It's not easy to fire a teacher in California, especially one with tenure. Woodside Elementary School, a kindergarten to eighth-grade school with 434 students in a very well-funded one-school district, recently found that out the hard way.
After spending 10 months and more than $81,000 trying to follow the state's process for dismissing a tenured teacher, spelled-out in 10,353 words of the education code, the Woodside Elementary School District in mid-November was notified that a three-member hearing panel had voted unanimously to dismiss all charges against the teacher. The district now must either put the teacher back to work, appeal the decision in San Mateo County Superior Court, or pay the teacher to resign.
With that panel's decision, the district's bill has gone up and could end up being well over $350,000.
The convoluted process the district had to follow applies to all tenured teachers in the state, and in California, teachers must either be given tenure by the end of their second year in a school or be asked to leave.
What led the district to this?
The charges the district brought against the teacher, who was in his sixth year of instructing fifth- to eighth-grade physical education at the school, sound serious: immoral and unprofessional conduct and "persistent violation of or refusal to obey" school rules or state laws. (Because all charges were dismissed, the Almanac is not naming the teacher.)
The specific incidents cited in support of the charges sound much less serious: failing to follow school procedures for dealing with doctors' notes, leaving students unsupervised for short periods, favoring athletic students over non-athletic students, using profanity in conversations with students, leaving his walkie-talkie radio on a table instead of keeping it with him, and carrying his cellphone during class.
The teacher admitted to some of the incidents, including leaving his students unsupervised at times and the walkie-talkie incident. He denied others. He said he had never used profanity with students and did not show favoritism, and that he had never carried his cellphone after being told not to. He also argued that the misdeeds that had occurred had not endangered students.
"I'm sure there are teachers out there that deserve to be dismissed and that are nasty and bad," the teacher said in an interview. "I don't put myself in that category whatsoever. I'm not perfect, I don't think any teacher is. I have a passion for teaching. I love the kids. I love the community. I love the school. And I think I got definitely smeared and blindsided."
The district argued that a student could be injured or have a medical emergency while left unsupervised by the teacher.
"Everything we did and everything the district did is focusing on putting the safety of the students first and protecting the students," said school board member Kevin Johnson, a practicing attorney who worked closely with district Superintendent Beth Polito on the case. "We felt like it was important to act and we acted," he said.
To begin the dismissal process, the five-member school board had to approve the request by Superintendent Polito. Once the teacher appealed, the board had to vote again whether to go ahead with a hearing, to be conducted in public before the Commission on Professional Competence, or dismiss the charges. The board will also have to decide what to do next.
Parents at the school said they've heard from their kids for years about the teacher doing some of the things in the charges: leaving students alone in the gym or on the field, making personal calls on his cellphone and favoring natural athletes.
Four parents testified at the hearing, held in September, along with school administrators and the teacher himself. The teacher's attorney did not call any witnesses. One mother said the teacher had ignored a doctor's note and more than once let her daughter participate in P.E. One parent said her son had told her the teacher repeatedly used profanity and put down other students in conversations; another said the teacher had made her son a promise that he did not keep and had told her daughter she'd never be as good a runner as a girl with another body type.
A custodian told about a time when he had mistakenly thrown away a piece of P.E. equipment and noticed the teacher had left his class alone to retrieve the item from a dumpster. The superintendent said she had twice observed P.E. classes from an adjacent classroom and not seen the teacher with his students.
But all the witnesses said they had never personally heard the teacher use profanity and had never seen him put down or treat students unfairly. The teacher said he had been out of the superintendent's sight when she saw his class. Woodside middle school Principal Steve Frank testified he had informally observed the teacher and his class as many as 800 times without witnessing anything inappropriate.
"It is one of the inherent problems with the system that students are the ones who observe, but it's very difficult" to let students testify, Superintendent Polito said.
However, Administrative Law Judge Jill Schlichtmann, who chaired the hearing panel, said it is common to have students testify and that accommodations could be made to make students "comfortable." She warned the district at the beginning of the hearing that hearsay testimony might be excluded from consideration.
"I don't consider statements of students to their parents, middle school students to their parents, to be so reliable that they're not just hearsay," she said. "To the extent that we don't have direct evidence, that's (the district's) problem."
The panel's decision
The panel ruled that the charges were either not proven or did not rise to the level of a firing offense. The decision said that nothing in the charges qualified as immorality, and it dismissed the charges of favoritism and profanity without discussion because the only testimony about them was hearsay -- parents quoting their children.
The decision also criticizes the school for not having breaks between classes, forcing teachers to leave students alone while taking bathroom breaks, returning messages or reading their school email. "The District's failure to provide a passing period for students places an unreasonable burden on teachers, especially the P.E. teachers," the decision says.
Cost to the district
The decision by the hearing panel means the $81,000 the district has already spent is just the beginning. Because the district lost, it is also responsible for the teacher's legal bills and all the costs of the five-day hearing, as well as more bills from its own outside attorney. Superintendent Polito said legal and hearing costs will probably add up to around $180,000.
The district said it has been paying the teacher's full salary of close to $98,000 a year, plus benefits, since they hired a replacement for him in April.
The district will either have to pay the teacher to agree to resign or pay the costs of an appeal if it decides it doesn't want him back. The total could easily surpass $350,000, not including the cost of district staff time that has gone into the case.
Rarely used process
The five-day hearing was conducted on the Woodside campus by the three-person commission headed by an administrative law judge, plus two teachers, one chosen by the district and one by the teacher.
Unlike almost any other personnel matter, the hearing was open to the public. The teacher's parents and his fiancee attended every day, as did parents and school board members and a reporter.
The hearing, all sides would probably agree, was painful. One parent had to repeatedly utter the profanities her son said the teacher had used with him. Potential witnesses spent hours being deposed by the attorneys before the hearing.
The hearing process is so painful, in fact, that most attempts to fire a teacher end in a negotiated settlement that avoids a hearing. The state Office of Administrative Hearings, which oversees the Commission on Professional Competence hearings, says that between 2010 and 2014, an average of fewer than 24 hearings a year were completed. (Other hearings started and were settled before completion.) In 2014, there were 22 completed hearings, in a year that the state had 295,025 public school teachers in 1,022 school districts, according to the California Department of Education.
Woodside Superintendent Polito said the process is so rare "it's almost like a phantom. Most people don't have any direct experience with it." The expense of the process also discourages its use, she said. "Most school districts don't have the wherewithal to address problems" with teachers by going through the hearing process, she said, including adequate time, money, or support by school boards or administration.
Because the process is so rare, she said, much of what teachers and administrators believe they know about it is "misinformation," she said.
The Office of Administrative Hearings does not keep statistics about the outcomes of the hearings, but Superintendent Polito said she had never heard of a San Mateo County district winning a case.
A dream job
The 39-year-old teacher said the public process was additionally painful for him because he grew up in Woodside, which has a population of about 5,500.
He attended Woodside Elementary School, where his mother was a teacher and his father was once a school board member. He plays softball in the town's summer recreation league and lives about 15 minutes from the school.
The teacher said that when he was hired by the Woodside district in 2009, after five years of teaching P.E. at another school, he fulfilled a lifelong ambition. "It was a dream job. I worked with great people. The kids are amazing," he said.
He chose to appeal, he said, rather than leave quietly, because he was afraid his resignation would mean he could never teach again. He also felt he was being treated unfairly, he said.
"I felt I needed to stand up for myself, and the school and the teachers," he said.
The teacher said he participated in three mandated settlement conferences, but refused to budge.
"I'm not giving up my career," he said. "I said I'm going to fight this. I think I'm in the right. I felt that I did the right thing and I still do."
New law mandates reports
The district, however, had no choice about reporting its charges to the state's teacher credentialing organization even if the charges were dropped and the teacher resigned. A state law that went into effect in January says that action taken after an official accusation of misconduct must be reported to the organization. There is an exception: When the charges are dismissed, as they were in this case, the district can come to an agreement with the teacher without reporting him.
Superintendent Polito said she also thinks the district did the right thing, even though she called the hearing "a very inhumane process." She and the school board "did our due diligence" in deciding to fire the teacher she said. "I don't think it was a knee-jerk response."
"We always make decisions based on what is best for students and this process was no different," she said.
Even before the hearing board's decision was released, some parents expressed dismay with the process.
"When the district receives multiple complaints regarding a teacher, warns the teacher and then ultimately fires the teacher, isn't the district simply doing its duty to protect children and provide 'excellent' teachers?" a parent who asked not to be identified emailed. "The amount of time and taxpayer money that is being wasted on this trial is an outrage and does nothing to bolster parents' beliefs in public schools," she said. "By demonstrating the dysfunction that exists in public school employment laws, (this) is driving families toward private schools. What a shame for Woodside."