Disciplinary Tribunal Decision 2005-1
BEFORE THE NEW ZEALAND TEACHERS DISCIPLINARY TRIBUNAL
The Education Act 1989
IN THE MATTER
of charges brought by the Complaints Assessment Committee of the New Zealand Teachers Council
THE COMPLAINTS ASSESSMENT COMMITTEE
DECISION OF TRIBUNAL
Chairman, Mr Kenneth Johnston, Members, Ms Lyn Brash, Ms Irene Cooper, Dr Margaret Franken, Mr Neil Schroff
Tuesday 19 October 2005
Friday 4 November 2005
Ms Gaylene Phipps for the Complainant
By Notice of Charges dated 1 July 2005 the New Zealand Teachers' Council Complaints Assessment Committee charges the respondent with serious misconduct, the particulars of the charge being that:
(a) Between December 2004 and January 2005 the respondent had a sexual relationship with a pupil at the school at which he was then Head of Physical Education;
(b) Between the same dates the respondent sent the student inappropriate text messages.
The respondent admits the allegation of serious misconduct, and the more particular allegations.
The hearing proceeded on the basis of an agreed statement of facts, and it is on the basis set out in that statement that the Tribunal approaches the case. In addition, however, we granted the respondent permission to read a statement at the hearing. Although the respondent was not sworn, and therefore his statement was not evidence, we have nevertheless had regard to it in dealing with the matter.
Both Ms Phipps for the complainant and Ms Carter for the respondent appropriately made more extensive submissions as to the law than one would normally expect in a case such as this. We say "appropriately" because, as Ms Phipps in particular reminded us, this is the first case dealt with by this Tribunal under a new legislative regime. To the extent, however, that those submissions constituted an invitation to us to address issues and make determinations going beyond the strict parameters of this case, it is one which we decline. The proper development of the law is best left to be dealt with on a case by case basis as issues arise. The importance of approaching matters in that way is best illustrated by reference to one of the points touched on by counsel in their submissions, namely the appropriate standard of proof in disciplinary matters. Without going into detail, the Privy Council's decision in Bhandari V Advocates Committee  1 WLR 1442 has long been regarded as authority for the proposition that in all disciplinary matters (except of course where statute dictates otherwise) the appropriate standard of proof is the civil standard of the balance of probabilities, with the rider that the more serious the charge the more cogent the evidence would be expected to be. The recent decision of the Privy Council in Campbell v Hamlet, Unreported, 25 April 2005, suggests that, at least in the case of disciplinary proceedings in which the charge is one which might amount to a criminal offence, the position may well be changing. However, consideration of the proper standard of proof to be applied by this Tribunal is a matter which should await a case which raises the point directly, and where the Tribunal has the benefit of detailed argument from both sides. We decline therefore to express any view on the point at this stage, in a case where the charge of serious misconduct is admitted, and where, therefore, the issue of the standard of proof does not arise.
The Factual Background:
The agreed statement of facts records that during the scholastic years 2003 and 2004 the respondent was the Head of Physical Education at a provincial secondary school The third party with whom he admits having an intimate relationship (to whom we will henceforth refer to as "Ms A") was a senior pupil at the school, and in the respondent's physical education class. During the 2004 scholastic year the respondent was also the athletics coach at the school's Sports Academy. By the end of that year, Ms A was the only pupil under his guidance in that capacity.
During the relevant period of time, Ms A was 17.
During the last quarter of 2004 the respondent and Ms A embarked upon a sexual relationship. This continued on into the first quarter of 2005, Ms A having left the school at the end of 2004.
The agreed statement of facts contains examples of intimate text messages sent by the respondent to Ms A. No useful purpose would be served by quoting these here, but we record that they were not of an offensive nature.
Also in the first quarter of 2005 Ms A's mother complained to the school about the relationship. The school embarked upon an investigation, and both the respondent and Ms A appear to have been entirely open about the situation.
The respondent resigned from his position at the school.
As required by sI39AK(2) of the Act, the school reported his resignation to the New Zealand Teachers' Council.
Shortly after this, the respondent requested deregistration pursuant to s127(1)(e) of the Act, and his name has been removed from the Register.
Having investigated the matter, the New Zealand Teachers Council concluded that there was prima facie evidence of serious misconduct on the respondent's part, and accordingly referred the matter to the Tribunal pursuant to s139AT(4) of the Act as it was required to do. It was in this way that the Complaints Committee came to lay the charge referred to at the outset.
In his statement which he read to the Tribunal, the respondent sought to put a complexion on the bare facts as we have outlined them. There were three essential features to this:
(a) First, the respondent described the situation at the school as being one which resulted in his being under some pressure. This pressure arose as a result of a number of things including the overall school environment, the status that his predecessor as Head of Physical Education had enjoyed, his workload, his relatively immaturity (although he was and is in his early 30s) , the pressure he put on himself to achieve within the school environment, a marriage which was under pressure at the time, his inability to get assistance in the form of counselling, all of which was directed at suggesting - and we accept - that he was himself somewhat vulnerable at the time;
(b) Second, the respondent emphasised that his relationship with Ms A was not a short term one. He said that they fell in love, that the attraction was mutual, and that there was nothing predatory or unhealthy about it. He explained that since the events of early 2005, he and Ms A had moved to another part of the country, and were living happily in a de facto marriage. He explained that Ms A is attending school and intends in 2006 to go to university. He said that Ms A's family, who of course had made the original complaint, were now reconciled to the situation;
(c) Finally, the respondent acknowledged the unacceptability of his behaviour, but asked us to accept that the circumstances were singular and that we should not take steps which would preclude him from returning to teaching at some stage in the future. In this context, he gave the Tribunal an assurance that no such behaviour had occurred in the past or would occur in the future.
Finally in relation to the factual situation, we note that the respondent was supported at the hearing by Ms A who, although she did not speak, by her presence reinforced the respondent's position.
The Tribunal's Responsibility:
Section 139AT of the Education Act provides that if, in the course of an investigation by a Complaints Assessment Committee, that Committee is satisfied on reasonable grounds that a teacher was engaged in serious misconduct, that the Committee ' . .must:
(a) refer the matter to the Disci1inary Tribunal for a hearing; and
(b) send a notice to the teacher concerned setting out the charge of serious misconduct against him or her.
It follows that the Tribunal's primary function is to determine whether or not that charge of serious misconduct is made out.
Ms Phipps drew our attention to the fact that s139AW, which sets out the Disciplinary Tribunal's powers, provides as follows:
"(1) Following a hearing of a charge of serious misconduct, or a hearing into the conduct of a teacher, the Disciplinary Tribunal may do any 1 or more of the following:
(a) any of the things that the Complaints Assessment Committee could have done under section 139AT(2);
(b) censure the teacher;
(c) impose conditions on the teacher's practising certificate or authority for a specified period;
(d) suspend the teacher's practising certificate or authority for a specified period, or until specified conditions are met;
(e) annotate the register or the list of authorised persons in a specified manner;
(a) (f) impose a fine on the teacher not exceeding $3,000;
(f) require the deregistration (as defined in section 129(6)) of the teacher;
(g) require any party to the hearing to pay costs to any other party;
(h) require any party to pay a sum to the Teachers Council in respect of the costs of conducting the hearing.
(2) Despite subsection (1), following a hearing that arises out of a report under section 139AP of the conviction of a teacher, the Disciplinary Tribunal may not do any of the things specified in paragraphs (d), (f), (h) or (i) of subsection (1).
(3) A fine imposed on a teacher, and a sum ordered to be paid to the Teachers Council under subsection (1) (i), are recoverable as debts due to the Teachers Council."
The point Ms Phipps emphasised was that the legislation does not expressly say that the Tribunal is only entitled to exercise the powers set out in ss(1)(a)- (i) inclusive in the event that at the conclusion of any such hearing the Tribunal reaches an adverse conclusion. In our view, that must be the case. We are comforted in that conclusion by a case to which Ms Phipps referred us namely Doherty v Veterinary Council of New Zealand  NZAR 729 in which Doogue J reached that conclusion in the context of disciplinary proceedings pursuant to the Veterinarians Act 1994.
Of course that is not to say that before it can exercise any of the powers referred to earlier, the Tribunal needs to conclude that the teacher is guilty of serious misconduct. It may conclude that the teacher is guilty of something less than serious misconduct (ie misconduct which does not amount to serious misconduct) and yet decide to exercise one or more of the powers conferred by the provision. But, at very least, the Tribunal needs to reach an adverse finding against the teacher before exercising any such powers. To exercise such powers in the absence of an adverse finding would not be in accordance with the requirements of natural justice, with which s139AQ(6) requires the Tribunal to comply.
Here of course the allegation of serious misconduct is admitted. Notwithstanding that admission, because of the way Ms Phipps and Ms Carter developed their submissions, we think we should say something more about the notion of serious misconduct in the context of intimate relationships between teachers and pupils. Without wishing to be categorical about this, the Tribunal finds it difficult to conceive of any situation in which a teacher enters into a sexual relationship with a student who is attending the school at which that teacher is employed which would not amount to serious misconduct on the teacher's part. There may be such situations, and we would not wish to preclude the possibility. But, they are hard to imagine, and, on any view, would be very few and far between. On the facts, this is certainly not such a situation. In short, we think that this respondent's admission of the charge of serious misconduct is appropriate.
Having said that, we do not think that it necessarily follows that in every such case of serious misconduct the Tribunal should feel itself compelled to impose the most serious penalty namely an order for deregistration. In our view, it is important that the particular circumstances of every case are considered with care, and that the Tribunal's response reflects those circumstances.
The Act defines serious misconduct in s2 as follows:
"Conduct by a teacher:
1. Adversely affects, or is likely to adversely affect, the wellbeing or learning of one or more students; or
2. Reflects adversely on the teachers ' fitness to be a teacher; and
(b) Is of a character and severity that meets the Teachers Council's criteria for reporting a serious misconduct."
The New Zealand Teachers' Council's rules relating to the making of reports and complaints set out the criteria which the Council should have regard to in determining whether or not to report conduct as serious misconduct. Rule 9 provides:
"Criteria for reporting serious misconduct-
(1) The criterion for reporting serious misconduct is that an employer suspects on reasonable grounds that a teacher has engaged in any of the following:
(a) the physical abuse of a child or young person (which includes physical abuse carried out under the direction, or with the connivance, of the teacher):
(b) the sexual abuse of a child or young person (which includes sexual abuse carried out under the direction, or with the connivance, of the teacher):
(c) the psychological abuse of a child or young person, which may include (but is not limited to) physical abuse of another person, or damage to property, inflicted in front of a child or young person, threats of physical or sexual abuse, and harassment:
(d) being involved in an inappropriate relationship with any person under the age of 16 years;
(e) being involved in an inappropriate relationship with a student with whom the teacher is, or was when the relationship commenced, in contact with as result of his or her position as a teacher:
(f) the neglect or ill-treatment or any child or young person in the teacher's care:
(g) the neglect or ill-treatment of any animal in the teacher's care:
(h) theft, or fraud:
(i) involvement in the manufacture, cultivation, supply, dealing, or use of controlled drugs:
(j) permitting, or acquiescing in, the manufacture, cultivation, supply, dealing, or use of controlled drugs by any child or young person:
(k) viewing, accessing, or possessing pornographic material while on school premises or engaged on school business:
(I) viewing, accessing, or possessing pornographic material that depicts children or young persons or that depicts animals engaged in sexual acts with humans:
(l) breaching the school's standards or rules concerning the use of alcohol at the school or while on school business:
(m) any other act or omission that could be the subject of a prosecution for an offence punishable by imprisonment for a term of 3 months or more.
(2) Physical, sexual, or psychological abuse is reportable whether it occurs as-
(a) a single act; or
(b) a number of acts forming part of a pattern of behaviour, even if some. or all. of those acts, viewed in isolation, would be minor or trivial.
(3) In this rule, "school" includes an early childhood centre."
Ms Carter urged upon us that the definition in the Act was a cumulative one in the sense that in order for us to determine in any case that there was serious misconduct it was necessary to conclude both that one of the circumstances set out in (a) (i) and (ii) applied and that the character and severity of the conduct meets the Teachers Council's criteria for reporting. In our view, that submission is correct.. Having said that, it seems to us that there is a degree of flexibility contained in both the s139AB definition, and the New Zealand Teachers' Council rules. For example, that part of the definition which requires the Tribunal to conclude that the behaviour ' . . adversely affects, or is likely to adversely affect, the wellbeing or learning of one of more students..." or ' . .reflects adversely on the teacher's fitness to be a teacher. . . " may well in some cases require the Tribunal to examine pre-existing authorities and consider the application of the tests contained in those. In this regard, we are thinking of cases such as Ongley v Medical Council of New Zealand (1984) 4NZAR 369, to which Ms Phipps referred us. It is unnecessary to take the point any further in this case.
That leads directly to the question of the appropriate approach for the Tribunal to take in this case.
In this regard, Ms Phipps and Ms Carter referred us to a number of relatively recent authorities, all of which were from other jurisdictions. We have reviewed the various Victorian Institute of Teaching decisions in particular, which have assisted us. However, in relation to issues of penalty, there is a limit to the assistance that one can derive from precedent. In the end, this Tribunal must determine what it regards as a proper and appropriate response, having regard to the legal framework within which it is operating, and the facts of the particular case.
We have already indicated that in our view this respondent's behaviour undoubtedly constituted serious misconduct. However, we think that his conduct is properly regarded as being at the lower end of the scale for this type of serious misconduct. The following factors have influenced us in reaching that conclusion:
(a) We accept that the respondent's behaviour was not predatory in any sense. We accept that his relationship with Ms A was a one-off;
(b) We accept that both the emotional relationship which developed between the respondent and Ms A towards the end of 2004, and the sexual relationship which evolved out of this, were a mutual and consensual;
(c) There was no evidence directed at establishing that the relationship had any adverse consequences from Ms A's point of view;
(d) We recognise that the relationship has continued, and accept that it may well be, or evolve into, a long term relationship;
(e) We take into account that whilst Ms A' s family was at first understandably unhappy about, and no doubt shocked by, this relationship, they have become reconciled to it;
(f) We accept, as the respondent told us in his statement, that he is providing Ms A with ongoing support, generally and in relation to her education;
(g) We accept also, that the respondent was under some pressure at the relevant time for the reasons we have already outlined, although we do not place huge weight on this factor;
(h) We take into account that the respondent accepted responsibility for his actions from the outset, and in particular that he resigned from his position at the school and sought voluntary deregistration, which we treat as evidence of his acceptance of responsibility for his actions. Added to this of course the respondent has, from the outset, admitted that his actions were unacceptable. We are satisfied that the respondent understands that his actions were completely unacceptable, and why.
Having regard to all of the above considerations, our conclusion is that the most appropriate approach is to censure the respondent pursuant to s139AW(1)(b) of the Act, and require him to make a contribution of $1,500 to the costs of this hearing pursuant to s139AW(1) (i).
We expressly record that we have considered making an order for the respondent's deregistration pursuant to s139AW(1)(g), but decided not to do so The respondent has sought voluntary deregistration. Of course, the Tribunal quite understands that, having done that, the respondent can make an application for reregistration at any time. We record that we would not expect such an application would be considered favourably by the New Zealand Teachers' Council until, at the earliest, the commencement of the 2007 scholastic year. We also considered whether to impose a fine on the respondent pursuant to sI39AW(1)(f). However, the evidence was that the respondent and Ms A are in somewhat impecunious circumstances, and we do not think that the imposition of a fine would serve any useful purpose. As to costs, the Tribunal accepts that $1,500 is a modest contribution to the costs of the hearing, and lower than we would normally expect to order. However, once again, having regard to the financial circumstances of the respondent and Ms A, that appeared to be an appropriate sum.
In the result, the Tribunal censures the respondent for his serious misconduct pursuant to sI39AW(1)(d), and requires him to pay the sum of $1500 to the New Zealand Teachers' Council in respect of the costs of this hearing pursuant to s139AW(1)(i).
DATED this 4th day of November 2005