Opinion
NO. 2018-CA-001489-MR
05-01-2020
MATT WALKER APPELLANT v. JEFFERSON COUNTY BOARD OF EDUCATION; AND MARTIN POLLIO, SUPERINTENDENT APPELLEES
BRIEFS FOR APPELLANT: William J. Walsh, IV Louisville, Kentucky BRIEF FOR APPELLEES: C. Tyson Gorman Jordan M. White Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 18-CI-400023 OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND KRAMER, JUDGES. CALDWELL, JUDGE: This case concerns the termination of Matt Walker, a tenured educator employed with the Jefferson County Board of Education (the Board). Walker's termination followed the Board's administrative decision that he had engaged in conduct unbecoming a teacher by using excessive force on a student. Walker appealed said decision to an administrative tribunal pursuant to KRS 161.790. The tribunal conducted an evidentiary hearing wherein it was decided the charges against Walker would be dismissed. The present appeal stems from the opinion and order of the Jefferson Circuit Court reversing the tribunal's decision under KRS 13B.150 and reinstating the Board's original decision to terminate Walker. After careful review, we reverse the order of the Jefferson Circuit Court and remand the case with instructions to reinstate the tribunal's final order.
Kentucky Revised Statutes.
BACKGROUND
The events giving rise to this case occurred at Minor Daniels Academy in Louisville, Kentucky. Minor Daniels is an alternative school that was reorganized in 2015 to accommodate students in middle and high school. Walker, who had been an educator for twenty-plus years and specialized in children with special needs, was hired after the reorganization as an assistant principal. His primary responsibility was to oversee any necessary disciplinary action. Walker's duties were conceivably more challenging than the norm because several Minor Daniels students were placed in the school due to the use of drugs, violence, and causing serious bodily injury to others.
The incident which inevitably led to Walker's termination occurred in 2017 during the eighth-grade lunch period. As part of the school's policy, students were to enter the cafeteria, sit at their tables, and wait to be released into the lunch line to get their food. While in the lunch line, the students were to remain quiet and refrain from disorderly conduct. Walker testified these policies were in place to prevent students from becoming agitated and causing disruptions. On the day of the incident C.G., who had only been at Minor Daniels for three days, was not following the school's policy.
According to Walker, C.G. was talking to another student in the lunch line who was being disruptive. Walker approached the other student to reprimand him when C.G. began commenting on Walker's interaction with the other student. Walker believed C.G.'s repeated and inappropriate commentary was causing a disruption. To address C.G.'s behavior, Walker entered the serving area behind him and "redirected him to be quiet and stop making the remarks."
The serving area is a small room separate from the main cafeteria where the students file through one door, get their food, and exit through a second door on the opposite side of the room returning to the main cafeteria.
When Walker followed C.G. into the serving area, C.G.'s disruption escalated to threats and he began to ball up his fists. As a result, Walker repeatedly told C.G. to un-ball his fists and exit the lunch line. C.G. slowly moved toward the serving area exit but repeatedly stopped to make further comments. At this point, another teacher approached the serving area exit and also instructed C.G. to un-ball his fists. C.G. moved toward the teacher and attempted to exit on the right side of the doorway. Walker then placed his hands on C.G.'s shoulders, at the base of his neck, and transitioned C.G. to the left side of the doorway.
Walker then grabbed the front of C.G.'s shirt and directed him to the main portion of the cafeteria. Walker and the other teacher continued to tell C.G. to un-ball his fists; however, C.G. did not comply and began threatening Walker's life. Soon thereafter, C.G. lunged at Walker who grabbed C.G.'s shirt, pivoted C.G., and took C.G. down to the cafeteria floor. Walker's report of the incident states C.G. was placed in a kneeling restraint until assistance arrived and he was taken to the main office.
After the incident, a due process meeting was held wherein Walker, C.G., C.G.'s mother and stepfather, the principal, and other educators from the district were present. Here, Walker provided a statement of events and answered the questions presented to him about what took place. Although video existed of the incident, it was not ready to be reviewed when the due process hearing took place. Additionally, when C.G.'s mother asked him if Walker's account was accurate, he nodded his head affirmatively.
Walker was subsequently terminated due to "insubordination, conduct unbecoming of a teacher, insufficiency, incompetency, and neglect of duty." Walker answered the charges against him pursuant to KRS 161.790(3) and, as a result, a two-day hearing was conducted in the presence of the tribunal in accordance with the statute. At the conclusion of the hearing, the tribunal issued a twenty-six-page opinion wherein it determined Walker's actions did not amount to conduct unbecoming a teacher and the charges were dismissed.
All charges, except conduct unbecoming a teacher, were dismissed during the proceedings leading up to the evidentiary hearing.
The Board appealed the tribunal's decision to the Jefferson Circuit Court under KRS 13B.150. In a scathing opinion and order, the circuit court determined the facts, as stated by the tribunal, were not supported by the record or Kentucky law. The circuit court gave full deference to the muted video of the incident suggesting it was the "best evidence," rather than considering witness testimony in conjunction with it. As a result, the circuit court reversed the tribunal's decision and reinstated Walker's termination. This appeal followed.
ANALYSIS
KRS 161.790 outlines the adjudication process for public school teachers regarding disciplinary issues. Under the statute, the commissioner of education selects an ad hoc hearing tribunal to conduct an administrative evidentiary hearing. KRS 161.790(4)-(5). It is well established that "the role of the [t]ribunal, as the finders-of-fact, [is] to determine 'what happened' and as the adjudicative body with original jurisdiction, to apply the law and if appropriate grounds are found, decide upon the appropriate sanction." Bd. of Educ. of Fayette County v. Hurley-Richards, 396 S.W.3d 879, 884 (Ky. 2013). However, the tribunal's decision is subject to judicial review under KRS 13B.150. KRS 161.790(9). The court's role on appeal is to review the tribunal's factual findings and its conclusions of law.
SUBSTANTIAL EVIDENCE SUPPORTS THE TRIBUNAL'S
FINDINGS OF FACT
Walker's argument on appeal is that the circuit court erred by stepping into the role of fact-finder and substituting its judgment on the evidence for that of the tribunal. The Board disagrees, stating the video of the event is so overwhelming the tribunal could not have reasonably reversed its decision to terminate Walker.
Our standard when reviewing the tribunal's factual findings is to "affirm a finding of fact only if the competent evidence before the tribunal constitutes substantial evidence." Drummond v. Todd County Bd. of Educ., 349 S.W.3d 316, 321 (Ky. App. 2011).
In determining whether the competent evidence is substantial, the usual standards apply. The test of substantiality of evidence is whether when taken alone or
in the light of all the evidence it has sufficient probative value to induce conviction in the minds of reasonable people. While the reviewing court may disagree with a factual determination, it may not substitute its judgment for that of the fact-finding body. Further, it is within the province of the fact-finder to determine the credibility of witnesses and the weight to be given the evidence.Id. at 322 (internal quotation marks, brackets, and citations omitted). In other words, we defer to the fact-finder unless the record lacks evidence that could induce conviction in the minds of reasonable people.
We begin with the tribunal's findings of fact. Essentially, the tribunal found Walker's testimony was credible and adopted his version of the events. To succinctly summarize, the tribunal found C.G. was causing a disruption in the lunch line. Despite Walker's repeated efforts to redirect C.G. to be quiet and to stop making comments, C.G.'s conduct only became more disruptive. He began to threaten Walker, saying, "you better not put your hands on me or I'm swinging[,]" and balled up his fists although Walker had not made any indication he was going to put his hands on C.G. Walker directed C.G. to exit the serving line and C.G. began slowly making his way thereto, but repeatedly turned back and threatened Walker.
Walker then removed C.G. to the main cafeteria, just outside the serving room, by turning him around to face him, grabbing the front of his shirt, and using his forearm to direct C.G.'s movements. C.G. continued to make threats and kept his fists balled despite Walker's efforts to get him to stop. While in the cafeteria, Walker stood in front of C.G. making him barely visible on the video footage. Based on Walker's testimony, C.G. then attempted to push past Walker on his right side and was unsuccessful. He then lunged at Walker on his left. Because of the lunge, Walker grabbed C.G.'s shirt with both hands, pivoted, and aggressively lowered C.G. to the ground where he was placed in a kneeling restraint. The tribunal found Walker's actions were controlled the entire time and that C.G. was not injured as a result. To make these findings, the tribunal reviewed Walker's testimony and report, the video, and the testimony and statements from other educators.
However, the circuit court believed the tribunal's findings were unsupported by substantial evidence in the record. In its opinion the circuit court stated,
The issue is what occurred on September 18, 2017 in the cafeteria of Minor Daniels Academy. The video is the best evidence of what occurred and therefore the interpretation of such is central to determining the sequence and nature of events.The circuit court then proceeded to lay out the events as it interpreted them based solely upon the video. Additionally, the circuit court commented that the tribunal gave undue weight to Walker's testimony, Minor Daniels's classification as an alternative school for troubled youth, and that C.G. was not injured. Furthermore, the circuit court failed to indicate whether it gave any consideration to the testimony and statements of the other witnesses, including those who were present at the incident.
Regardless, it was not the circuit court's responsibility to determine what the "best evidence" was or how much weight to give the evidence presented at the administrative hearing. Kentucky law instructs the courts to defer to the fact-finder unless there is no substantial evidence in the record to support the tribunal's findings. Drummond, 349 S.W.3d at 322. Such was not the case here.
During the hearing, the tribunal heard testimony from several witnesses including Walker and Stephanie Stinnett (Minor Daniels's goal clarity coach who was present during the incident). Additionally, it reviewed the video of the incident, Walker's report, and the statements of Walker, Stinnett, and Dr. Rhonda Branch (the other educator asking C.G. to calm down and un-ball his fists) from that day. Summary notes from the due process hearing, created by Tracy Percival, a district representative, wherein C.G. affirmed that Walker's version of the event was accurate, were also introduced as evidence.
The other witnesses were also educators, most of whom are employed at Minor Daniels, who reviewed the video of the incident but were not present during the events.
The Board and circuit court placed a lot of emphasis on what the video "clearly" shows. However, the video has no sound and one cannot hear the conversation or threats that occurred. Additionally, it would be ideal to have video confirmation that C.G.'s hands were balled, that he attempted to push past Walker, and that he eventually lunged at Walker. It would also be preferable if the video showed how C.G. was lowered to the floor, and how C.G. was restrained. But, as the tribunal noted, these moments in the video are unclear. While, as the Board points out, "a picture may be worth a thousand words," words are needed to tell the whole story. The rest of the evidence discussed above provides that story.
The tribunal reviewed the video nearly minute-by-minute and compared it to Walker's testimony and report. It determined that both were consistent with the video. Stinnett's testimony and statement and Dr. Branch's statement also corroborated Walker's testimony. Furthermore, the notes from the due process meeting indicate that C.G. agreed with Walker's version of the events. This evidence is substantial and supports the tribunal's findings of fact. Therefore, the circuit court erred by stepping into the role of fact-finder.
THE TRIBUNAL CORRECTLY APPLIED KENTUCKY LAW
TO ITS FINDINGS OF FACT
Turning to matters of law, the Board argues that even if the circuit court improperly stepped into the fact-finding role, its decision should still be affirmed because Walker's actions clearly violate Kentucky law. Walker, on the other hand, suggests his conduct was within that permitted under the administrative regulations.
We review matters of law under a de novo standard. Hurley-Richards, 396 S.W.3d at 885. KRS 13B.150(2) allows a court to reverse a tribunal's administrative order if it is:
(a) In violation of constitutional or statutory provisions;In the case sub judice, the circuit court reversed the tribunal's decision because it was arbitrary, capricious, and an abuse of discretion. For the following reasons we disagree.
(b) In excess of the statutory authority of the agency;
(c) Without support of substantial evidence on the whole record; [or]
(d) Arbitrary, capricious, or characterized by abuse of discretion. . . .
We note that the circuit court did not cite to any case law or statutes as to why it made this determination.
KRS 161.790(1)(b) creates a legal cause of action for conduct unbecoming a teacher; however, the legislature did not see fit to define what constitutes such conduct. The Kentucky Supreme Court has stated
"conduct unbecoming a teacher" is conduct that is unsuitable, indecorous, or improper of a teacher. Although conceptually broad compared to some of the other grounds for termination listed in the statute, conduct that fits within this definition will be conduct that violates the accepted norms of decent behavior and offends the sensibilities of reasonable persons, taking into account the role of a secular, public school teacher in our culture. . . . [T]he determinative factor is whether the
conduct offends the sensibilities of reasonable persons under the circumstances.Hurley-Richards, 396 S.W.3d at 887 (footnote omitted). Although the Court may give deference to the tribunal's definition, we are not bound by its interpretation because it is the judiciary's duty "to say what the law is." Id. at 885 (quoting Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 177, 2 L. Ed. 60 (1803)).
Here, the alleged conduct was excessive use of force when Walker restrained C.G. The Department of Education has adopted administrative regulations outlining permitted physical restraint on a student, 704 KAR 7:160 § 3. The regulation provides:
Kentucky Administrative Regulations.
(3) Physical restraint may only be implemented in a public school or educational program if:
(a) The student's behavior poses an imminent danger of physical harm to self or others and as permitted under KRS 503.050, 503.070, and 503.110;
. . .
(d) Less restrictive behavioral interventions have been ineffective in stopping the imminent danger of physical harm to self or others. . . .
. . .
(4) When implementing a physical restraint, school personnel shall use only the amount of force reasonably
believed to be necessary to protect the student or others from imminent danger of physical harm.704 KAR 7:160 § 3(3)-(4).
The Board first argues that Walker's use of physical restraint was not justified under the above regulation. However, the tribunal found that C.G. made threats toward Walker, balled his fists while speaking with him, attempted to push past him, and ultimately lunged at him, all of which are aggressive behaviors. Given C.G.'s agitated state and aggressive behavior, C.G. posed an imminent danger of physical harm to himself or others. Walker and Dr. Branch attempted to use other methods to de-escalate the situation and calm C.G. down. These efforts were unsuccessful. Walker testified he made the decision to restrain C.G. only after C.G. lunged at him. Considering the circumstances, it was reasonable for Walker to lower C.G. to a kneeling restraint to protect C.G. and others from physical harm. As such, Walker's actions were within the scope of the administrative regulations.
The Board also argues the tribunal's conclusion is clearly a violation of Kentucky law because Walker used a supine restraint which is prohibited. 704 KAR 7:160 § 3(2)(e). A supine restraint
means the student is restrained in a face up position on the student's back on the floor or other surface, and physical pressure is applied to the student's body to keep the student in the supine position.704 KAR 7:160 § 1(17).
The only place the Board points to in support of its assertion is that the tribunal found "[t]he Petitioner and several other school personnel were required to restrain CG on the floor." The Board would have us believe that "on the floor" means Walker threw or slammed C.G. on the floor, flat on his back, and kept him there. This variation of "on the floor" is unsupported by the findings of fact or the record.
Walker consistently denied he threw or slammed C.G. on the floor, and the tribunal found his testimony to be credible. The video offers us no insight into this matter because C.G. is obscured by tables and school personnel. Moreover, Walker's behavior detail report from the date of the incident says, "AP transitioned [C.G.] to the floor in a kneeling restraint." To be placed in a kneeling restraint as Walker reported, C.G. would have to be "on the floor." During the hearing, the Board attempted to discredit Walker's report and the tribunal rejected its contentions. Therefore, this argument is without merit.
The Board's final argument is yet another attempt to discredit Walker's report from the date of the event. The law requires the use of physical restraint on a student to be documented. 704 KAR 7:160 § 5. There is no assertion that Walker failed to follow the administrative requirements, merely that Walker's report is "an old-fashioned cover-up." As we previously discussed, it is not our duty on appeal to weigh the credibility of the evidence and the witnesses. Drummond, 349 S.W.3d at 321. We need not consider this argument any further. --------
Finally, we pause to note it is not our intention to condone Walker's behavior or to create a different standard of conduct for educators in general population schools and those in alternative schools. Our duty as the judiciary is to interpret and apply the law to the facts of a case. Review of Kentucky's precedent reveals that a determination as to whether an educator's conduct is unbecoming is a case-by-case inquiry. Given the vague definition of conduct unbecoming, on occasion there is bound to be a fine line between sanctioned conduct and conduct unbecoming. This is such a case.
The findings show C.G. displayed aggressive behavior, and Walker made multiple attempts to de-escalate the situation to no avail. When C.G. lunged, C.G. posed an imminent danger of harm to himself or others. The record also shows Walker believed the kneeling restraint used on C.G. was reasonably necessary to protect C.G., other students, and staff from imminent danger of physical harm. Therefore, his actions were within the confines of the administrative regulation and do not constitute conduct unbecoming a teacher.
CONCLUSION
For the foregoing reasons, we reverse the decision of the Jefferson Circuit Court and remand the case with instructions to reinstate the tribunal's findings of fact, conclusions of law, and final order.
ACREE, JUDGE, CONCURS.
KRAMER, JUDGE, CONCURS IN RESULT AND FILES SEPARATE OPINION.
KRAMER, JUDGE, CONCURRING: I am compelled by the constraints of the law to agree with the result reached by the majority opinion. As an appellate court, our restrictions on administrative review are well settled and well stated by the majority opinion. Given the credibility determinations made by the tribunal after hearing witness testimony and given the lack of audio and the poor quality of the video recording of the incident in question, I cannot say that we have the liberty to affirm the trial court in light of the deference we must give the trier of fact on credibility determinations. However, having watched the video, I found it very disturbing to say the least. It does not appear the student was "lowered" to the floor. Rather, a drastically larger teacher appears to use his much greater strength to take a much smaller student off his feet and then quickly and forcefully take him to the floor. I can fully understand the Board's point of view and why the trial court was greatly troubled by the video. My reaction to the video is similar to that of the trial court's view of it. I am disturbed by it as well. However, I am not the trier of fact; nor was the trial court. I did not have the opportunity to judge the credibility of the witness—and indeed that is not my role; nor was it the trial court's role. In the absence of audio or a better-quality video, I am unfortunately compelled by the law to concur in this opinion. BRIEFS FOR APPELLANT: William J. Walsh, IV
Louisville, Kentucky BRIEF FOR APPELLEES: C. Tyson Gorman
Jordan M. White
Louisville, Kentucky