Disciplinary Tribunal Decision 2006-2
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 NEW ZEALAND TEACHERS' DISCIPLINARY TRIBUNAL
|Tribunal:||Mr Kenneth Johnston (Chairman), Ms Lyn Brash, Dr Margaret Franken, Ms Lorraine Skiffington and Mr Steve Wood|
|Hearing:||12 December 2005|
|Decision:||15 February 2006|
Jenny Gibson for Complainant
Nicole Carter for Respondent
By notice of charge dated 5 September 2005, the Complaints Assessment Committee of the New Zealand Teachers' Council charges the respondent with serious misconduct, particulars of the charge being as follows:
". . .from about June 2003 to April 2004, when [the respondent] was a teacher and [a student to whom we will refer as Miss A] was a Year 11, then Year 12, student, engaged in an inappropriate relationship with [Miss A] in ways including:
3.1 Sending her inappropriate letters and/or poetry; and/or
3.2 Holding her back for private discussions; and/or
3.3 Confiding personal information about his personal life to her; and/or
3.4 Telephoning her when he believed she was alone; and/or
3.5 Touching her inappropriately.
4. This conduct, either separately or cumulatively, amounts to serious misconduct pursuant to s139AB of the Education Act 1989."
The matter came on for hearing on 12 December 2005. Prior to that, counsel for the respondent, Ms Carter, had indicated that the charge of serious misconduct was to be admitted by XXXXXXXXX and the matter proceeded on an undefended basis.
Counsel provided the Tribunal with a memorandum signed by them both on behalf of their clients setting out the factual background. From this it emerges that during the 2003 and 2004 scholastic years XXXXXXXXX was employed at a provincial co-educational secondary school. He was the Head of Department of English. XXXXXXXXX XXXXXXXXX had only three years' experience prior to be appointed as a Head of Department. Miss A was a student at the school. She turned 16 during 2003 and 17 during 2004. During these two years XXXXXXXXX sent Miss A a number of letters, examples of which we were provided with. In the main these were not of an offensive nature, but had an overtly romantic tone. XXXXXXXXX also sent Miss A a number of poems which, likewise, were of a romantic character. XXXXXXXXX confided information to Miss A about his personal life and family relationships. XXXXXXXXX telephoned Miss A on at least one occasion when he believed she was alone. He also provided Miss A with his telephone contact details. The only physical contact between XXXXXXXXX and Miss A occurred when XXXXXXXXX passed letters, poems or other material to her. Their hands brushed. It is hard to know what if any weight to put on this. It is difficult to see how that would not happen in the passing of documentation. Finally, the agreed statement of facts recorded that on at least one occasion XXXXXXXXX suggested to Miss A that she should not disclose of their relationship to anyone else.
Miss A apparently kept her own counsel about these matters for some time but, some time after these events, having discussed the matter with a friend or friends, decided to report the matter to the school, and did so. As a result of that, the school carried out an investigation. XXXXXXXXX admitted everything set out in the agreed statement of facts and summarised above, and resigned his position.
This matter came before the New Zealand Teachers' Council as a result of a mandatory report from the school dated 11 May 2005.
At the conclusion of the agreed statement of facts it was recorded not only that XXXXXXXXX XXXXXXXXX accepted that his behaviour amounted to serious misconduct but also that his conduct had adversely affected the wellbeing of the student in question.
XXXXXXXXX spoke directly to the Committee. He elected not to give evidence but to read a prepared statement, and was therefore not sworn and was not cross examined on that statement.
Some objection was raised by Ms Gibson to aspects of this statement, and the Tribunal thinks it appropriate to comment on the issues raised.
In any case in which there is an agreed statement of facts, signed by or on behalf of the parties, the Tribunal will take that statement as being the primary factual foundation upon which it will determine the matter. It is inappropriate for either party to participate in putting an agreed statement of facts before the Tribunal, and then lead evidence which contradicts that statement of facts. However, there is no difficulty with a respondent putting additional material before the Tribunal by way of mitigation. The Tribunal regards the material put before it by and on behalf of XXXXXXXXX in this case as being unobjectionable.
There is a further point. As already recorded, XXXXXXXXX choose not to give evidence and expose himself to cross examination, and provided this material by way of a prepared statement. That of course is his prerogative, but a respondent adopting that course must expect that the Tribunal will regard the material put forward by him as being of less weight.
XXXXXXXXX statement to the Tribunal traversed the background. Amongst the matters which he touched on was the fact that from a comparatively early age he has suffered from a depressive condition apparently known as "social anxiety disorder". He has had treatment for this both prior to and following the incidents with which we are concerned. He tells us that one of the characteristics of his particular disorder is that it results in a need for external affirmation and that, with the benefit of hindsight, that is what he was seeking from Miss A. He also emphasised that he was never interested in a sexual relationship with Miss A, which we accept. Generally, he sought to say that this relationship, although he accepted it crossed the boundary of propriety for a teacher, was more in the nature of a romantic friendship than anything else.
For the complainant, Ms Gibson relied on the agreed statement of facts, emphasising XXXXXXXXX acceptance that his behaviour amounted to serious misconduct and that it adversely affected the wellbeing and learning of Miss A. She emphasised XXXXXXXXX position of power and trust and his abuse of that position. She submitted that it was inappropriate for any teacher to send letters and poems expressing feelings of love and the like to a student. She made the point that this was a pattern of behaviour which continued over months, rather than an isolated incident. She said that the evidence supports the suggestion that XXXXXXXXX was seeking to draw Miss A into his personal life. In so far as the physical component of the relationship referred to earlier was concerned, she said that it was inappropriate for a teacher to use the handing of written material to a student as an opportunity to make physical contact. She accepted that this case was not one which reached the level of seriousness of some cases which come before this Tribunal, but said that that went to penalty, not to the question of whether there was serious misconduct. As to penalty, Ms Gibson simply referred to the range of options available to the Tribunal. Finally, she sought costs on the complainant's behalf pursuant to s139AW(1)(i).
For XXXXXXXXX, Ms Carter made relatively extensive submissions, drawing on the agreed statement of facts, and XXXXXXXXX statement to us. She emphasised the "platonic" nature of the relationship, whilst at the same time accepting that it was inappropriate. She emphasised XXXXXXXXX depressive condition and that his particular disorder was characterised by overwhelming anxiety and excessive self consciousness in social situations, suggesting that that was what had driven him to seek out affirmation from a teenager. She also emphasised the fact that XXXXXXXXX was under pressure in both his home and working environment at the time which may have added to his anxiety. On those bases, she went on to characterise their relationship as one of friendship rather than anything else. She placed some weight on the fact that XXXXXXXXX had in the end recognised the inappropriateness of the relationship, and, as she put it, "self corrected". We have to say that we wonder about that submission. It seems to us from a reading of the letters and so forth that XXXXXXXXX cessation of his approaches to Miss A may have resulted more from her lack of response than any realisation on his part that what he was doing was inappropriate. But, that is speculative, and we are obliged to give XXXXXXXXX the benefit of the doubt on the point. Miss Carter went on to emphasise that when this matter came to light as a result of Miss A's complaint to the school, XXXXXXXXX acknowledged his wrongdoing and tendered his resignation immediately. She added that, since then, he has been deeply remorseful about what had happened, and has received counselling for his condition. Amongst the material which XXXXXXXXX put before us, and Ms Carter referred to in her submissions, are a number of very positive references from former personal and professional colleagues of XXXXXXXXX, and we have taken due note of these. We mention that XXXXXXXXX wrote to Miss A's parents acknowledging his responsibility, and apologising in very fulsome terms for his behaviour, and that Miss A's parents have responded in a positive way. We mention also that XXXXXXXXX former wife, with whom he was living at the time of these incidents, but from whom he has since separated, nevertheless felt able to provide a positive reference in relation to his character. Finally, we mention that we have seen a report from a Mr Sky Williams who is apparently a counsellor from whom XXXXXXXXX has received assistance.
Ms Carter took us through the test for serious misconduct as set out in s139AB of the Act, and then emphasised that we are obliged to exercise the powers that we have under Part 10A of the Education Act 1989 for the purposes of that legislation, and in particular that our role is not that of a criminal court imposing an appropriate punishment, but rather of determining an outcome best designed to bring about the purposes of the Act. We do not need to go through those submissions here, as we would have thought it was beyond any serious argument that our role is determined by the provisions of the legislation, and must be directed at giving effect to those.
Towards the conclusion of her submissions, Ms Carter emphasised the following points which she urged us to regard as mitigating factors:
"• XXXXXXXXX accepted immediate responsibility for his wrongdoing and he resigned.
- XXXXXXXXX did not engage in predatory conduct.
- The relationship although inappropriate was platonic.
- There was no need for [Miss A] to give evidence at either the school disciplinary hearing, the Complaints Assessment Committee hearing or the Disciplinary Hearing Tribunal due to XXXXXXXXX acknowledgement of his wrongdoing.
- There is no conflicting evidence in this case.
- XXXXXXXXX actions were not predatory in nature _ this differs from other cases referred to. As soon as he realised his intentions were unwanted he did not pursue the matter any further.
- XXXXXXXXX was at a particularly vulnerable point in his career _ he was a third year teacher with Head of Department responsibilities and working long hours. He also had a young family and was experiencing marital problems.
- There is no evidence of concerns regarding the safety of other colleagues or students.
- It is extremely unlikely XXXXXXXXX will re-offend in this way again."
Ms Carter concluded her submissions by asking us not to de-register this respondent, contending that a lesser penalty would meet the case.
This is a case which has troubled the Tribunal. On the one hand there can be no serious doubt, in our view, that XXXXXXXXX behaviour amounted to serious misconduct. It went well beyond the bounds of propriety in terms of a relationship between a teacher and a student, and it is acknowledged that it had an adverse impact on the student. On the other hand, as Ms Carter submits, this is by no means a case which is at the high end of the scale in terms of impropriety, given that the relationship did not become physical, and there are some mitigating factors such as the respondent's psychological condition, his age and lack of experience and his early admission of responsibility.
The Tribunal has given serious consideration to whether or not it can discharge its responsibilities without ordering the deregistration of this teacher, and has concluded that it can.
Having regard to all of the matters canvassed above, the Tribunal's decision is as follows:
(a) Pursuant to s139AW(1)(b), the Tribunal formally censures XXXXXXXXX for his serious misconduct;
(b) Pursuant to s139AW(1)(d), the Tribunal orders that XXXXXXXXX practising certificate be suspended until 31 December 2006;
(c) Pursuant to s139AW(1)(b), the Tribunal orders XXXXXXXXX to pay the New Zealand Teacher's Council's costs of and incidental to the hearing, on a 2B basis calculated in accordance with the Second Schedule to the District Court Rules. Counsel will no doubt be able to resolve questions on that basis, but if not the issue can be referred back to the Chairman for finalisation.
DATED at Wellington this 15th day of February 2006.