Friday, September 02, 2011

Hurley-Richards Prevails on Appeal

Silberman Over-reached by Charging
Conduct Unbecoming a Teacher

Finding "no error with the trial court’s order," the Kentucky Court of Appeals today affirmed an order by Judge Ernesto Scorsone of the Fayette County Circuit Court and threw out the Fayette County School district's appeal.

Hurley-Richards had been disciplined, in February 2009, following a student disturbance in the hallway of Cardinal Valley Elementary School after which former Fayette County schools Superintendent Stu Silberman determined that Hurley-Richards' actions consitituted conduct unbecoming a teacher when she disciplined a student involved in the incident.

Following the incident, Silberman informed Hurley-Richards that she would be suspended, and subsequently that her contract was terminated. An administrative tribunal followed, and determined that Hurley-Richards' actions only constituted bad judgment, and the tribunal reduced Silberman's termination to a suspension.

Richards sought review of the hearing tribunal’s final order by the Fayette Circuit Court. She requested retroactive reinstatement with lost wages and benefits. The trial court found that the conclusions of the tribunal’s order were unsupported by substantial evidence on the whole record and reversed the tribunal’s order. The case was remanded to the tribunal for further proceedings. That was interrupted when the district decided to appeal.

Ultimately, by a 2-1 vote, the appeals court rejected the arguments offered by school district attorney Bob Chenoweth that the trial court misinterpreted the tribunal’s final order by making findings of fact on issues not raised before the tribunal, and by substituting its judgment for that of the tribunal.

The Court of Appeals determined that an administrative tribunal is afforded great latitude in its evaluation of the evidence and the credibility of witnesses. According to court records,

On February 3, 2009, Richards arrived at Cardinal Valley Elementary School, where she was a teacher. After seeing that there did not appear to be a hall monitor, she posted herself in the hallway as the hall monitor. Three sibling children, MK, a fifth-grader; ZK, a second-grader; and EK, a kindergarten student were present in the hallway and ZK and EK were running. Richards instructed ZK and EK to go back up the hall and walk back down properly, without running. ZK ran down the hallway again. When Richards reprimanded him, he responded that she could not tell him what to do. Richards instructed MK and EK to go to breakfast so that she could speak with ZK. MK and ZK then began pulling EK in separate directions with ZK pulling EK’s hair.
Richards, who had one arm full of school supplies, placed her other arm around ZK and proceeded to direct him toward the school’s office. ZK protested, and physically resisted being directed toward the office. At one point ZK remarked to Richards that she was choking him and Richards responded that she was not hurting him. The incident was witnessed by another employee, Sheri Hall, who testified that it appeared as though Richards had ZK around the neck. Hall did not intervene. Upon entering the office, Richards reported the hallway incident to the Principal and left.
The Court of Appeals seemed critical of Silberman's broad use of conduct unbecoming a teacher saying, "The phrase 'conduct unbecoming a teacher' has never been given a more expansive definition." The court determined that it "means something more than one incident of physically coercing an unruly child to the office" and "involved some sort of dishonest or corrupt behavior."
As the trial court observed, there is a clear disconnect between the tribunal’s factual findings and its suspension of Richards. Such an outcome is arbitrary and was therefore properly reversed and remanded by the trial court.


Anonymous said...

Stu bullied this fine teacher. He also attempted to destroy the life and reputation of an outstanding African American educator. Congratulations on Roasind's win.

Stu Silberman, a mover and shaker in American education? I don't think so....More like a Michelle Rhee with a bigger ego and a teachers be damned mentality.

Anonymous said...

Dear Richard,

Thank you again for printing this. It was clear that this case, though not heavily publicized, was part of a familiar pattern in Fayette County Public Schools. When it was the word of a teacher over the word of a student, Stu almost always took the side of the student. Like Michelle Rhee of the D.C. schools, Stu attempted to make a name for himself as a "kid-friendly" superintendent, who would fire teachers whom he felt did not follow his edicts.

I shudder when I think of how many employees accused of wrongdoing by Stu simply left quietly. I am therefore pleased Mrs. Hurley-Richards chose to fight, and I am pleased she won. I'm certain that in the week after Silberman terminated her, he made the obligatory to visit to Bracktown Baptist in order to explain to church leadership why he chose to dismiss a decorated African American teacher who was once teacher of the year.

Unfortunately, the conspiracy of silence adopted by the Herald Leader has meant that most members of the public are unaware of all of these poor judgment calls by our so-called reformer superintendent.

Congratulations, Mrs. Hurley-Richards, on your victory. Perhaps Mr. Silberman will one day be indicted for "conduct unbecoming a superintendent."

Richard Day said...

I slept on it, and decided to edit a comment from Anonymous @ 9:47 AM Sept 3:

It included a personal accusation against Silberman that the author acknowledged was no more than rumor and without foundation. Let's not go there; not without some foundation.

Here's the rest of the comment:

"The timing of Mr. Silberman;s departure is incredible. I honestly believe he knew that he was getting caught. Rosalind Hurley-Richards was a victim of this man's ego. Now, there are runors swirling in the school system that ...
I continue to be amazed the way information is presented (and withheld) to make Mr. Silberman look [g]ood. So much for the free press in Lexington.... Was this decision even published by Jim Warren?"

Anonymous said...

I am pleased to hear of Rosalind's exoneration. It grieves me to know that Mr. Silberman did these things to teachers who were attempting to impose discipline. What a tainted legacy he leaves behind.

Anonymous said...

Maybe the Fayette County Schools in-house lawyer will help Mr. Silberman and his successor to understand the legal implications of "conduct unbecoming a teacher." Oh, wait, Stu fired the in-house lawyer, too. Was it foe "conduct unbecoming a lawyer ?"

Richard Day said...

September 4, 2011 5:58 AM: If H-L ran the story, I missed it.

September 4, 2011 6:19 PM: I do know that the issue of in-house counsel for FCPS is getting another look under Tom Shelton. He was asked about it during his interview and said he really wasn't sure what the district ought to do, but that it was something he would look into. Now, he is - and he appears to be leaving no stone unturned - talking to folks on both sides of the issue.

As KSN&C readers know, I think the position should not have been eliminated and that it should now be restored - mostly for the principals who need that support - but also for the superintendent who needs that check on their otherwise unbridled authority. The decision to eliminate the position stunk of adult issues and I remain unconvinced that it was meant to help children - and it NEVER was going to save the district money - even before the $200K pay out to Brenda Allen. In a district the size of FCPS it is more efficient to handle personnel (and many other) actions internally and someone within the district needs to coordinate any other legal activity that the district needs to outsource.

One wonders how much this one decision played on the mind of Becky Sagan and her decision to move into a new district and resign her post.

Anonymous said...

Well, at least an attorney is now on the board! I wonder how much Barnett's election became a headache to the past administration. With the exception of transportation (who involved his kid in a mishap -- how dumb was that!), surely it made them think twice about doing things. Might have even caused the administration change.

Speaking of Barnett, I've been hearing his name pop up as a candidate for city council. Heard anything on that?

Anonymous said...

Beck Sagan left the district for other reasons....

Richard Day said...

September 5, 2011 8:36 AM: I have no clue. If he did, he wouldn't be the first to use school board as a stepping stone. Doug usually reads KSN&C: perhaps he will say.

September 5, 2011 8:39 AM: You're probably right. I just wonder sometimes if the in-house counsel experience soured her at all.

Anonymous said...

Vindication for Rosalind!!!
Vindication for Rosalind!!!
Vindication for Rosalind!!!

Anonymous said...

When a superintendent cannot stand behind his teachers, there is a complete loss of authority in a school. Mr. Silberman's reign of terror undermined the role of the disciplinarian teacher and gave students a "green light" for bad behavior.

Dr. Shelton, new head if Fayette County Public Schools, would do well to study this case and not repeat it.

Richard Day said...

I did hear form Doug Barnett. He says, "I read the post today where somebody heard my name come up as a possible candidate for LFUCG council. I wanted to let you know that I have absolutely no interest in running for council in 2012 and that I have not even considered that. I enjoying serving the community as member of the Fayette County Board of Education and I am very excited about this district's future under Dr. Tom Shelton."

So, there you have it.

Anonymous said...

What does Mr. Barnett have to say about Rosalind's vindication? Is he allowed to comment publicly on the topic. I really respect him!

Anonymous said...

Should not all of us be critical of Silberman's broad use of "conduct unbecoming a teacher?" Thank God for the Court of Appeals! Thank God that Rosalind won her case....

Anonymous said...

Dear Rosalind,

In the end tyrants fall. Stu did not win, and though he left you battered and bruised, you emerged victorious.

I'm so happy Mr. Silberman is gone. Let him do his thing at Prichard Committee. Seldom do I meet administrators who are so downright hostile to the idea of a teacher who maintains discipline.

You displayed "conduct becoming a teacher." We love you!