, " and permits teachers to attend retake examinations and assist students where applicable. Ms. McKenney asserts that she was implementing this policy through her actions during the retake examination and in no way had the state of mind to facilitate cheating. Ms. McKenney further argues that both students had documented accommodations-PLP and 504-that required her to assist them in such ways. Moreover, Ms. McKenney contends that Tammy McMichael (Ms. McMichael), who has been a Barrington teacher for twenty-seven years, was present for the entire makeup examination, is familiar with the High School's policies, and testified to the appropriate conduct of Ms. McKenney during the retake examination. Ms. McKenney also argues that the lapse of time between the alleged improper conduct in May and her being confronted about it in August by Ms. Varone raises concerns about the High School's motive behind this matter, as well as the competency and recollections of Ms. Wengloski and Ms. Varone. Ms. McKenney further bolsters this argument by asserting that no one confronted her about the incident at the time it occurred, and that the students' grades were accepted by the High School. As a result, Ms. McKenney concludes that the Board's Decision must be reversed and/or remanded because it is clearly erroneous in light of the evidence.
Ms. McKenney contends that her relationship with Ms. McCarthy, the department chair for the High School's History Department, was "strained[, ]" as "[f]or whatever reason, Ms. McCarthy did not like [Ms. McKenney]." Tr. 149:18-21, Sept. 5, 2012. Ms. McKenney further asserts that, on numerous occasions, Ms. McCarthy harassed Ms. McKenney. Id. at 154:1-6. Ms. McKenney also asserts that Ms. McCarthy triggered the entire incident pertaining to the posting of the study guide. See Tr. 11:5-9, Aug. 1, 2012.
A PLP, which stands for personal literacy plan, is a plan developed to help students achieve short and long-term learning goals and bring them to proficiency in their level of reading. See Tr. 21-22, Sept. 5, 2012. Such plans are not considered part of a special education program. Id. at 23:19; 24:6-7.
A 504 Plan is a plan for students, who have a legally identified disability and are attending an elementary or secondary educational institution, to receive appropriate accommodations that ensure his or her academic success. See id. at 24:21-25:3.
Conversely, in its response memorandum, the Committee asserts that the record overwhelmingly supports the Board's Decision to affirm the Commissioner's finding that there was good and just cause to terminate Ms. McKenney's employment due to her actions regarding the makeup examination. The Committee argues that the record shows that a teacher, the assistant principal, and the students themselves all attest to the fact that Ms. McKenney was helping the students cheat. Specifically, the Committee contends that the record demonstrates that Ms. Wengloski watched as Ms. McKenney directed two of her students to the correct answers on the retake examination. The Committee asserts that the record further shows that minutes later, Ms. Varone made similar observations. In addition, the Committee argues the evidence proves that when questioned by Principal Joseph Hurley and Ms. Varone, the two students admitted that Ms. McKenney helped them to identify the correct answers on the examination and acknowledged that what happened was wrong. The Committee declares that it considered all of this evidence when it voted to terminate Ms. McKenney's employment, provided such evidence to the Commissioner when she conducted her de novo hearing, and further testified to such evidence before the Board. The Committee additionally asserts that the record indicates a valid reasonfor the lapse in time between Ms. McKenney's misconduct in July and her subsequent termination in August. The Committee contends that the Board's Decision is supported by competent and substantial evidence on the record, thus requiring that the Court affirm it. It is not the place of this Court to weigh the evidence, pass on the credibility of witnesses, or substitute its judgment for that of the Board. Guarino, 122 R.I. at 583, 410 A.2d at 425. Rather, the Court must examine the record in order to ascertain whether the Board's Decision is supported by legally competent and substantial evidence. See id.; see also Ctr. for Behavioral Health, Rhode Island, Inc., 710 A.2d at 684. Furthermore, the Court must affirm the Board's Decision "unless its findings are clearly erroneous." Guarino, 122 R.I. at 583, 410 A.2d at 425.
The Committee contends that the lapse in time was due to the High School making sure that all of the necessary parties-the students, Ms. McKenney, and the observers-were in attendance, and therefore, they had to wait until the start of the school year to address the retake examination issue. See Tr. 103:5-21, Aug. 1, 2012.
The Commissioner's decision found ". . . McKenney, perhaps out of misguided sympathy for the two students who were at academic risk if they failed the exam, facilitated and fostered through her actions student responses that undermined the academic integrity of the examination that the two students were taking." The conclusion was that Ms. McKenney was dismissed for good and just cause. See Comm'r of Educ. Decision, Aug. 28, 2013.
The record in this case is replete with testimony supporting this ultimate conclusion that good and just cause existed and was sufficient to terminate Ms. McKenney's employment. The evidence reveals that a number of High School employees-including supervisors and teachers other than the allegedly biased Ms. McCarthy-as well as students, personally observed Ms. McKenney engage in the inappropriate behavior of helping her students cheat. Both Ms. Varone and Ms. Wengloski testified that Ms. McKenney was steering the students to the correct answers on the retake examination. See Tr. 56-59; 126:13-24, Sept. 5, 2012. Specifically, Ms. Varone testified that she observed the female student "reading the question and pointing to an answer" after which Ms. McKenney would "talk[] to [the student] about the question[, ]" "nod[] her head[, ]" or told "her to rethink the answer she chose[.]" Id. at 56:7-57:4. Ms. Varone further stated that she observed Ms. McKenney engaged in similar conduct with the male student at least four times. Id. at 58:14-59:8. In addition, Ms. Wengloski testified that she witnessed Ms. McKenney "go[ing] through the question . . . and then they would go through the answer choices, and the student would guess, but when-if the student answered incorrectly the first time, she would nonverbally communicate that that answer was incorrect by inclining her head or raising her eyebrows, and they would go through each of the answers in that way[.]" Id. at 126:13-24.
Rhode Island law maintains that "[o]nce a teacher has . . . acquired status as a tenured teacher[, ]" he or she can "be dismissed for good and just cause[.]" Jacob v. Bd. of Regents for Educ., 117 R.I. 164, 169, 365 A.2d 430, 433 (1976) (citing Schiavulli v. School Comm. of N. Providence, 114 R.I. 443, 447, 334 A.2d 416, 418 (1975)); see § 16-13-3. Although the Rhode Island Supreme Court has not defined the phrase "good and just cause, " other jurisdictions have explained that "the term [good and just cause] includes 'any cause which bears a reasonable relation to the teacher's fitness or capacity to discharge the duties of his position.'" Kilpatrick v. Wright, 437 F.Supp. 397, 400 (M.D. Ala. 1977) (quoting Faircloth v. Folmar, 252 Ala. 223, 40 So.2d 697 (1949)). The Rhode Island Supreme Court has, however, held that the following factors are to be considered in determining whether good and just cause exists to terminate an employee, including the reviewing board or person's determination of whether just cause exists, the provisions of the collective bargaining agreement, the terms of the code of ethics, the employee's particular conduct, and "the practices and termination policies enforced by the department." State, Dep't of Corr. v. Rhode Island Bhd. of Corr. Officers, 867 A.2d 823, 835 (R.I. 2005).
In addition, the record shows that both students admitted that Ms. McKenney helped them identify the correct answers through the use of verbal and nonverbal indicators. See Tr. 112-114, Aug. 1, 2012. The record demonstrates that the male student described his interaction with Ms. McKenney as him "point[ing] to the answer" and Ms. McKenney "nod[ding] yes or no for each of the questions that he was asking her about." Tr. 76:9-11, Sept. 5, 2012. The male student even acknowledged that "he knew it was wrong[.]" Id. at 76:16. Furthermore, Ms. McKenney's contention that she was merely following the High School's policy is misplaced as the record reveals that neither the boy's PLP or the girl's 504 Plan allowed for special accommodations during testing. See Tr. 24:8-12, 68-71, Sept. 5, 2012; Tr. 48:10-13, Oct. 11, 2012. While Ms. McKenney asserts there was a school-wide policy to permit accommodations to all students, the record shows there was a draft of such a policy, but it was one person's idea and it was never disseminated to teachers nor was it accepted by the department chairs. Moreover, the record demonstrates that the High School does not permit teachers to give context clues during an exam. See Tr. 78:13-15, Sept. 5, 2012; Tr. 44:5-9, Oct. 11, 2012. Finally, the record reveals that Ms. McKenney violated the High School's policy when she left three juniors unattended in her anthropology class when she went to check on the two students that were taking the makeup examination. See Tr. 72-73, Sept. 5, 2012.
In the instant case, the Board's Decision was the product of multiple levels of fact finding, beginning with the Hearing Officer and culminating with the Board itself. This Court finds that the Board's Decision was not clearly erroneous as probative, reliable, and substantial evidence on the whole record exists that supports the findings made by the Hearing Officer and adopted by the Commissioner on behalf of the Board. Accordingly, this Court affirms the Board's Decision.
IV Conclusion
Upon review of the whole record, the Court finds that the Board's Decision was neither affected by error of law as there was no conflict of interest, ethical violation, or qualifying bias that would require removal of the Commissioner, nor was it clearly erroneous in view of the reliable, probative, and substantial evidence on the record. As a result, the substantial rights of Ms. McKenney have not been prejudiced. For the foregoing reasons, the Court hereby affirms the Board's Decision. The Board's finding that Ms. McKenney's dismissal was for good and just cause was not clearly erroneous and must be affirmed. Counsel shall submit an appropriate judgment consistent with this Decision.