No Oral Argument in Hurley-Richards Appeal

A quick check on the Hurley-Richards case shows that a "non-oral notice" was filed in mid February. This means that oral arguments will not be taken in the case. This is actually fairly typical. Most appellate reviews, a court administrator tells KSN&C, are conducted through legal briefs.

Rosalind Hurley-Richards, a second grade teacher at Liberty Elementary, was disciplined by FCPS for conduct unbecoming a teacher when she worked at Cardinal Valley Elementary, in February 2009, and an administrative tribunal upheld her suspension.

Hurley-Richards then filed a circuit court action in Fayette Circuit Court (09-CI-5311) appealing the tribunal's decision. The circuit court overturned the tribunal’s suspension of Richards.

Judge Ernesto Scorsone ruled that the conclusions of the tribunal were "without support of substantial evidence on the whole record" and provided "no evidentairy basis on which to support any suspension without pay." The court found Hurley-Richards' conduct reasonable, and the tribunal's conclusions incorrect. Scorsone reasoned that Hurley-Richards was maintaining order in the hallway following a student's attack on his sister and that Hurley-Richards had reason to believe the student posed a risk which would justify physical restraint.

Fayette County Schools Superintendent Stu Silberman and the district is now appealing that decision (2010-CA-000840-MR).

A decision is slated for this month.

Dismissing Rosalind

In his letter dismissing Rosalind Hurley-Richards from her teaching position, Fayette County Schools Superintendent Stu Silberman accused her of outrageous conduct that should shock the sensibilities of any parent, teacher, or school administrator. He alleged that Hurley-Richards,

"physically attacked a student who you had scolded for running down the hall, by grabbing the student, placing your arm around his neck and choking him. You then dragged the student to the principal's office while continuing to keep the student's neck in a choke hold and berating and yelling at him."

KSN&C backstory, here, here and here.

But according to Hurley-Richards’ appellee’s brief, the evidence did not support that claim, and that is why Fayette County Circuit Court Judge Ernesto Scorsone determined that the Tribunal's lengthy suspension of Ms. Richards was not based upon substantial evidence.

Teachers are required to hold students to strict account for their behavior.

"Each teacher ... shall in accordance with the rules, regulations, and bylaws of the board of education made and adopted pursuant to KRS 160.290 for the conduct of pupils, hold students to strict account for their conduct on school premises ... " KRS 161.180(1).

The Tribunal had made findings of fact which were not challenged by Hurley-Richards on appeal, nor by the trial court in its order. The Tribunal found that ZK, the 2nd grade boy in question, "squirmed and twisted. Richards propelled him forward. She was still holding paper and markers in her left arm and hand. . . they proceeded up the office hall with ZK moving under protest. ZK was protesting that she was choking him, and Richards was saying that she was not hurting him."

The Tribunal found that the factual charges against Richards were inaccurate and overstated.
Rosalind Hurley Richards,

“physically restrained a student whom she had scolded for running down the hall. As the student was being guided to the office, he resisted and turned to go back toward the cafeteria. At this point, Richards' arm was across ZK's front, sliding up and around the neck/shoulder area as she physically directed him toward the office. This may have been perceived as choking. She continued to speak loudly to the student."

Although the student was "protesting" that he was being choked as he proceeded down the hall, the Tribunal specifically found that "the adults who were at the situation did not react as if the child was in harm's way."

So, the Tribunal threw out the Superintendent's termination of Hurley-Richards, downgrading it to a suspension without pay.

Turns out, earlier Tribunals have done this sort of thing before – and in Fayette County. Remember Fankhauser v. Cobb, 163 S.W.3d 389 (Ky. 2005). There a Tribunal issued a suspension instead of termination. The court held that "the superintendent's proposed sanction is not binding” on the Tribunal.

Scorsone did not find evidence to support the Tribunal’s suspension either- and particularly not a suspension without pay from February 3, 2009 through June 30, 2010.

As he saw it, Hurley-Richards was exercising her duty as a teacher when she attempted to discipline the little scamp. It was her duty to maintain order in the hallway. ZK was insubordinate and unwilling to walk on his own to the office. Prior to escorting him to the office, Hurley-Richards had to physically separate ZK from his sister, whom ZK was physically harming. The teacher had reason to believe ZK posed a risk to those around him. The school district agreed that the presence of risk to others was a permissible reason for physical restraint.

But Judge Scorsone found that the facts were insufficient and provided “no evidentiary basis on which to support any suspension without pay,” much less one of such duration. Essentially, the Tribunal concluded that the Plaintiff did not choke the child but suspended her anyway. Thus, Scorsone concluded, “the actions of [Hurley-Richards] were reasonable given the circumstances and the conclusions made by the Tribunal were not based on the facts of the situation.”

Whenever the facts of a case do not support the conclusions of the Tribunal, they may be seen by the court as arbitrary. The Kentucky Court of Appeals previously held that, “Unless the action taken by the tribunal was supported by substantial evidence, it is arbitrary and must be set aside.”

The case was headed back to the Tribunal when the district appealed.

Some school district personnel have argued to KSN&C that a different standard of review must be applied to Tribunals because of the language in KRS 13B.150(2), which reads,

"The court shall not substitute its judgment for that of the agency as to the weight of evidence on questions of fact." So the primary question under review is whether the trial court misapplied the standard of review called for in the law.

But when previously asked to rule on this question the Kentucky Supreme Court declined “to depart from the 'substantial evidence' standard.” Thus, the same standard of review would seem to apply to Tribunals.

The district’s appeal is slated for April.

An Imaginary Hurley-Richards Defense

As KSN&C readers know, I'm not an attorney, so take my ramblings with a grain of salt. But I've been trying to imagine the defense attorney JoEllen McComb might use in an attempt to derail the FCPS appeal of Ernesto Scorsone's circuit court ruling in the Hurley-Richards case. (I'm seeking the actual brief, but it will be next week at the earliest before I can see it.)

Bob Chenoweth will argue for the district that the court is bound by KRS 13B.150(2) and that the court cannot substitute its judgement for that of the Tribunal when it comes to the weight of evidence.

13B.150 Conduct of judicial review.
(1) Review of a final order shall be conducted by the court without a jury and shall be confined to the record, unless there is fraud or misconduct involving a party engaged in administration of this chapter. The court, upon request, may hear oral argument and receive written briefs.
(2) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the final order or it may reverse the final order, in whole or in part, and remand the case for further proceedings if it finds the agency's final order is:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Without support of substantial evidence on the whole record;
(d) Arbitrary, capricious, or characterized by abuse of discretion;
(e) Based on an ex parte communication which substantially prejudiced the rights of any party and likely affected the outcome of the hearing;
(f) Prejudiced by a failure of the person conducting a proceeding to be disqualified pursuant to KRS 13B.040(2); or
(g) Deficient as otherwise provided by law.

OK. That seems very straightforward. How can the district lose? Scorsone appears to have done a little evidence weighing himself in determining that the Tribunal's conclusions were "without support of substantial evidence..." The word "substantial" would certainly seem to indicate a weighing of the evidence occurred.

But there are lots of laws and some are higher than others. I wonder if McComb will make a constitutional claim on Hurley-Richards' behalf.

Would granting the district's claim constitute an

unconstitutional breach of the separation of powers?

Here's my imaginary defense:

The Kentucky Constitution is particularly strong on the separation of powers. Authored by a guy named Thomas Jefferson, our Constitutional provisions related to the separation of powers contain explicit provisions which mandate a separation among the three branches of government. At Sec 27:

The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.

That's the part everyone remembers because David Williams and other politicians have made outrageous claims in recent years, in an attempt to extend that separation into more power for the legislature (...or was it just Republicans?).

But there's a second part to the provision at Sec 28:

No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

So my question is: By what right does the legislature constrain the manner in which the courts consider evidence? The power to try cases by hearing evidence and reviewing governmental processes would seem to belong exclusively to the judiciary.

It seems to me that the Kentucky Court of Appeals could choose to reject as improper the limitations placed on the court in KRS 13B.150(2) - a violation of the separtation of powers doctrine - and uphold the lower court ruling.

In LRC v Brown (Ky.) 664 S. W. 2d 907, 912 (1984) the Kentucky Supreme Court declared that the separation of powers doctrine must be "srictly construed."

In Rose v Council for Better Education (Ky.) 790 S.W. 2d. 186, 60 Ed Law Rep. 1289 (1989) that same court reiterated that "the power to legislate belongs to the General Assembly, and the power to adjudicate belongs to the judiciary. It is our goal to honor both the letter and the spirit of that constitutional mandate."

Just as the court is constrained from dictating to the legislature how it goes about its business, the legislature is constrained from dictating to the judiciary how judges must adjudicate.

Did I mention that I'm not an attorney?

Oh, and one more thing. The language in KRS 13B.150(2) says the court can "remand the case for further proceedings..." So, one supposes that if the district wins its appeal, the case would return to the circuit court for final disposition.

The Scoop on Silberman v Hurley-Richards

Teacher Disciplined for
Conduct Unbecoming a Teacher

Related to alleged Mishandling
of a 2nd Grade Child in 2009

Circuit Court Reverses

District's Appeal Set for April

Court records reveal that on-going legal action between Rosalind Hurley-Richards and Fayette County School Superintendent Stu Silberman is a disciplinary matter where Hurley-Richards was accused of, and disciplined for, conduct unbecoming a teacher. It has to do with the alleged mishandling of a child.

Rosalind Hurley-Richards was on bus duty at Cardinal Valley Elementary school on February 3, 2009 when she got into a fuss with a second grader identified as ZK.

Hurley-Richards observed three siblings in the hallway and the two youngest were running. The kids ignored her instructions to walk until the eldest child told the siblings to walk. To correct the misbehavior, Hurley-Richards asked the children to go back up the hall and walk back down properly, but ZK, ran yet again. When Hurley-Richards fussed at the youngster, he delivered that infamous line all teachers love to hear, "You can't tell me what to do!"

The teacher instructed the other two children to go on to breakfast while she spoke to ZK, but the kids got into some kind of fight which involved ZK pulling his little sister's (EK) hair while elder sister MK pulled EK by the hand. Hurley-Richard then put her hand around ZK's waist to separate him. As instructed, the girls EK & MK began to move toward the office but not ZK. He refused, squirming and twisting such that the teacher had to physically propel him up the hallway. As ZK resisted, Hurley-Richards' arm was "across the student's front in a manner that may have been perceived as choking." ZK protested that Hurley-Richards was choking him, which she disavowed. When they reached the office the physical contact ended. Hurley-Richards passed the matter off to the principal Yvonne Beegle. (In the interest of full disclosure, Beagle was a student of mine at UK, of whom I think highly.) An examination by officer David Collins revealed no injury.

But there was an eyewitness who saw things differently. Kindergarten assistant Sheri Jones Hall would later testify that it appeared to her that Hurley-Richards had the child around the neck. But she did not feel compelled to intervene.

Superintendent Silberman determined that Hurley-Richards conduct was inappropriate and he charged her with conduct unbecoming a teacher. On the afternoon of the incident, Hurley-Richards was informed that she was suspended without pay. She was notified on February 27th that her contract was terminated.

Hurley-Richards exercised her right to a hearing before an Administrative Tribunal. The Tribunal met April 23 & 24 and on September 1, 2009. The members were Deborah DeHoag a JCPS teacher; Marilyn Hafley a Lincoln Co administrator, and Franklin County layperson Jane Kelly. The hearing was held in private and took testimony from seventeen witnesses including Hurley-Richards and Silberman.

The Tribunal determined that Hurley-Richards had no intent to harm ZK and that he, indeed, suffered no harm. But they remarked that they found the eyewitness testimony "particularly reliable" and Hurley-Richards to be "generally truthful and reliable" but "influenced by self-interest and later events." The Tribunal rejected the notion that she was delicately guiding ZK forward with a gentle hand on his backpack, as she testified, but found no intent to harm. Still, the Tribunal found that Hurley-Richards exercised poor judgment in continuing to apply force after ZK complained about choking, and ordered her into safe physical management training.

The Tribunal also rejected Silberman's disciplinary action, modifying it to suspension without pay through June 30, 2009.

Hurley-Richards appealed to the Fayette County Circuit Court on grounds that her conduct did not constitute conduct unbecoming a teacher and that her punishment was excessive and beyond the authority of the Tribunal.

On April 20, 2010, Judge Ernesto Scorsone's trial court ruled that the conclusions of the Tribunal were "without support of substantial evidence on the whole record" and provided "no evidentairy basis on which to support any suspension without pay." The court found Hurley-Richards' conduct reasonable, and the Tribunal's conclusions incorrect. Scorsone reasoned that Hurley-Richards was maintaining order in the hallway following ZK's attack on his sister and that she had reason to believe ZK posed a risk which would justify physical restraint.

The district is now appealing the Circuit Court ruling citing KRS 13B.150(2), which reads, "The court shall not substitute its judgement for that of the agency as to the weight of evidence on questions of fact." So the primary question under review is whether the trial court misapplied the standard of review called for in the law.

Joellen McComb and Arthur Brooks represent Ms. Hurley-Richards. Bob Chenoweth represents the district.