RIDE #18-059: Claudia Hoddersen v....

STATE OF RHODE ISLAND

COMMISSIONER OF EDUCATION

CLAUDIA HODDERSEN

SOUTH KINGSTOWN SCHOOL COMMITTEE

18-059

DECISION

Held: The School Committee's violation of Ms. Hoddersen's right to a meaningful hearing when it conducted an evidentiary post-termination hearing on the issue of her dismissal was remedied by the de novo hearing before the Commissioner, where the School Committee established that it had "good and just cause" to dismiss the tenured teacher.

Date: December 9, 2020

Introduction:

This matter concerns an appeal by a tenured teacher from a school committee's finding that it had "good and just cause" for her dismissal under the Teachers' Tenure Act. RIDE Hearing Officer Kathleen S. Murray was appointed by the Commissioner to hear the matter and after doing so, she submitted a draft decision for the Commissioner's consideration, a copy of which is attached hereto as Exhibit A (the "Draft Decision").

The Commissioner accepts the findings of fact and ultimate conclusion in the Draft Decision affirming the teacher's dismissal, and agrees with the Hearing Officer that the School Committee violated the teacher's right to due process. However, after completing her review, the Commissioner concluded that Hearing Officer Murray's legal conclusion that the teacher might be entitled to an award of monetary damages due to the School Committee's due process violation was not legally correct.^[1] Alternatively, the Commissioner applied the well-accepted general rule and concluded that the de novo hearing before Hearing Officer Murray was a sufficient remedy for any due process violation that might have occurred before the School Committee under the Teachers' Tenure Act.^[2] Thus, the Commissioner is issuing the following in lieu of the Draft Decision, which is identical to the Draft Decision up to the very last page.

Travel of the Case:

Through her attorney, Claudia Hoddersen filed a timely appeal of the South Kingstown School Committee's decision of May 30, 2018 to terminate her employment as a teacher in its school system. The matter was assigned to the undersigned hearing officer on June 11, 2018.

Hearings were scheduled and held during the period September 24, 2018 through July 24, 2019.

An extensive briefing schedule requested by the parties was completed on June 26, 2020. On September 22, 2020, the record was supplemented by three additional exhibits (Appellant's Ex. O, P and Q) that were not in the hearing officer's file.

Jurisdiction to hear this appeal lies under R.I. Gen. Laws § 16-13-4, the statute governing the procedures that accompany the dismissal of a tenured public school teacher in Rhode Island.

Issues:

Is the School Committee's dismissal of Claudia Hoddersen supported by "good and just cause" as required by R.I. Gen. Laws § 16-13-3?
Was Ms. Hoddersen's dismissal by the School Committee accompanied by the procedures required by R.I. Gen. Laws § 16-13-4 and appropriate due process?

Findings of Relevant Facts:

Claudia Hoddersen has been a teacher in the South Kingstown school system since 2004, with the exception of one year in which she taught in Cumberland. In the 2017-2018 school year she was employed as a seventh-grade science teacher on Team Intrepid at Curtis Corner Middle School. Tr. 618-619; 1905; 1977.^[3]
Ms. Hoddersen, a tenured teacher, was formally evaluated during the 2016-2017 school year. She achieved a final effectiveness rating as a "highly effective" teacher, with her evaluator commenting on the "high level of student engagement" in her class and her "well-planned and executed lesson." App. Ex. 1. She had no disciplinary record as of the 2017-2018 school year. Tr. 1733, 1931; 1944. One of her colleagues, also on Team Intrepid, described her as an "outstanding teacher" and "terrific to work with" who contributed to the strong reputation of Team Intrepid in the South Kingstown school system. Tr. 599-602.
In the 2017-2018 school year, one of the students in Ms. Hoddersen's science class was J.R., a student with a disability who had limited verbal intelligibility. He made noises while in class, with varying intensity and frequency, sometimes continuously throughout class. The noises consisted of a "clicking sound," humming and self-talk, all of which were described as "verbal self-stimulation." S.C. Ex. 18. After reviewing J.R.'s educational records and conferring with his former speech pathologist, who had worked with him for a number of years, J.R.'s case manager came to the conclusion that all of these noises were "beyond his control." Tr. 1008-1014, 1022.^[4] In a meeting with Ms. Hoddersen and other members of Team Intrepid on September 19, 2017, J.R.'s case manager explained to her that J.R.'s noisemaking was a self-soothing behavior outside of his control and recommended that Ms. Hoddersen "ignore it" and "allow it to become part of the background" because if she tried to address it, "it's likely to increase". He advised at the time “. . . if your goal is for him to have a calm voice and remain quiet, your best course of action would be to ignore [it]". Tr. 1009.
According to the Individualized Education Program ("IEP") developed for him, J.R. was able to attend to academic tasks for a period of time up to 20-25 minutes. One of his goals for school year 2017-2018 was to increase his ability to stay on task in the classroom. S.C. Ex.6. When "off-task" he exhibited behaviors that included: noncompliance with requests that he do or complete his assigned work, physical contact with his preferred, same-gender peers, and other disruptive behaviors. S.C. Ex. 6, 27, 30 and 33. A "Behavior Incentive Sheet" or "Point Sheet" was utilized in all of his classes to incentivize J.R.'s positive behaviors with respect to his being prepared for class, using a calm voice, completing work and observing boundaries of others' "personal space". S.C. Ex. 9; Tr. 966-973.
Behavioral concerns regarding J.R. in science^[5] were addressed at the September 19, 2017 meeting of Team Intrepid.^[6] His case manager had done two observations of J.R. in science class just prior to this meeting and shared his findings and recommendations with Ms. Hoddersen and the rest of the team. A plan was made for J.R.'s case manager to "push in" to J.R.'s science class two times a week for a one-month period to model behavioral strategies and provide feedback to Ms. Hoddersen and J.R.'s teacher assistant. During the times he "pushed in" to science,^[7] the case manager recommended to Ms. Hoddersen that she use a white board with a visual schedule for J.R.'s work of the day at the beginning of each class, use his Point Sheet to incentivize good behavior, utilize opportunities for J.R to complete tasks with a peer model and provide positive reinforcements to him prior to the end of each class. Tr. 994-1004; During these "push ins" the case manager did not address noise-making or recommend that J.R. be told to "stop" (making noises), because it was outside of J.R.'s control and therefore was not going to be effective. Tr. 1022-1024. S.C. Ex. 18 and 19.
J.R.'s IEP provided for his receipt of instruction in his core academic courses in a small group with a special educator (who was also his case manager) and for his placement in an inclusion setting for his other classes. This placement reflected the decision of his IEP team that J.R.'s educational environment should be a regular class from 40% to 79% of his school day.^[8] This included his placement in Ms. Hoddersen's science class where he had the assistance of a teacher assistant.^[9] S.C. Ex. 6; J.R. received modified academic work created by Ms. Hoddersen on a daily basis. After this work was completed, he would (or at least the plan was that he would) join in the regular education lesson of the day. Tr. 638-639.
The execution of the plan for J.R.'s instruction in science did not go well; Ms. Hoddersen testified^[10] that she (and his teacher assistant) had a hard time getting J.R. to stay on task and to do work (Tr. 648); when J.R. was asked to do any type of work, "it [the self-soothing noises] would become louder and louder and louder". Tr. 649. J.R. would not do his work, would play on his computer, touch other students and take their notebooks, pencils and laptops. When he became disruptive in the classroom- to the extent that she couldn't teach- Ms. Hoddersen sought to clarify what the "proper protocol" to be followed was so that she would not have to call his case manager for assistance. Tr. 649- 651. While the case manager at first responded to her calls for assistance,^[11] after three-five times of leaving his assigned class to respond to her calls, he advised Ms. Hoddersen that he could no longer do so. He told Ms. Hoddersen not to call him anymore. Tr. 1040- 1042; 1080.^[12] From early October to mid- November, Ms. Hoddersen called upon the Dean of Students for assistance with J.R. This occurred toward the end of the class period, from one to three times per week. Tr. 1451. When called, the Dean of Students would remove J.R. from the classroom for the remainder of the class period. Tr. 1454- 1455; 1459. Ms. Hoddersen also sought, without success, to have a different teacher's aide assigned to work "more effectively" with J.R. in her class. Tr. 745-746.
Ms. Hoddersen testified that J.R.'s self-stimulation noises, the clicking and humming, bothered her even though "she knew that he couldn't control it" and that when she would ask him to "quiet down and get back to work" he would often get louder and more agitated. Tr. 659-660. She testified that she didn't remember the case manager advising her to ignore these noises. Tr. 670. She found J.R.'s noises to be a disruption to her teaching and thought that they disrupted the flow of the classroom and [the learning of] the other students. Tr. 681-684. She admitted to becoming frustrated with J.R. and testified that she felt that her concerns and complaints were not being heard. Tr. 825.
Ms. Hoddersen's frustration with J.R.'s behavior, and particularly with his noises, increased to the point that she repeatedly expressed her frustration with him, "singling [him] out”^[13] in front of the class and in such a way that students could hear,^[14] complaining about his behavior and his noises,^[15] sometimes "huffing," shaking her head or rubbing her hands on her face, and saying with a raised voice and sometimes in an angry or "aggressive" tone:

To J.R.:

stop
J.R. Stop it
J.R. Quiet down
You've got to stop
Stop, please stop. You're disrupting the class. If you don't stop, I'm going to send you to [the case manager's] room

To the teacher assistant:

make him stop
can you please get him to stop

To the class:

This is so frustrating.
This is bullshit.
I can't frickin' take this anymore
I can't take this anymore
I need to get out of here
I am so done with the noises
I just want him out of my classroom

Students testified that Ms. Hoddersen's voice would become louder and that her tone changed from "annoyed" to an "aggressive" or "angry" tone when J.R.'s noisemaking would increase or when he did not comply with her requests to do his work. Tr. 118, 122, 157, 182, 214, 217, 239, 272-273, 395, 420-421.
On one occasion when J.R. was making his noise loudly, Ms. Hoddersen went over to where he was sitting at the table and, after asking him to stop (he didn't stop) and placing her hands on her head in frustration, she flicked him on the arm two times. After he was flicked, J.R. stopped making noises for the duration of this class. Tr. 187-188.^[16]
Over a period of several years, and continuing into the 2017-2018 school year, Ms. Hoddersen used a spray bottle in class to spray water at students.^[17] Tr.135, 192, 220-223, 282-284, 307-308, 328, 358-366, 413, 443, 466-467, 536-542. Her intent was to be humorous and her purpose was to redirect students who were talking, fooling around or not doing their work. Tr. 851. Ms. Hoddersen testified that she felt that her use of the spray bottle "lightened the mood" so that students would get back to work. Tr. 853. She sprayed water from her position at the front of the room toward students and, although she did not intend the water to hit them in the face, sometimes it did. Tr. 851, 223, 366, 466-468, 541-542.
Some students thought that being sprayed by Ms. Hoddersen was fun; others were embarrassed; one student worried that it might happen to her. One student testified that she viewed Ms. Hoddersen's use of the water bottle to spray unruly students as a "misuse of [her] power" (Tr. 284) while another student viewed it as a "powerful gesture" (Tr. 452).^[18]
Ms. Hoddersen testified that she also used a rubber chicken and other rubber toys to throw at students, who would then throw the toys back to her. She testified that throwing these rubber toys helped to keep students' attention (when she was asking questions of the class) and helped to quiet them down. Tr. 865-867.
Shortly after receiving a report on November 21, 2017 that Ms. Hoddersen had "flicked" J.R. and had used inappropriate language in responding to his noises, the Principal of Curtis Corner Middle School interviewed students in Ms. Hoddersen's class to determine if the allegations were true. She typed up her interview notes and then gave them to the Superintendent. Tr. 1633; App. Ex. A
On January 9, 2018 the Superintendent of Schools in South Kingstown recommended that Ms. Hoddersen be terminated for cause, effective immediately. There were three reasons set forth in the letter provided to the School Committee. The first reason was the alleged "flicking" of J.R. and an assertion that Ms. Hoddersen expressed anger and frustration toward J.R. because of the self-soothing noises he made during class. The second and third reasons for the Superintendent's recommendation focused on more general allegations of her use of inappropriate and unprofessional language in the classroom, spraying students and throwing objects at them as a behavior and/or classroom management technique.^[19]
A pre-termination hearing was held on March 20, 2018. Following this hearing, the chair of the South Kingstown School Committee notified Ms. Hoddersen that the Committee had voted to accept the Superintendent's recommendation that she be terminated, effective immediately. The decision of the School Committee indicated that the Superintendent's recommendation had been "based on a lengthy investigation performed by several members of the Administration, eyewitness accounts, and your own interview with [the Superintendent]". The decision noted that "multiple individuals witnessed you singling out [J.R.] for repeated expressions of frustration with behaviors triggered by his disabilities". It went on to indicate that "[I]t was reported from multiple sources that you routinely became frustrated by [J.R.] and raised your voice. The report that Ms. Hoddersen had flicked J.R. was determined by the School Committee to be "credible". S.C. Ex. 2.
Ms. Hoddersen requested a post-termination hearing available to her under R.I. Gen. Laws § 16-13-4. Prior to the hearing conducted by the School Committee on May 30, 2018, her attorney requested "copies of any and all documentation that the School Department intends to utilize and/or rely upon in support of its termination of Ms. Hoddersen's employment, including, but not limited to, complaints, reports, notes, video/audio recordings, witness statements, and/or transcripts". Copies of the requested documentation were not provided at that time. App. Ex. Q.^[20]
In the course of the May 30, 2018 hearing before the School Committee, the Superintendent testified extensively- over the objection of Ms. Hoddersen's counsel- about statements that had been made during interviews that she and the Principal of Curtis Corner Middle School had conducted during their investigation into the allegations against Ms. Hoddersen. The Superintendent had personally interviewed five staff members, including Ms. Hoddersen. Twenty-one (21) students- nine (9) from J.R.'s science class- had been interviewed by the school's Principal. App. Ex. O.
At the conclusion of the Superintendent's testimony, counsel for Ms. Hoddersen inquired [again] as to the existence of witness statements or written summaries that were created as a result of the investigatory interviews. The Superintendent testified that there were none. Counsel followed up with an inquiry specifically as to the existence of a summary of what students had said when interviewed by the Principal, to which the Superintendent responded “. . . not that I've seen.” When pressed as to the existence of a "written report" of the investigation into the allegations against Ms. Hoddersen, the Superintendent stated "There was no report". App. Ex. O, pp. 55-57.
Counsel for the Superintendent and counsel to the School Committee at the time of the post-termination hearing were law associates at the same law firm. App. Ex. P.
On June 6, 2018 the School Committee issued its decision denying Ms. Hoddersen's appeal of her termination. S.C. Ex. 3. She appealed this decision to the Commissioner on June 11, 2018 and requested a de novo hearing.
Prior to hearings scheduled for late September 2018 before the Commissioner's designee, counsel for Ms. Hoddersen filed a Motion for Discovery on August 21, 2018. Among the documents sought from the School Committee at that time were "[a]ny and all documents reflecting any investigation of charges of misconduct against Claudia Hoddersen, including, but not limited to, complaints, reports, notes, video/audio recordings, witness statements, or transcripts". The School Committee filed an Objection, noting that there is no "inherent authority" for the Commissioner to grant pre-hearing discovery in proceedings under Title 16. The Committee argued that the Commissioner acts as a "neutral adjudicator" before whom Ms. Hoddersen could utilize subpoenas for both witnesses and documents for production at the time of hearing utilizing the authority provided in R.I. Gen. Laws § 16-39-8. The hearing officer ruled that compulsory pre-hearing production of documentation requested through subpoenas in this case would result in a more efficient hearing process and granted the request for pre-hearing "discovery". This ruling was issued on August 29, 2018. Thereafter, notes and summaries of those interviewed by the Superintendent and Principal compiled during their 2017 investigation were produced. They were introduced by Ms. Hoddersen and are included in the record as App. Ex. A.

Positions of the Parties:

A. On the Issue of "Good and Just Cause" for Ms. Hoddersen's termination.

South Kingstown School Committee:

To summarize the arguments made by the School Committee in the course of its submission of three post-hearing memoranda: It has proven by a preponderance of the evidence that students watched and witnessed as their science teacher's irritation with J.R.'s self-soothing noises intensified over a period of time in reaction to his non-compliance with directives to do academic work. Unprofessional comments escalated into acts of physical aggression against J.R., including harsh "taps" or a "swat" and finally, a flick witnessed by one of his good friends and classmate. More than one student testified that they saw Ms. Hoddersen put her hands on J.R. in a manner that was aggressive. While this physically-aggressive behavior is sufficient good cause to terminate Ms. Hoddersen's employment, additional related misconduct was uncovered- and proven- that Ms. Hoddersen routinely sprayed students with a water bottle as a way of controlling their behavior. Ms. Hoddersen's admitted spraying of her students with a water bottle constitutes an independent basis for finding good and just cause for her termination. In summary, the record clearly demonstrates that Ms. Hoddersen performed poorly in "managing" J.R.'s and other students' classroom behavior, abdicating her responsibility to carry out this key duty. In doing so, she also violated numerous district policies and state laws, all of which are cited at page 63 of the School Committee's Post-Hearing Brief and explained in more detail in its Reply Brief.^[21] The School Committee submits that the legal standard for determining "good cause" includes "any ground that is put forth by the school board in good faith which is not arbitrary, irrational, unreasonable or irrelevant to the task of maintaining an efficient school system. Perrino v. R.I. Bd. of Regents for Elem. & Secondary Educ., C.A. No. PC-10-4247, 2011 R.I. Super. LEXIS 106 at *11 n.2 (R.I. Super. Ct. Aug. 2, 2011). As more recently enunciated by the Commissioner of Education in Viner v. North Kingstown Sch. Comm., 17-015 at 6 (May 9, 2017: "The School Committee has discretion to determine what constitutes good cause to terminate a teacher, which includes any ground that is not irrational, unreasonable, or unrelated to maintaining an efficient school system.” The South Kingstown School Committee has satisfied its burden by setting forth two independent bases for Ms. Hoddersen's termination- both of which signal her poor performance at managing the classroom behavior of her students. If and when J.R. actually had been disruptive, Ms. Hoddersen was nonetheless obligated as his teacher to respond in a manner that reinforced his "positive behavior" and maintained his dignity. Given J.R.'s limited ability to express himself, he was ill-equipped to complain to his parents or any other adult about Ms. Hoddersen's aggressive behavior toward him- especially the "flick" observed by his good friend. Because of this fact, Ms. Hoddersen's misconduct should be viewed as even more egregious. There is overwhelming good cause to end her employment with the School Department. For this reason, the Commissioner should affirm her termination and deny her appeal.

Claudia Hoddersen:

In the brief filed on Ms. Hoddersen's behalf, her counsel argues that there is no credible evidence of any type of forceful or malicious touching of J.R. and points out that Ms. Hoddersen vehemently denies that she mistreated J.R. at any time. The notion that Ms. Hoddersen would mistreat a special needs student is incredible on its face, considering her many years of good service, her record of performance as a highly effective teacher and the fact that she had successfully made modifications to her lessons and classroom to better serve disabled students in the past. Because direct evidence of the alleged "flick" is so weak, she submits, the district has attempted to bolster its case for termination by creating a false narrative of Ms. Hoddersen as a teacher with intolerance of students with disabilities, by expanding the "cause" for her termination to include allegations of other aggressive conduct, and by "piling on" allegations regarding acts of spraying students with water and throwing miniature rubber toys. Ms. Hoddersen has freely admitted that she sprayed students and used rubber toys for several years, and points out that this was with full knowledge of school staff and without any disciplinary action being taken against her at any time. Her purpose in doing so was not malicious, but rather was intended to be a humorous way of redirecting students and keeping their attention in the classroom.

Despite the argument of the School Committee to the contrary, the Commissioner considers whether there is "just cause" for the termination of a tenured teacher on a de novo basis and is not constrained to defer to a School Committee's prior decision. In fact, it is required that the Commissioner exercise independent judgment as to whether the teacher's misconduct warrants administration of the "capital punishment" of the workplace (termination)- or that it does not. South Kingstown is simply wrong when it attempts to suggest that some deference is due to its own just cause determination, an example of a decision improperly driven by local influence. Ms. Hoddersen asserts that counsel for the district is not content to attempt to "move the goalposts in its favor" by pressing for a more deferential standard of "just cause" but also attempts to "add on" additional bases for Ms. Hoddersen's termination. Among these are

(1) lying about J.R.'s misconduct^[22] (2) poor performance in failing to accept guidance from J.R.'s case manager on implementing strategies to improve his behavior in the classroom and (3)

endangering students by spraying them with a water bottle. Counsel for Ms. Hoddersen argues that any invitation to add on these additional bases for Ms. Hoddersen's termination must be rejected. It is well-established that a de novo hearing before the Commissioner is limited solely to an examination of the reasons and facts put forth in the School Committee's termination decision and cannot encompass “. . . other unstated facts and later-developed reasons.” St. Pierre v. Smithfield Sch. Comm., Comm'r of Educ. 2008 (additional citations omitted).

Ms. Hoddersen submits that there is questionable proof that she exhibited an undue degree of frustration with J.R. and that she flicked him on the single occasion of which she is accused. The hearing officer is urged to take notice of the weaknesses in the students' stories and the fact that their stories changed in significant ways from the time that they first spoke to the Principal in 2017 to the time of their testimony at the hearing at the Commissioner's level in 2018. However, if nonetheless, the hearing officer finds that Ms. Hoddersen did in fact "flick" J.R. on a single occasion, as alleged, this conduct would hardly rise to the level of a terminable offense. A "flick" can be a mere re-direction of an off-task student. This single act is not the type of physical aggression that should end an otherwise-successful career of a highly-effective, long-term teacher. It may be the case that J.R.'s behaviors and disruption of the classroom simply overwhelmed Ms. Hoddersen's capabilities. The narrative with respect to Ms. Hoddersen as a teacher intolerant of students with disabilities who persecuted J.R. for his self-soothing noises should be rejected and her termination overturned by the Commissioner.

B. On the Issue of Due Process before the South Kingstown School Committee

Claudia Hoddersen:

In her post-hearing memoranda, Ms. Hoddersen argues that the School Committee repeatedly failed to provide her with Due Process at the post-termination level of its proceedings. In providing a tenured teacher with the "hearing and appeal" to which they are entitled under R.I. Gen. Laws § 16-13-4, school committees act in a quasi-judicial capacity. The teacher is entitled to a meaningful and fair hearing, in which the decision-making tribunal (the school committee) remains impartial in fulfilling its quasi-judicial role. A school committee must act in this capacity independent from the superintendent, who acts in a prosecutorial role to present evidence in support of the recommendation of dismissal. The prohibition against commingling the prosecutorial and quasi-judicial roles extends to the selection of attorneys. The same individual cannot advise both the superintendent and school committee in a quasi-judicial hearing, argues Ms. Hoddersen, citing Jason R. v. East Greenwich Sch. Comm., Comm'r of Educ. 2001. In Jason R., the Commissioner noted that the use of attorneys from the same firm to serve as counsel to both the prosecutor and the decision-maker was not "best practice" from a due process standpoint and signaled further concern in situations in which the attorneys involved were in a supervisor/supervisee relationship. Id at pages 7-8.

Such was the relationship between the attorney advising the Superintendent recommending Ms. Hoddersen's dismissal (a partner in the firm) and the attorney advising the School Committee (an associate in the same firm). Ms. Hoddersen argues that having a subordinate advise the School Committee on his superior's evidentiary proffers worked to her actual prejudice and violated her right to due process. The attorney's advice to his client (the School Committee) with respect to the admissibility of multi-layered hearsay, and that not of a type that reasonable "men" rely upon in the conduct of their affairs, was to admit this evidence. This ruling was wrong and unfairly prejudiced Ms. Hoddersen. Hearsay was allowed into the record without reservation and was used to establish the specific facts upon which the School Committee based its determination of "just cause" for her termination. This plainly demonstrates denial of Ms. Hoddersen's due process rights.

Secondly, the School Committee failed to provide Ms. Hoddersen's attorney with access to investigative materials that could have exculpated her and allowed her to test the credibility of her accusers. According to the Commissioner's ruling in Viner v. North Kingstown (Comm'r of Educ. 2017) a school committee seeking to dismiss a teacher cannot fail to disclose material factual evidence necessary to the teacher's defense, including such essential information as the identity of his accusers and the nature of the corroboration which allegedly exists, based on the accounts of "multiple individuals". The South Kingstown School Committee, like the North Kingstown School Committee in Viner, could not shield investigative material critical to Ms. Hoddersen's defense simply by ensuring that the evidence was created by or, as in this case, transmitted to, an attorney. As in Viner, the charges against Ms. Hoddersen were vague at the time she was questioned by the Superintendent on December 5, 2017 and they continued to be unclear at the time of her pre-termination hearing before the School Committee on March 20, 2018. The Statement of Cause issued by the Committee following its pre-termination hearing, dated March 28, 2018 (S.C. Ex. 2) failed to provide sufficient detail on allegations of "mistreatment" and "inappropriate language" that was necessary for her to prepare for the post-termination evidentiary hearing held on May 30, 2018. Ms. Hoddersen was required to wait until the hearing before the Commissioner to be provided with crucial information to which she was entitled in order to defend herself: the identity of her accusers and the exact nature of their statements.

There was an additional disadvantage in the School Committee's withholding^[23] of investigatory materials in Ms. Hoddersen's case. Access to these materials at the time the School Committee held its post-termination hearing would have provided Ms. Hoddersen with exculpatory evidence and enabled her to test the credibility of the principal witness against her, the Superintendent. Counsel for Ms. Hoddersen cites the case of Otero v. Bridgeport Housing Authority, 297 F.3d 142 (2nd Cir. 2002) in support of the argument that a mere summary of investigative materials (such as that provided verbally in the Superintendent's testimony on May 30, 2018) does not present an opportunity to point out inconsistencies or exculpatory matters contained in the employer's evidence. The circumstances in Otero are present in this case. The primary witness against Ms. Hoddersen at the School Committee hearing was the Superintendent. She testified almost exclusively as to reports she had received from staff she had interviewed and to reports (verbal) she had received from interviews of students conducted by the Principal. Had Ms. Hoddersen been given access to written investigative materials prior to the School Committee hearing she could have (1) challenged the accuracy of the Superintendent's extensive testimony about the nature of these second-hand reports (2) pointed out inconsistencies with respect to important details and (3) prevented distortions that resulted from the introduction of uncorroborated hearsay that the School Committee admitted into evidence. Her attorney could have argued the weakness of evidence of a statement from only one witness to the alleged "flicking" of J.R., a charge Ms. Hoddersen denied. Her counsel submits that if Ms. Hoddersen had been provided with access to the investigative documents, she may have been able to prevent her termination in the first instance, or she may have persuaded the School Committee to change its mind on appeal, when she would have had the opportunity to cross-examine the Superintendent on critical aspects of her testimony. This is the type of unfair disadvantage resulting from procedures that due process must not allow.

These violations of Ms. Hoddersen's right to due process are not remedied by the de novo hearing at the Commissioner's level. The Viner decision, issued just a short time before Ms. Hoddersen's termination, reinforced the nature of the due process that is owed to Rhode Island teachers before the Commissioner's level, even before termination. South Kingstown's protestations to the contrary, it clearly ignored the Viner ruling by denying Ms. Hoddersen access to the investigative materials against her and thus denied her the chance to effectively cross-examine the Superintendent. It was exclusively uncorroborated hearsay placed on the record by the Superintendent that formed the basis for the School Committee's finding that she had mistreated J.R. This unfairness was compounded by permitting evidentiary rulings to be made by an attorney who was subordinate to the attorney presenting the case against Ms. Hoddersen. This dismissive approach to due process also violates the statutory right of teachers created under Title 16 to a full and fair evidentiary hearing in post-termination hearings before their school committees. If the arguments of the School Committee are accepted, then the School Committee hearing is a meaningless "base-touching" exercise and the Commissioner's rulings on due process at the School Committee are to be ignored. The School Committee's position on issues of due process are untenable and should be rejected, especially when the violation of these rights has worked actual prejudice, as it has in this case. The entire proceedings against Ms. Hoddersen should be declared a nullity and her termination should be invalidated because of the failure of the School Committee to provide her with due process.

South Kingstown School Committee:

At the outset, the School Committee submits that the Commissioner lacks authority to consider and rule upon claims that Constitutional due process have not been afforded to a tenured teacher who has been dismissed. Clearly, such a claim does not "arise under" a law relating to schools or education which is delegated to the purview of the Commissioner under R.I. Gen. Laws §§ 16-39-1 and 16-39-2. The Committee acknowledges that the Commissioner's de novo review of a teacher's termination often includes issues of a school committee's compliance with the termination procedures set forth in Title 16 Chapter 13 of the Rhode Island General Laws and that the Commissioner's analysis of whether there has been compliance with the process set forth in Title 16 is "informed by the principles of constitutional due process.” (citing Hobson v. South Kingstown Sch. Comm., Case No. 0016-89 (May 17, 1989). The Committee notes that Title 16 requires school committees to follow a procedure that Rhode Island courts have held are consistent with the requirements of due process. See Ciprian, 2009 R.I. Super. LEXIS *8, citing Barber v. Exeter-West Greenwich Sch. Comm., 418 A.2d 13, 20 (R.I. 1980). The Committee takes the position that a review of the procedures utilized in its dismissal of Ms. Hoddersen indicates that it conformed in all respects to the requirements of Title 16 as informed by principles of due process. The Committee points out further that since Ms. Hoddersen availed herself of her right to appeal the Committee's post-termination decision to the Commissioner, any due process analysis does not "end" with the Committee- it ends at the conclusion of the administrative review process, which is ongoing.

The School Committee recounts in its memorandum each element of post-termination process that Ms. Hoddersen received to make the point that it met all requirements under Title 16. She was issued a "complete" statement of cause for the Committee's decision to terminate her employment on March 28, 2018. The Committee convened for a post-termination hearing on May 30, 2018, in private at the election of Ms. Hoddersen. She attended the hearing with her legal counsel and union representative. At this hearing she had opportunity to respond to the charges and evidence against her, including an opportunity to present her own witnesses and to cross-examine the Committee's witnesses. The Committee's vote, upholding its prior decision to terminate her employment, was rendered by a majority of the full Committee, all of whom were present for the entirety of the hearing. The Committee made a stenographic record of the hearing and furnished Ms. Hoddersen with a copy of it. At the conclusion of the hearing, the Committee provided a written decision setting forth the reasons and a fair summary of the evidence on which the decision was based. The Committee had concluded (1) that she had "flicked" a non-verbal student with special needs and (2) that she had sprayed students with a water bottle, sometimes in the face, and at other times she had thrown objects at students. Evidence supporting each of these findings was set forth in the Committee's June 6, 2018 decision, together with its conclusion that her actions constituted "misconduct warranting termination for just cause". S.C. Ex. 3. In Senra v. Town of Smithfield, 715 F.3d 34 (1st Cir. 2013) the First Circuit explained “. . . Procedural due process is satisfied where [the employee] was given a meaningful opportunity to respond to the employer's explanation for [her] termination.” Senra at 39. The Committee submits that this standard was met in full by the post-termination procedural rights accorded to Ms. Hoddersen. Neither of the alleged "defects" asserted by Ms. Hoddersen comes even close to a deprivation of due process. And, in light of the comprehensive hearing procedures she continues to receive (before the Commissioner) and the overwhelming evidence demonstrating "good and just cause" for her termination, neither alleged defect entitles her to the relief she seeks- overturn of her dismissal. While the "better practice" may be for the attorney representing a superintendent in termination proceedings to be from a different law firm than counsel to the school committee, the mere fact that they are not does not deprive the teacher of due process.

The Committee cites Jason R., supra, for the proposition that the Commissioner has declined to accept the argument that a dual relationship itself, without more, violates due process standards.

The mere fact that the attorney representing the School Committee had fewer years of experience than counsel to the Superintendent does not render Jason R. inapposite, argues the Committee.

Counsel for the School Committee (at the May 30, 2018 hearing) is presumed to have acted with integrity and there is no basis to conclude that a differential of power between a partner and associate, as in this case, prompted him to act unethically. The Commissioner's ruling in Jason R. that the appellant must demonstrate "actual bias" squarely applies here.

A review of the transcript of Ms. Hoddersen's post-termination hearing (App. Ex. O) confirms that there is no evidence of bias- no differential treatment (of counsel to the Superintendent and Ms. Hoddersen's attorney) by counsel to the School Committee- not a single example. Complaints about his advice to the Committee with respect to its receipt of hearsay evidence at the hearing lack merit because his ruling was, in fact, correct. Many jurisdictions expressly permit the admission of hearsay evidence in teacher termination proceedings before a school committee/board.^[24] What conclusively disposes of this complaint is the fact that each hearsay statement about which the Superintendent testified before the Committee was ultimately independently verified by other (non-hearsay) evidence at the de novo hearing before the Commissioner. The evidence before the hearing officer includes first-hand testimony of fourteen (14) students who witnessed and experienced Ms. Hoddersen's misconduct. Implicitly, the argument is that any unreliability posed to a decision based on hearsay evidence that was accepted by the School Committee has been replaced by reliable evidence and credible testimony of numerous witnesses presented before the hearing officer.

The second basis for the alleged due process violation is that the Committee denied Ms. Hoddersen access to the "reports of witness interviews" that are currently in evidence as Appellant's Ex. A. Ms. Hoddersen's reliance on the Commissioner's May 9, 2017 decision in Viner is misplaced. This decision is both legally and factually distinguishable. Mr. Viner was accused of acting in an inappropriate manner in his dealings with students in his classes. The allegations against Mr. Viner were summarized in the "Viner Report" a copy of which was provided to the North Kingstown School Committee at his post-termination hearing but not to Mr. Viner's attorney. Some, but not all, of the students whose interviews were summarized in the Viner Report testified before the Committee.^[25] The School Committee affirmed its original decision^[26] to terminate Mr. Viner in large part based on the contents of the report. The Commissioner ruled that the failure to provide a copy of the Viner Report to Mr. Viner's attorney, despite repeated requests, violated Mr. Viner's due process rights at the time of his post-termination hearing before the School Committee. The reasoning in finding such violation, the Committee here argues, is that Mr. Viner was not provided with "the identity of his accusers and an adequate description of the specific charges".

The distinctions in Ms. Hoddersen's case are (1) there was no "report" here-only notes taken by the Superintendent and the Principal when interviewing witnesses and (2) the School Committee and Ms. Hoddersen received the same information at the same time when the Superintendent testified about interviews with students and school staff that supported her recommendation. There was no disparity in information. A written report was not provided to the South Kingstown School Committee. Further, Ms. Hoddersen had already received sufficient detail to enable her to mount a defense to the allegations against her. The only detail on which she did not have certainty prior to the post-termination hearing was the identity of the student who observed her "flicking" J.R. Unlike Viner, however, she learned this student's identity at the post termination hearing, as well as the identities of others who had observed her conduct in the classroom. Even armed with this information, Ms. Hoddersen did not address the Committee to deny that she had touched the student as alleged and she did not call a single witness to support her position.

A due process analysis must consider the totality of the process provided to an employee, including both pre- and post-termination proceedings. Here, when Ms. Hoddersen's claim is viewed in light of the de novo hearing she received before the Commissioner, there can be no question that the constitutional mandate of due process has been satisfied. It is this aspect of the due process analysis that the Commissioner has addressed on multiple occasions when it has been found that any defects in post-termination proceedings before the school committee were "cured" by the de novo process before the Commissioner. The School Committee cites Viner and Richardson v. Providence Sch. Bd., RIDE Case No. 0021-05 at 10 (May 25, 2005) for the proposition that a full and fair hearing at the Commissioner's level remedies defects in the process at the School Committee level. A key factor in determining that the hearing before the Commissioner constitutes an adequate remedy is whether the teacher had sufficient notice of the basis for the termination before proceeding to the de novo hearing. In this case, Ms. Hoddersen unquestionably had adequate notice of the allegations against her. In fact, she did not raise her due process claim until after the conclusion of all the evidence in this case, almost as an afterthought.

In summary, the Committee does not agree that its post-termination hearing was procedurally defective in any way. However, even had there been procedural defects at the Committee's post-termination hearing, which there were not, they have been cured- many times over. Case law cited by the Committee in its Reply Brief at pages 61-62 supports the proposition that a post-deprivation administrative hearing in which the Commissioner [of Education] makes de novo findings on disputed factual matters and discipline will satisfy due process requirements.

Furthermore, because the Committee in no way violated the express provisions of Title 16, none of the relief Ms. Hoddersen requests is warranted. Her dismissal must be affirmed.

DECISION

The brevity of this decision belies the fact that hearing of this case extended over eighteen (18) days, with over two thousand (2,000) pages of witness testimony and nearly seventy (70) exhibits submitted into evidence. The task at this level is a determination of whether "good and just cause" supports Ms. Hoddersen's dismissal. The hearing officer must focus on the School Committee's statement of cause (S.C. Ex. 3) which sets forth the basis for the Committee's decision. In a de novo hearing before the Commissioner, the burden is on the School Committee to prove its allegations by a preponderance of the evidence. After this hearing officer's review of this record, as indicated in our Findings of Fact, the conclusion we reach is that the School Committee has proven by a preponderance of the evidence that:

Ms. Hoddersen "singled out" J.R. for repeated expressions of frustration with behaviors triggered by his disabilities, including making unprofessional exclamations in front of her science class.
On one occasion Ms. Hoddersen flicked J.R.'s arm to signal her displeasure with and/or to stop self-soothing noises that he made during class.
As a behavior and/or classroom management technique, Ms. Hoddersen sprayed students with a water bottle, sometimes in the face, and at other times she threw various rubber toys at students' desks, sometimes hitting them.

The determination that the above conduct did in fact occur is based on the credible testimony of several of the students in Ms. Hoddersen's science classes who attested to what they observed (and heard) in class. Some of these students were admittedly friends of J.R. whose heightened attention to Ms. Hoddersen's ongoing and escalating frustration with J.R.'s noises and behavior was coupled with concern for his welfare. Two of these students, A.G. and B.C. had actually taken the step of meeting with J.R.'s case manager on November 8, 2017 because of their concerns regarding Ms. Hoddersen's treatment of J.R. in science class. As noted in Ms. Hoddersen's memoranda, there is some variability between their initial statements to the Principal and their testimony on this record, but without exception, the students who testified were unwavering in affirming what they actually observed and heard in Ms. Hoddersen's classroom. Although there was only one witness to the "flick," his testimony was credible, forthright and unshakable on cross-examination. He recalled the details of this incident precisely. His testimony was consistent with his prior statement to the Principal. Evidence presented by the district as to other physically-aggressive conduct toward J.R. by Ms. Hoddersen, particularly the testimony of K.B. and (another student) K.B. supports this finding of fact as well.

The implications of Ms. Hoddersen's conduct are set forth in the School Committee's decision of June 6, 2018 and in its post-hearing memoranda. Her conduct constituted the expression of an "unprofessional degree of frustration" with a student whose communication skills were quite limited. Both her verbal statements and physical interaction with J.R. violated district policies prohibiting discrimination and harassment based on disability and state regulations on Physical Restraint and the Certification of Educators, as cited in the Committee's decision. Based on the entirety of the record created at this level, the conclusion must be drawn that Ms. Hoddersen's conduct^[27] was inimical to J.R.'s welfare and his acceptance and inclusion in the regular classroom environment, the setting which his current IEP called for and the least restrictive environment to which he is entitled by the IDEA. Educators in Rhode Island are required to respect each student's personal dignity and create a positive, supportive learning environment for all students. Ms. Hoddersen's verbal and physical interactions with J.R. did not create such an environment for him or for other students who were concerned for his welfare.

Ms. Hoddersen's use of a water bottle and rubber toys, although intended to be humorous, constituted unprofessional conduct and violated the Physical Restraint Regulation's prohibition of aversive interventions and strategies.

We find that the grounds advanced and proven by the School Committee constitute "good and just cause" for Ms. Hoddersen's dismissal as required under R.I. Gen. Laws §§ 16-13-3 and 16-12-6. As noted by both parties, state law does not define "good and just cause". The definition offered by the School Committee would establish a low threshold and would create as a standard merely any reason that is not "arbitrary, irrational, unreasonable or irrelevant" to the maintenance of an efficient school system. Utilization of this standard would involve deference to a school committee's decision that is inconsistent with the notion of a de novo hearing by the Commissioner. Neither this definition nor the formulaic approach offered by Ms. Hoddersen, has been the foundation for numerous teacher termination decisions issued by the Commissioner since at least 1989.^[28] Rather, "just cause" has consistently been a flexible concept that takes specific shape only in the context of the facts it addresses. In decisions too numerous to cite issued over the last thirty years, the Commissioner has upheld the discharge of teachers dismissed for ineffective teaching skills, poor classroom management, failure to perform their teaching or case management duties, inappropriate conduct and misconduct, often misconduct involving students. The common thread is that the reason for dismissal must be a substantial one, a reason related to the employee's ability, work performance, or conduct, or the employer's legitimate business needs.^[29] Despite the fact that Ms. Hoddersen has no prior disciplinary history, we find that there is sufficient "good and just cause" for her dismissal, for the reasons previously discussed.

However, the general rule, as established in a long line of Commissioner's decisions on due process issues,^[33] is that the de novo hearing before the Commissioner, as provided under the Teachers' Tenure Act, is a sufficient remedy for due process violations. Thus, the School Committee's dismissal of Ms. Hoddersen is hereby affirmed and her appeal is denied.

Footnotes

[1] Although the Commissioner is required to give deference to a hearing officer's findings that rely upon determinations of witness credibility, if the findings of the hearing officer did not rely upon determinations of credibility, the Commissioner’s review is de novo. See, e.g., Environmental Scientific Corp. v. Durfee, 621 A.2d 200, 206-07 (R.I. 1993).

[2] See note 33, infra, and accompanying text. This general rule has been upheld by Rhode Island Courts. See e.g., Corrente v. Employee Ret. Bd., 2007 R.I. Super. LEXIS 176 at *4, discussing Carey v. Piphus, 435 U.S. 247, 260 (1978) and Ortiz v. Regan, 769 F. Supp. 570, 573 (S.D.N.Y. 1991) (“a proper remedy for the deprivation of procedural due process would be to order the body that failed to provide a constitutionally adequate hearing to hold such a hearing.”); see also Hobson v. R.I. Bd. of Regents, 1998 R.I. Super. LEXIS 53 at *24, 1998 WL 726655 at *7 (R.I. Super. 1998) (“Plaintiff has failed to submit, nor has this court located, any case in which a court allowed an award of back pay or compensation for a procedural violation when the teacher was dismissed because of misconduct, insubordination, incompetence, or any other just cause.”).

[3] References to the transcripts of the hearings before the undersigned will be cited simply with reference to the page, as the pages of the eighteen (18) volumes were numbered sequentially. All cited exhibits were entered into evidence during the hearings before the undersigned.

[4] There is some evidence in the record that J.R. is able to control these noises in other settings. Tr. 1771-1773.

[5] J.R.’s behavioral problems extended beyond science class. His social studies teacher testified that there were days when he “wouldn’t make it through five minutes of [her] class”. He would refuse to do work, engage in disruptive behaviors with other students, be out of his seat and leave the classroom. His case manager was able to address many of these behaviors in social studies class, since he “co-taught” there. Tr. 2162-2169. The social studies teacher testified that she and other members of Team Intrepid recognized that Ms. Hoddersen was having a “difficult time” with [J.R.’s] class due to its composition and the fact that several of J.R.’s friends were in the classroom and [their presence] was a distraction to him. Tr. 2172-2175. Another member of Team Intrepid testified that both his social studies teacher and science teacher were having difficulties with J.R., behaviorally and academically. Tr. 591.

[6] The Assistant Principal also joined in on this meeting. She has an extensive background and expertise in Special Education and chairs all IEP meetings at Curtis Corner Middle School. Tr. 1693.

[7] There is an unresolved factual issue as to exactly how many of the anticipated eight “push ins” actually took place.

[8] J.R. also received various “Supplementary Aids and Services/Program Modifications/Supports described in his IEP. These included teacher assistant support as needed in the general education setting, sensory breaks (spinning), visual prompts and supports and extended time to complete class assignments, all designed to enable him to access the general education program at his school.

[9] The teacher assistant supported not just J.R., but two other students with disabilities as well. Tr. 634-635.

[10] Ms. Hoddersen’s testimony on this point is consistent with the testimony of the students who testified at the time of hearing.

[11] The case manager was “co-teaching” a group of students in a social studies class during this same period of the school day.

[12] He also suggested that J.R.’s behavior would improve if Ms. Hoddersen avoided “power struggles” with him. Tr. 1030-1031.

[13] This is the phrasing used in the School Committee’s decision of June 6, 2018. See S.C. Ex. 3.

[14] Ms. Hoddersen’s verbal expressions of frustration to her class were established by the testimony of students B.C., A.G., H.C., K.B., K.B. (two different students with these initials who testified), and E.L.

[15] There was also testimony from K.B. with respect to a conversation Ms. Hoddersen had with her in class during which Ms. Hoddersen complained about J.R.’s noises. It is unclear whether the School Committee relied on this behavior in setting forth the basis for its termination of Ms. Hoddersen. See S.C. Ex. 3.

[16] It is unclear whether the testimony of student A.G. with respect to this flicking incident is corroborated by the testimony of student H.C., but H.C. testified that he saw Ms. Hoddersen flick J.R “sometime in November.” There is credible testimony from several students in the record about other aggressive physical interactions between Ms. Hoddersen and J.R. in response to his noises, his non-compliance with requests to do his work and/or to close his computer. Evidence of these other acts was admitted only for the purpose of supporting the School Committee’s allegation that the flick A.G. testified he witnessed did in fact occur. It is a “flick” reported by one of Ms. Hoddersen’s students, not other aggressive physical interactions, that is cited in the School Committee’s June 6, 2018 decision to terminate Ms. Hoddersen. S.C. Ex. 3. Thus, although the School Committee established that there were other aggressive physical interactions between Ms. Hoddersen and J.R., no findings of fact with respect to these other acts are appropriate.

[17] The School Committee does not allege that Ms. Hoddersen sprayed J.R. at any time.

[18] This student went on to explain that the spraying showed that Ms. Hoddersen “was superior to us” (kids in her classroom). Tr. 452-453.

[19] The Superintendent’s letter of January 9, 2018 was Attachment 1 to the School Committee’s May 29, 2020 Reply Brief. There does not appear to be any dispute as to the authenticity or relevancy of this document.

[20] There is no evidence in the record that the Chair of the School Committee, or counsel to the School Committee, responded at any time to the two written requests for this information that were sent to the Chair; however, according to her attorney’s affidavit, he was “denied access to those materials”. App. Ex. Q.

[21] at pages 31-37.

[22] A considerable portion of South Kingstown’s case consisted of evidence related to what it claimed was a false disciplinary report filed by Ms. Hoddersen that J.R. had assaulted his aide. Although there was skepticism as to the description of the assault provided by Ms. Hoddersen at the time, J.R. received a penalty for his behavior and the incident remained on his disciplinary record. While Ms. Hoddersen’s account of exactly how the incident happened was cast into doubt by the evidence in this case, there was testimony that the victim of the assault, J.R.’s classroom aide (who was not called as a witness by either of the parties) verified that the incident occurred when she was questioned shortly thereafter by J.R.’s case manager. Tr. 1111.

[23] Throughout briefing on this issue, Ms. Hoddersen refers to being “denied access” to investigative materials. As the record in this case indicates, there was no written denial of access by the School Committee after her attorney twice requested these materials in writing prior to the May 30, 2018 hearing. During the May 30, 2018, the Superintendent testified that such materials did not exist, except for her own written notes that she had given to her attorney.

[24] The School Committee’s citation to Hierlmeier v. North Judson San Pierre Bd. of Sch. Trustees, 730 N.E.2d 821, 826 (Ind. Ct. App.2000) explains that the interest to be protected by such a rule- avoiding the likelihood that students would have to testify on such matters in the presence of their peers or teacher- is a compelling one.

[25] [No footnote text appears in the source PDF.]

[26] Administrative notice is taken that this decision is currently on appeal before the Council on Elementary and Secondary Education.

[27] In its Sur-Reply Brief, the School Committee argues that Ms. Hoddersen’s conduct (the flick) constitutes a criminal assault. The record does not reflect that Ms. Hoddersen was criminally charged based on such an allegation and it is beyond the Commissioner’s authority to make any conclusion in this regard.

[28] The single exception to this statement is found in the definition of “good and just cause” contained in Commissioner Ken Wagner’s 2017 decision in Viner, supra. It should be noted that Commissioner Wagner rejected the finding of his hearing officer that “good and just cause” did not support Mr. Viner’s termination. As previously noted, the Viner decision is currently on appeal.

[29] See National Academy of Arbitrators, The Common Law of the Workplace, BNA (1998) at pages 164-165.

[30] As indicated in our Findings of Fact, the Superintendent testified that these reports were verbal, stating that there were no written summaries of what students had said when interviewed by the Principal. App. Ex. O, pp. 55- 57.

[31] Statements constituting admissions by Ms. Hoddersen obviously did not constitute hearsay.

[32] The Commissioner’s hearing officer found that since he had not been provided with a copy of the “Viner Report” he lacked sufficient notice of the identity of the witnesses against him and the exact nature of the allegations against him. This undermined his ability to respond to these allegations in his post-termination hearing before the North Kingstown School Committee, since the Superintendent relied on the Report in making his recommendation of suspension and dismissal.

[33] A line of decisions starting with Hobson, supra in 1989 and continuing to Mariorenzi v. North Providence School Committee, 18-009K, decision dated March 12, 2019; see also note 1, supra.

Date: December 9, 2020

Angélica Infante-Green,

Commissioner

EXHIBIT A

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

COMMISSIONER OF EDUCATION

CLAUDIA HODDERSEN

SOUTH KINGSTOWN SCHOOL COMMITTEE

18-059K

DECISION

Held: School Committee established that it had "good and just cause" to dismiss Ms. Hoddersen, a tenured teacher.

The record also demonstrates that the de novo hearing conducted at the Commissioner's level did not entirely remedy the School Committee's violation of Ms. Hoddersen's right to a meaningful hearing when it conducted an evidentiary post-termination hearing on the issue of her dismissal as required by R.I. Gen. Laws § 16-13-4.

Date: November , 2020

Travel of the Case:

Jurisdiction to hear this appeal lies under R.I. Gen. Laws § 16-13-4, the statute governing the procedures that accompany the dismissal of a tenured public school teacher in Rhode Island.

Issues:

Is the School Committee's dismissal of Claudia Hoddersen supported by "good and just cause" as required by R.I. Gen. Laws § 16-13-3?
Was Ms. Hoddersen's dismissal by the School Committee accompanied by the procedures required by R.I. Gen. Laws § 16-13-4 and appropriate due process?

Findings of Relevant Facts:

Claudia Hoddersen has been a teacher in the South Kingstown school system since 2004, with the exception of one year in which she taught in Cumberland. In the 2017-2018 school year she was employed as a seventh-grade science teacher on Team Intrepid at Curtis Corner Middle School. Tr. 618-619; 1905; 1977.^[34]
Ms. Hoddersen, a tenured teacher, was formally evaluated during the 2016-2017 school year. She achieved a final effectiveness rating as a "highly effective" teacher, with her evaluator commenting on the "high level of student engagement" in her class and her "well-planned and executed lesson." App. Ex. 1. She had no disciplinary record as of the 2017-2018 school year. Tr. 1733, 1931; 1944. One of her colleagues, also on Team Intrepid, described her as an "outstanding teacher" and "terrific to work with" who contributed to the strong reputation of Team Intrepid in the South Kingstown school system. Tr. 599-602.
In the 2017-2018 school year, one of the students in Ms. Hoddersen's science class was J.R., a student with a disability who had limited verbal intelligibility. He made noises while in class, with varying intensity and frequency, sometimes continuously throughout class. The noises consisted of a "clicking sound," humming and self-talk, all of which were described as "verbal self-stimulation." S.C. Ex. 18. After reviewing J.R.'s educational records and conferring with his former speech pathologist, who had worked with him for a number of years, J.R.'s case manager came to the conclusion that all of these noises were "beyond his control." Tr. 1008-1014, 1022.^[35] In a meeting with Ms. Hoddersen and other members of Team Intrepid on September 19, 2017, J.R.'s case manager explained to her that J.R.'s noisemaking was a self-soothing behavior outside of his control and recommended that Ms. Hoddersen "ignore it" and "allow it to become part of the background" because if she tried to address it, "it's likely to increase". He advised at the time “. . . if your goal is for him to have a calm voice and remain quiet, your best course of action would be to ignore [it]". Tr. 1009.
According to the Individualized Education Program ("IEP") developed for him, J.R. was able to attend to academic tasks for a period of time up to 20-25 minutes. One of his goals for school year 2017-2018 was to increase his ability to stay on task in the classroom. S.C. Ex.6. When "off-task" he exhibited behaviors that included: noncompliance with requests that he do or complete his assigned work, physical contact with his preferred, same-gender peers, and other disruptive behaviors. S.C. Ex. 6, 27, 30 and 33. A "Behavior Incentive Sheet" or "Point Sheet" was utilized in all of his classes to incentivize J.R.'s positive behaviors with respect to his being prepared for class, using a calm voice, completing work and observing boundaries of others' "personal space". S.C. Ex. 9; Tr. 966-973.
Behavioral concerns regarding J.R. in science^[36] were addressed at the September 19, 2017 meeting of Team Intrepid.^[37] His case manager had done two observations of J.R. in science class just prior to this meeting and shared his findings and recommendations with Ms. Hoddersen and the rest of the team. A plan was made for J.R.'s case manager to "push in" to J.R.'s science class two times a week for a one-month period to model behavioral strategies and provide feedback to Ms. Hoddersen and J.R.'s teacher assistant. During the times he "pushed in" to science,^[38] the case manager recommended to Ms. Hoddersen that she use a white board with a visual schedule for J.R.'s work of the day at the beginning of each class, use his Point Sheet to incentivize good behavior, utilize opportunities for J.R to complete tasks with a peer model and provide positive reinforcements to him prior to the end of each class. Tr. 994-1004; During these "push ins" the case manager did not address noise-making or recommend that J.R. be told to "stop" (making noises), because it was outside of J.R.'s control and therefore was not going to be effective. Tr. 1022-1024. S.C. Ex. 18 and 19.
J.R.'s IEP provided for his receipt of instruction in his core academic courses in a small group with a special educator (who was also his case manager) and for his placement in an inclusion setting for his other classes. This placement reflected the decision of his IEP team that J.R.'s educational environment should be a regular class from 40% to 79% of his school day.^[39] This included his placement in Ms. Hoddersen's science class where he had the assistance of a teacher assistant.^[40] S.C. Ex. 6; J.R. received modified academic work created by Ms. Hoddersen on a daily basis. After this work was completed, he would (or at least the plan was that he would) join in the regular education lesson of the day. Tr. 638-639.
The execution of the plan for J.R.'s instruction in science did not go well; Ms. Hoddersen testified^[41] that she (and his teacher assistant) had a hard time getting J.R. to stay on task and to do work (Tr. 648); when J.R. was asked to do any type of work, "it [the self-soothing noises] would become louder and louder and louder". Tr. 649. J.R. would not do his work, would play on his computer, touch other students and take their notebooks, pencils and laptops. When he became disruptive in the classroom- to the extent that she couldn't teach- Ms. Hoddersen sought to clarify what the "proper protocol" to be followed was so that she would not have to call his case manager for assistance. Tr. 649- 651. While the case manager at first responded to her calls for assistance,^[42] after three-five times of leaving his assigned class to respond to her calls, he advised Ms. Hoddersen that he could no longer do so. He told Ms. Hoddersen not to call him anymore. Tr. 1040- 1042; 1080.^[43] From early October to mid- November, Ms. Hoddersen called upon the Dean of Students for assistance with J.R. This occurred toward the end of the class period, from one to three times per week. Tr. 1451. When called, the Dean of Students would remove J.R. from the classroom for the remainder of the class period. Tr. 1454- 1455; 1459. Ms. Hoddersen also sought, without success, to have a different teacher's aide assigned to work "more effectively" with J.R. in her class. Tr. 745-746.
Ms. Hoddersen testified that J.R.'s self-stimulation noises, the clicking and humming, bothered her even though "she knew that he couldn't control it" and that when she would ask him to "quiet down and get back to work" he would often get louder and more agitated. Tr. 659-660. She testified that she didn't remember the case manager advising her to ignore these noises. Tr. 670. She found J.R.'s noises to be a disruption to her teaching and thought that they disrupted the flow of the classroom and [the learning of] the other students. Tr. 681-684. She admitted to becoming frustrated with J.R. and testified that she felt that her concerns and complaints were not being heard. Tr. 825.
Ms. Hoddersen's frustration with J.R.'s behavior, and particularly with his noises, increased to the point that she repeatedly expressed her frustration with him, "singling [him] out”^[44] in front of the class and in such a way that students could hear,^[45] complaining about his behavior and his noises,^[46] sometimes "huffing," shaking her head or rubbing her hands on her face, and saying with a raised voice and sometimes in an angry or "aggressive" tone:

To J.R.:

stop
J.R. Stop it
J.R. Quiet down
You've got to stop
Stop, please stop. You're disrupting the class. If you don't stop, I'm going to send you to [the case manager's] room

To the teacher assistant:

make him stop
can you please get him to stop

To the class:

This is so frustrating.
This is bullshit.
I can't frickin' take this anymore
I can't take this anymore
I need to get out of here
I am so done with the noises
I just want him out of my classroom

Students testified that Ms. Hoddersen's voice would become louder and that her tone changed from "annoyed" to an "aggressive" or "angry" tone when J.R.'s noisemaking would increase or when he did not comply with her requests to do his work. Tr. 118, 122, 157, 182, 214, 217, 239, 272-273, 395, 420-421.
On one occasion when J.R. was making his noise loudly, Ms. Hoddersen went over to where he was sitting at the table and, after asking him to stop (he didn't stop) and placing her hands on her head in frustration, she flicked him on the arm two times. After he was flicked, J.R. stopped making noises for the duration of this class. Tr. 187-188.^[47]
Over a period of several years, and continuing into the 2017-2018 school year, Ms. Hoddersen used a spray bottle in class to spray water at students.^[48] Tr. 135, 192, 220-223, 282-284, 307-308, 328, 358-366, 413, 443, 466-467, 536-542. Her intent was to be humorous and her purpose was to redirect students who were talking, fooling around or not doing their work. Tr. 851. Ms. Hoddersen testified that she felt that her use of the spray bottle "lightened the mood" so that students would get back to work. Tr. 853. She sprayed water from her position at the front of the room toward students and, although she did not intend the water to hit them in the face, sometimes it did. Tr. 851, 223, 366, 466-468, 541-542.
Some students thought that being sprayed by Ms. Hoddersen was fun; others were embarrassed; one student worried that it might happen to her. One student testified that she viewed Ms. Hoddersen's use of the water bottle to spray unruly students as a "misuse of [her] power" (Tr. 284) while another student viewed it as a "powerful gesture" (Tr. 452).^[49]
Ms. Hoddersen testified that she also used a rubber chicken and other rubber toys to throw at students, who would then throw the toys back to her. She testified that throwing these rubber toys helped to keep students' attention (when she was asking questions of the class) and helped to quiet them down. Tr. 865-867.
Shortly after receiving a report on November 21, 2017 that Ms. Hoddersen had "flicked" J.R. and had used inappropriate language in responding to his noises, the Principal of Curtis Corner Middle School interviewed students in Ms. Hoddersen's class to determine if the allegations were true. She typed up her interview notes and then gave them to the Superintendent. Tr. 1633; App. Ex. A
On January 9, 2018 the Superintendent of Schools in South Kingstown recommended that Ms. Hoddersen be terminated for cause, effective immediately. There were three reasons set forth in the letter provided to the School Committee. The first reason was the alleged "flicking" of J.R. and an assertion that Ms. Hoddersen expressed anger and frustration toward J.R. because of the self-soothing noises he made during class. The second and third reasons for the Superintendent's recommendation focused on more general allegations of her use of inappropriate and unprofessional language in the classroom, spraying students and throwing objects at them as a behavior and/or classroom management technique.^[50]
A pre-termination hearing was held on March 20, 2018. Following this hearing, the chair of the South Kingstown School Committee notified Ms. Hoddersen that the Committee had voted to accept the Superintendent's recommendation that she be terminated, effective immediately. The decision of the School Committee indicated that the Superintendent's recommendation had been "based on a lengthy investigation performed by several members of the Administration, eyewitness accounts, and your own interview with [the Superintendent]". The decision noted that "multiple individuals witnessed you singling out [J.R.] for repeated expressions of frustration with behaviors triggered by his disabilities". It went on to indicate that "[I]t was reported from multiple sources that you routinely became frustrated by [J.R.] and raised your voice. The report that Ms. Hoddersen had flicked J.R. was determined by the School Committee to be "credible". S.C. Ex. 2.
Ms. Hoddersen requested a post-termination hearing available to her under R.I. Gen. Laws § 16-13-4. Prior to the hearing conducted by the School Committee on May 30, 2018, her attorney requested "copies of any and all documentation that the School Department intends to utilize and/or rely upon in support of its termination of Ms. Hoddersen's employment, including, but not limited to, complaints, reports, notes, video/audio recordings, witness statements, and/or transcripts". Copies of the requested documentation were not provided at that time. App. Ex. Q.^[51]
In the course of the May 30, 2018 hearing before the School Committee, the Superintendent testified extensively- over the objection of Ms. Hoddersen's counsel- about statements that had been made during interviews that she and the Principal of Curtis Corner Middle School had conducted during their investigation into the allegations against Ms. Hoddersen. The Superintendent had personally interviewed five staff members, including Ms. Hoddersen. Twenty-one (21) students- nine (9) from J.R.'s science class- had been interviewed by the school's Principal. App. Ex. O.
At the conclusion of the Superintendent's testimony, counsel for Ms. Hoddersen inquired [again] as to the existence of witness statements or written summaries that were created as a result of the investigatory interviews. The Superintendent testified that there were none. Counsel followed up with an inquiry specifically as to the existence of a summary of what students had said when interviewed by the Principal, to which the Superintendent responded “. . . not that I've seen.” When pressed as to the existence of a "written report" of the investigation into the allegations against Ms. Hoddersen, the Superintendent stated "There was no report". App. Ex. O, pp. 55-57.
Counsel for the Superintendent and counsel to the School Committee at the time of the post-termination hearing were law associates at the same law firm. App. Ex. P.
On June 6, 2018 the School Committee issued its decision denying Ms. Hoddersen's appeal of her termination. S.C. Ex. 3. She appealed this decision to the Commissioner on June 11, 2018 and requested a de novo hearing.
Prior to hearings scheduled for late September 2018 before the Commissioner's designee, counsel for Ms. Hoddersen filed a Motion for Discovery on August 21, 2018. Among the documents sought from the School Committee at that time were "[a]ny and all documents reflecting any investigation of charges of misconduct against Claudia Hoddersen, including, but not limited to, complaints, reports, notes, video/audio recordings, witness statements, or transcripts". The School Committee filed an Objection, noting that there is no "inherent authority" for the Commissioner to grant pre-hearing discovery in proceedings under Title 16. The Committee argued that the Commissioner acts as a "neutral adjudicator" before whom Ms. Hoddersen could utilize subpoenas for both witnesses and documents for production at the time of hearing utilizing the authority provided in R.I. Gen. Laws § 16-39-8. The hearing officer ruled that compulsory pre-hearing production of documentation requested through subpoenas in this case would result in a more efficient hearing process and granted the request for pre-hearing "discovery". This ruling was issued on August 29, 2018. Thereafter, notes and summaries of those interviewed by the Superintendent and Principal compiled during their 2017 investigation were produced. They were introduced by Ms. Hoddersen and are included in the record as App. Ex. A.

Positions of the Parties:

C. On the Issue of "Good and Just Cause" for Ms. Hoddersen's termination.

South Kingstown School Committee:

To summarize the arguments made by the School Committee in the course of its submission of three post-hearing memoranda: It has proven by a preponderance of the evidence that students watched and witnessed as their science teacher's irritation with J.R.'s self-soothing noises intensified over a period of time in reaction to his non-compliance with directives to do academic work. Unprofessional comments escalated into acts of physical aggression against J.R., including harsh "taps" or a "swat" and finally, a flick witnessed by one of his good friends and classmate. More than one student testified that they saw Ms. Hoddersen put her hands on J.R. in a manner that was aggressive. While this physically-aggressive behavior is sufficient good cause to terminate Ms. Hoddersen's employment, additional related misconduct was uncovered- and proven- that Ms. Hoddersen routinely sprayed students with a water bottle as a way of controlling their behavior. Ms. Hoddersen's admitted spraying of her students with a water bottle constitutes an independent basis for finding good and just cause for her termination. In summary, the record clearly demonstrates that Ms. Hoddersen performed poorly in "managing" J.R.'s and other students' classroom behavior, abdicating her responsibility to carry out this key duty. In doing so, she also violated numerous district policies and state laws, all of which are cited at page 63 of the School Committee's Post-Hearing Brief and explained in more detail in its Reply Brief.^[52] The School Committee submits that the legal standard for determining "good cause" includes "any ground that is put forth by the school board in good faith which is not arbitrary, irrational, unreasonable or irrelevant to the task of maintaining an efficient school system. Perrino v. R.I. Bd. of Regents for Elem. & Secondary Educ., C.A. No. PC-10-4247, 2011 R.I. Super. LEXIS 106 at *11 n.2 (R.I. Super. Ct. Aug. 2, 2011). As more recently enunciated by the Commissioner of Education in Viner v. North Kingstown Sch. Comm., 17-015 at 6 (May 9, 2017: "The School Committee has discretion to determine what constitutes good cause to terminate a teacher, which includes any ground that is not irrational, unreasonable, or unrelated to maintaining an efficient school system.” The South Kingstown School Committee has satisfied its burden by setting forth two independent bases for Ms. Hoddersen's termination- both of which signal her poor performance at managing the classroom behavior of her students. If and when J.R. actually had been disruptive, Ms. Hoddersen was nonetheless obligated as his teacher to respond in a manner that reinforced his "positive behavior" and maintained his dignity. Given J.R.'s limited ability to express himself, he was ill-equipped to complain to his parents or any other adult about Ms. Hoddersen's aggressive behavior toward him- especially the "flick" observed by his good friend. Because of this fact, Ms. Hoddersen's misconduct should be viewed as even more egregious.

There is overwhelming good cause to end her employment with the School Department. For this reason, the Commissioner should affirm her termination and deny her appeal.

Claudia Hoddersen:

(1) lying about J.R.'s misconduct^[53] (2) poor performance in failing to accept guidance from J.R.'s case manager on implementing strategies to improve his behavior in the classroom and (3) endangering students by spraying them with a water bottle. Counsel for Ms. Hoddersen argues that any invitation to add on these additional bases for Ms. Hoddersen's termination must be rejected. It is well-established that a de novo hearing before the Commissioner is limited solely to an examination of the reasons and facts put forth in the School Committee's termination decision and cannot encompass “. . . other unstated facts and later-developed reasons.” St. Pierre v. Smithfield Sch. Comm., Comm'r of Educ. 2008 (additional citations omitted).

D. On the Issue of Due Process before the South Kingstown School Committee

Claudia Hoddersen:

In her post-hearing memoranda, Ms. Hoddersen argues that the School Committee repeatedly failed to provide her with Due Process at the post-termination level of its proceedings.

In providing a tenured teacher with the "hearing and appeal" to which they are entitled under R.I. Gen. Laws § 16-13-4, school committees act in a quasi-judicial capacity. The teacher is entitled to a meaningful and fair hearing, in which the decision-making tribunal (the school committee) remains impartial in fulfilling its quasi-judicial role. A school committee must act in this capacity independent from the superintendent, who acts in a prosecutorial role to present evidence in support of the recommendation of dismissal. The prohibition against commingling the prosecutorial and quasi-judicial roles extends to the selection of attorneys. The same individual cannot advise both the superintendent and school committee in a quasi-judicial hearing, argues Ms. Hoddersen, citing Jason R. v. East Greenwich Sch. Comm., Comm'r of Educ. 2001. In Jason R., the Commissioner noted that the use of attorneys from the same firm to serve as counsel to both the prosecutor and the decision-maker was not "best practice" from a due process standpoint and signaled further concern in situations in which the attorneys involved were in a supervisor/supervisee relationship. Id at pages 7-8.

There was an additional disadvantage in the School Committee's withholding^[54] of investigatory materials in Ms. Hoddersen's case. Access to these materials at the time the School Committee held its post-termination hearing would have provided Ms. Hoddersen with exculpatory evidence and enabled her to test the credibility of the principal witness against her, the Superintendent. Counsel for Ms. Hoddersen cites the case of Otero v. Bridgeport Housing Authority, 297 F.3d 142 (2nd Cir. 2002) in support of the argument that a mere summary of investigative materials (such as that provided verbally in the Superintendent's testimony on May 30, 2018) does not present an opportunity to point out inconsistencies or exculpatory matters contained in the employer's evidence. The circumstances in Otero are present in this case. The primary witness against Ms. Hoddersen at the School Committee hearing was the Superintendent. She testified almost exclusively as to reports she had received from staff she had interviewed and to reports (verbal) she had received from interviews of students conducted by the Principal. Had Ms. Hoddersen been given access to written investigative materials prior to the School Committee hearing she could have (1) challenged the accuracy of the Superintendent's extensive testimony about the nature of these second-hand reports (2) pointed out inconsistencies with respect to important details and (3) prevented distortions that resulted from the introduction of uncorroborated hearsay that the School Committee admitted into evidence. Her attorney could have argued the weakness of evidence of a statement from only one witness to the alleged "flicking" of J.R., a charge Ms. Hoddersen denied. Her counsel submits that if Ms. Hoddersen had been provided with access to the investigative documents, she may have been able to prevent her termination in the first instance, or she may have persuaded the School Committee to change its mind on appeal, when she would have had the opportunity to cross-examine the Superintendent on critical aspects of her testimony. This is the type of unfair disadvantage resulting from procedures that due process must not allow.

South Kingstown School Committee:

The Committee cites Jason R., supra, for the proposition that the Commissioner has declined to accept the argument that a dual relationship itself, without more, violates due process standards. The mere fact that the attorney representing the School Committee had fewer years of experience than counsel to the Superintendent does not render Jason R. inapposite, argues the Committee.

Complaints about his advice to the Committee with respect to its receipt of hearsay evidence at the hearing lack merit because his ruling was, in fact, correct. Many jurisdictions expressly permit the admission of hearsay evidence in teacher termination proceedings before a school committee/board.^[55] What conclusively disposes of this complaint is the fact that each hearsay statement about which the Superintendent testified before the Committee was ultimately independently verified by other (non-hearsay) evidence at the de novo hearing before the Commissioner. The evidence before the hearing officer includes first-hand testimony of fourteen (14) students who witnessed and experienced Ms. Hoddersen's misconduct. Implicitly, the argument is that any unreliability posed to a decision based on hearsay evidence that was accepted by the School Committee has been replaced by reliable evidence and credible testimony of numerous witnesses presented before the hearing officer.

The second basis for the alleged due process violation is that the Committee denied Ms. Hoddersen access to the "reports of witness interviews" that are currently in evidence as Appellant's Ex. A. Ms. Hoddersen's reliance on the Commissioner's May 9, 2017 decision in Viner is misplaced. This decision is both legally and factually distinguishable. Mr. Viner was accused of acting in an inappropriate manner in his dealings with students in his classes. The allegations against Mr. Viner were summarized in the "Viner Report" a copy of which was provided to the North Kingstown School Committee at his post-termination hearing but not to Mr. Viner's attorney. Some, but not all, of the students whose interviews were summarized in the Viner Report testified before the Committee.^[56] The School Committee affirmed its original decision^[57] to terminate Mr. Viner in large part based on the contents of the report. The Commissioner ruled that the failure to provide a copy of the Viner Report to Mr. Viner's attorney, despite repeated requests, violated Mr. Viner's due process rights at the time of his post-termination hearing before the School Committee. The reasoning in finding such violation, the Committee here argues, is that Mr. Viner was not provided with "the identity of his accusers and an adequate description of the specific charges". The distinctions in Ms. Hoddersen's case are (1) there was no "report" here-only notes taken by the Superintendent and the Principal when interviewing witnesses and (2) the School Committee and Ms. Hoddersen received the same information at the same time when the Superintendent testified about interviews with students and school staff that supported her recommendation.

There was no disparity in information. A written report was not provided to the South Kingstown School Committee. Further, Ms. Hoddersen had already received sufficient detail to enable her to mount a defense to the allegations against her. The only detail on which she did not have certainty prior to the post-termination hearing was the identity of the student who observed her "flicking" J.R. Unlike Viner, however, she learned this student's identity at the post termination hearing, as well as the identities of others who had observed her conduct in the classroom. Even armed with this information, Ms. Hoddersen did not address the Committee to deny that she had touched the student as alleged and she did not call a single witness to support her position.

Furthermore, because the Committee in no way violated the express provisions of Title 16, none of the relief Ms. Hoddersen requests is warranted. Her dismissal must be affirmed.

DECISION

Ms. Hoddersen "singled out" J.R. for repeated expressions of frustration with behaviors triggered by his disabilities, including making unprofessional exclamations in front of her science class.
On one occasion Ms. Hoddersen flicked J.R.'s arm to signal her displeasure with and/or to stop self-soothing noises that he made during class.
As a behavior and/or classroom management technique, Ms. Hoddersen sprayed students with a water bottle, sometimes in the face, and at other times she threw various rubber toys at students' desks, sometimes hitting them.

The implications of Ms. Hoddersen's conduct are set forth in the School Committee's decision of June 6, 2018 and in its post-hearing memoranda. Her conduct constituted the expression of an "unprofessional degree of frustration" with a student whose communication skills were quite limited. Both her verbal statements and physical interaction with J.R. violated district policies prohibiting discrimination and harassment based on disability and state regulations on Physical Restraint and the Certification of Educators, as cited in the Committee's decision. Based on the entirety of the record created at this level, the conclusion must be drawn that Ms. Hoddersen's conduct^[58] was inimical to J.R.'s welfare and his acceptance and inclusion in the regular classroom environment, the setting which his current IEP called for and the least restrictive environment to which he is entitled by the IDEA. Educators in Rhode Island are required to respect each student's personal dignity and create a positive, supportive learning environment for all students. Ms. Hoddersen's verbal and physical interactions with J.R. did not create such an environment for him or for other students who were concerned for his welfare.

We find that the grounds advanced and proven by the School Committee constitute "good and just cause" for Ms. Hoddersen's dismissal as required under R.I. Gen. Laws §§ 16-13-3 and 16-12-6. As noted by both parties, state law does not define "good and just cause". The definition offered by the School Committee would establish a low threshold and would create as a standard merely any reason that is not "arbitrary, irrational, unreasonable or irrelevant" to the maintenance of an efficient school system. Utilization of this standard would involve deference to a school committee's decision that is inconsistent with the notion of a de novo hearing by the Commissioner. Neither this definition nor the formulaic approach offered by Ms. Hoddersen, has been the foundation for numerous teacher termination decisions issued by the Commissioner since at least 1989.^[59] Rather, "just cause" has consistently been a flexible concept that takes specific shape only in the context of the facts it addresses. In decisions too numerous to cite issued over the last thirty years, the Commissioner has upheld the discharge of teachers dismissed for ineffective teaching skills, poor classroom management, failure to perform their teaching or case management duties, inappropriate conduct and misconduct, often misconduct involving students. The common thread is that the reason for dismissal must be a substantial one, a reason related to the employee's ability, work performance, or conduct, or the employer's legitimate business needs.^[60] Despite the fact that Ms. Hoddersen has no prior disciplinary history, we find that there is sufficient "good and just cause" for her dismissal, for the reasons previously discussed.

With respect to the issue of deprivation of due process at the post-termination hearing before the School Committee, we find that the Committee's failure to provide Ms. Hoddersen's attorney with the requested investigative materials denied her the procedural due process to which she was entitled as a matter of constitutional right and state law. Her attorney requested such materials on two occasions prior to the hearing scheduled before the School Committee and, according to the record here, received no reply. The Superintendent testified extensively and in detail on direct examination with respect to "verbal reports" she and the Principal had received from students and staff with respect to allegations of misconduct on the part of Ms. Hoddersen.^[61] The Superintendent did not have direct knowledge of the conduct under scrutiny. Without the written summaries on which the Superintendent's hearsay testimony was primarily based,^[62] counsel for Ms. Hoddersen was ill-equipped to challenge the accuracy of her recollection of what had been reported. He could not point out to the members of the School Committee that different conclusions could be drawn (in Ms. Hoddersen's favor) from what students had actually reported when they were interviewed. The failure to provide Ms. Hoddersen's attorney with what would subsequently be identified as written summaries of investigative interviews of students and staff, Appellant's Ex. A, prevented him from conducting effective cross-examination of the single witness presented to the School Committee in support of the allegations of misconduct against Ms. Hoddersen. The failure to provide investigative materials was and is in conflict with the ruling of the Commissioner in the Viner case that was issued on May 9, 2017. Although the disadvantages that resulted from the procedural defects in Viner were somewhat different,^[63] the disadvantages to Ms. Hoddersen were just as significant. The general rule, as established in a long line of Commissioner's decisions on due process issues,^[64] is that the de novo hearing before the Commissioner, as provided under the Teachers' Tenure Act, is a sufficient remedy for due process violations. There are, however, factors present in this case that warrant a departure from this general rule. These factors are: the fact that the School Committee's case was based almost entirely on multi-layered hearsay,^[65] with no corroboration from eye witnesses, and that the existence of written summaries of statements from students who had been interviewed was denied when in fact such summaries existed. The fact that the attorney representing the School Committee was employed by the same law firm as counsel to the Superintendent cannot be totally dismissed, either. Taken in totality, these circumstances deprived Ms. Hoddersen of the meaningful hearing to which she was entitled under state law as informed by principles of due process. This finding does not compel the reversal of the Committee's decision (as a remedy) because, after a de novo hearing, "good and just cause" for Ms. Hoddersen's dismissal is clearly present. It does warrant consideration of an award of monetary damages. The parties are directed to meet and confer to attempt to agree upon additional remedies to address the special circumstances present in this case. If they cannot agree upon such additional remedy within sixty (60) days from the date of this decision, they should so notify the Commissioner and the hearing will be reconvened to decide this issue.

The School Committee's dismissal of Ms. Hoddersen is hereby affirmed. Her appeal is denied in part and further consideration of monetary damages is deferred for a period of sixty (60) days from the date of this decision.

Footnotes

[34] References to the transcripts of the hearings before the undersigned will be cited simply with reference to the page, as the pages of the eighteen (18) volumes were numbered sequentially. All cited exhibits were entered into evidence during the hearings before the undersigned.

[35] There is some evidence in the record that J.R. is able to control these noises in other settings. Tr. 1771-1773.

[36] J.R.’s behavioral problems extended beyond science class. His social studies teacher testified that there were days when he “wouldn’t make it through five minutes of [her] class”. He would refuse to do work, engage in disruptive behaviors with other students, be out of his seat and leave the classroom. His case manager was able to address many of these behaviors in social studies class, since he “co-taught” there. Tr. 2162-2169. The social studies teacher testified that she and other members of Team Intrepid recognized that Ms. Hoddersen was having a “difficult time” with [J.R.’s] class due to its composition and the fact that several of J.R.’s friends were in the classroom and [their presence] was a distraction to him. Tr. 2172-2175. Another member of Team Intrepid testified that both his social studies teacher and science teacher were having difficulties with J.R., behaviorally and academically. Tr. 591.

[37] The Assistant Principal also joined in on this meeting. She has an extensive background and expertise in Special Education and chairs all IEP meetings at Curtis Corner Middle School. Tr. 1693.

[38] There is an unresolved factual issue as to exactly how many of the anticipated eight “push ins” actually took place.

[39] J.R. also received various “Supplementary Aids and Services/Program Modifications/Supports described in his IEP. These included teacher assistant support as needed in the general education setting, sensory breaks (spinning), visual prompts and supports and extended time to complete class assignments, all designed to enable him to access the general education program at his school.

[40] The teacher assistant supported not just J.R., but two other students with disabilities as well. Tr. 634-635.

[41] Ms. Hoddersen’s testimony on this point is consistent with the testimony of the students who testified at the time of hearing.

[42] The case manager was “co-teaching” a group of students in a social studies class during this same period of the school day.

[43] He also suggested that J.R.’s behavior would improve if Ms. Hoddersen avoided “power struggles” with him. Tr. 1030-1031.

[44] This is the phrasing used in the School Committee’s decision of June 6, 2018. See S.C. Ex. 3.

[45] Ms. Hoddersen’s verbal expressions of frustration to her class were established by the testimony of students B.C., A.G., H.C., K.B., K.B. (two different students with these initials who testified), and E.L.

[46] There was also testimony from K.B. with respect to a conversation Ms. Hoddersen had with her in class during which Ms. Hoddersen complained about J.R.’s noises. It is unclear whether the School Committee relied on this behavior in setting forth the basis for its termination of Ms. Hoddersen. See S.C. Ex. 3.

[47] It is unclear whether the testimony of student A.G. with respect to this flicking incident is corroborated by the testimony of student H.C., but H.C. testified that he saw Ms. Hoddersen flick J.R “sometime in November.” There is credible testimony from several students in the record about other aggressive physical interactions between Ms. Hoddersen and J.R. in response to his noises, his non-compliance with requests to do his work and/or to close his computer. Evidence of these other acts was admitted only for the purpose of supporting the School Committee’s allegation that the flick A.G. testified he witnessed did in fact occur. It is a “flick” reported by one of Ms. Hoddersen’s students, not other aggressive physical interactions, that is cited in the School Committee’s June 6, 2018 decision to terminate Ms. Hoddersen. S.C. Ex. 3. Thus, although the School Committee established that there were other aggressive physical interactions between Ms. Hoddersen and J.R., no findings of fact with respect to these other acts are appropriate.

[48] The School Committee does not allege that Ms. Hoddersen sprayed J.R. at any time.

[49] This student went on to explain that the spraying showed that Ms. Hoddersen “was superior to us” (kids in her classroom). Tr. 452-453.

[50] The Superintendent’s letter of January 9, 2018 was Attachment 1 to the School Committee’s May 29, 2020 Reply Brief. There does not appear to be any dispute as to the authenticity or relevancy of this document.

[51] There is no evidence in the record that the Chair of the School Committee, or counsel to the School Committee, responded at any time to the two written requests for this information that were sent to the Chair; however, according to her attorney’s affidavit, he was “denied access to those materials”. App. Ex. Q.

[52] at pages 31-37.

[53] A considerable portion of South Kingstown’s case consisted of evidence related to what it claimed was a false disciplinary report filed by Ms. Hoddersen that J.R. had assaulted his aide. Although there was skepticism as to the description of the assault provided by Ms. Hoddersen at the time, J.R. received a penalty for his behavior and the incident remained on his disciplinary record. While Ms. Hoddersen’s account of exactly how the incident happened was cast into doubt by the evidence in this case, there was testimony that the victim of the assault, J.R.’s classroom aide (who was not called as a witness by either of the parties) verified that the incident occurred when she was questioned shortly thereafter by J.R.’s case manager. Tr. 1111.

[54] Throughout briefing on this issue, Ms. Hoddersen refers to being “denied access” to investigative materials. As the record in this case indicates, there was no written denial of access by the School Committee after her attorney twice requested these materials in writing prior to the May 30, 2018 hearing. During the May 30, 2018, the Superintendent testified that such materials did not exist, except for her own written notes that she had given to her attorney.

[55] The School Committee’s citation to Hierlmeier v. North Judson San Pierre Bd. of Sch. Trustees, 730 N.E.2d 821, 826 (Ind. Ct. App.2000) explains that the interest to be protected by such a rule- avoiding the likelihood that students would have to testify on such matters in the presence of their peers or teacher- is a compelling one.

[56] [No footnote text appears in the source PDF.]

[57] Administrative notice is taken that this decision is currently on appeal before the Council on Elementary and Secondary Education.

[58] In its Sur-Reply Brief, the School Committee argues that Ms. Hoddersen’s conduct (the flick) constitutes a criminal assault. The record does not reflect that Ms. Hoddersen was criminally charged based on such an allegation and it is beyond the Commissioner’s authority to make any conclusion in this regard.

[59] The single exception to this statement is found in the definition of “good and just cause” contained in Commissioner Ken Wagner’s 2017 decision in Viner, supra. It should be noted that Commissioner Wagner rejected the finding of his hearing officer that “good and just cause” did not support Mr. Viner’s termination. As previously noted, the Viner decision is currently on appeal.

[60] See National Academy of Arbitrators, The Common Law of the Workplace, BNA (1998) at pages 164-165.

[61] As indicated in our Findings of Fact, the Superintendent testified that these reports were verbal, stating that there were no written summaries of what students had said when interviewed by the Principal. App. Ex. O, pp. 55- 57.

[62] Statements constituting admissions by Ms. Hoddersen obviously did not constitute hearsay.

[63] The Commissioner’s hearing officer found that since he had not been provided with a copy of the “Viner Report” he lacked sufficient notice of the identity of the witnesses against him and the exact nature of the allegations against him. This undermined his ability to respond to these allegations in his post-termination hearing before the North Kingstown School Committee, since the Superintendent relied on the Report in making his recommendation of suspension and dismissal.

[64] A line of decisions starting with Hobson, supra in 1989 and continuing to Mariorenzi v. North Providence School Committee, 18-009K, decision dated March 12, 2019.

[65] The Superintendent’s testimony about what students told the Principal who then reported their statements to her was double-hearsay. It is often the case that interview reports or written statements from students are utilized at the School Committee level to support allegations of misconduct against a teacher. It should not be inferred from the finding in this case with respect to the impact of the use of double-hearsay from the single witness to alleged misconduct, that reliance upon hearsay consisting of written interviews or written statements obtained from students, in and of itself, violates a teacher’s due process rights. As a general rule, in-person testimony from student witnesses is presented at the hearing at the Commissioner’s level.

For the Commissioner,

/s/ Kathleen S. Murray

Kathleen S. Murray

Hearing Officer

Date:

Angélica Infante-Green,

Commissioner

Claudia Hoddersen v. South Kingstown School Committee

Introduction:

Issues:

Issues: