Disciplinary Tribunal Decision 2006-4
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
Mr Kenneth Johnston (Chairman), Ms Lyn Brash, Dr Margaret Franken, Ms Lorraine Skiffington and Mr Steve Wood
12 December 2005
15 February 2006
Jenny Gibson for the complainant
By notice of charge dated 16 September 2005, the Complaints Assessment Committee of the New Zealand Teachers' Council charged XXXXXXXXX with serious misconduct, particulars of the charge being as follows:
3.1 Whilst being a teacher at [the Secondary School] at which [Student A] was a student, during Terms 2 and 2 2004, you acted in a way that amounted to serious misconduct in the following particulars:
(i) You asked him to exercise and remove his clothing when there was no proper purpose to do so.
(ii) You asked him to accompany you to his house and asked him to carry out exercises and remove his clothing when there was no appropriate purpose for doing so.
(iii) You make these requests of [Student A] without permission from the school or his parents.
(iv) The requests made of [Student A] were not connected with advancing his learning.
(v) The requests made of [Student A] were not for any purpose reasonably associated with your role as his teacher.
3.2 Between 2-13 August 2004, whilst you were a teacher at [the Secondary School] and [Student B] was a student, you acted in a way that amounted to serious misconduct, in that:
(i) You asked him to carry out activities that had no reasonable connection with his education at [the Secondary School].
(ii) You asked [Student B] to go to your home and took him into your bedroom when there was no reasonable purpose for doing so.
(iii) On or about 2-13 August 2004, you asked [Student B] to assist you with a research assignment by taking him into your house and bedroom and asking him to:
(a) do physical exercises including push-ups and sit-ups;
(b) measure his own waist with a tape measure in your presence;
(c) sit for photographs while asking him to flex his muscles;
(d) measuring his muscles.
3.3 [Student C]
Whilst you were a teacher at [the Secondary School] at which [Student C] was a student, you acted in a way that amounted to serious misconduct in the following particulars:
(i) You represented to him that you had a nephew who was studying physical education at Otago University and asked him to assist with a research project being carried out by your nephew by:
(a) photographing [Student C] when there was no reasonable purpose for doing so;
(b) asking [Student C] to accompany you to your house and timing him doing exercises, including sit-up, squats and push-up;
(c) asking [Student C] to remove his tops and photographing him.
3.4 [Student D]
Whilst you were a teacher at [the Secondary School], where [Student D] was a student, in October 2004, you acted in a way that amounted to serious misconduct in that you asked him to remove his clothes and photographed him when there was no reasonable purpose for doing so."
During the course of a pre-hearing telephone conference on 19 October 2005, at which the complainant was represented by Ms Gibson, XXXXXXXXX indicated that he did not propose to instruct a solicitor or other adviser in connection with this matter, or appear at the hearing. He repeated during the course of that conference that he accepted that he was guilty of serious misconduct and that his expectation was that the Tribunal would deregister him.
On 14 November 2005 XXXXXXXXX wrote to the Secretary in the following terms:
"I have read the notice of hearing, the transcript of the pre-hearing conference and accept all that has been written. as I have said in written form I accept that I acted unprofessionally in my dealings with the students and that I believe that I should be de-registered as a teacher. I understand that the Tribunal will make its decision on the 12 (sic) December and that I will be notified of its findings.
I have no excuse for my behaviour and I accept that I am guilty. I am ashamed and embarrassed by my actions and have realised that I was never happy teaching. The students whom I miss lead (sic) will never forgive me nor should they, and whenever I think of what I did I am tortured by what they must think of me. I extend to them a sincere apology. I hope that by my (sic) plea of guilt will mitigate any further embarrassment for them.
Thank you for giving me the opportunity to express my thoughts and I await your findings."
In view of the fact that it was clear that XXXXXXXXX would be unrepresented, Ms Gibson for the Complaints Assessment Committee formally produced relevant documentation an affidavit. This consisted primarily of correspondence between the Secondary School at which XXXXXXXXX formally taught and the Secretary.
In her submissions for the Complaints Assessment Committee, Ms Gibson summarised the charge against XXXXXXXXX, emphasising that he knowingly misled a number of students, deceiving them into consenting to inappropriate conduct, inviting them to his home (in certain instances into his bedroom) and participating in the behaviour described in the notice of charge.
Ms Gibson very properly drew our attention to the fact that XXXXXXXXX had accepted responsibility for his actions to the School, to the Complaints Assessment Committee and in front of this Tribunal, and indicated that he does not intend to teach again.
She took us through the definition of serious misconduct in the Education Act 1989, and submitted that it was clear that XXXXXXXXX actions were caught by that definition, emphasising that:
(a) XXXXXXXXX knowingly misled the students;
(b) XXXXXXXXX breached his ethical obligations and abused his position of trust with the students;
(c) XXXXXXXXX breached the privacy of the students, on false grounds;
(d) XXXXXXXXX had inappropriate contact with the students, asking them to his home and physically measuring them;
(e) XXXXXXXXX engaged in a pattern of behaviour, over a period of time, that placed students at risk and resulted in an inappropriate relationship with him.
She summarised her submission in these terms;
"In summary, it is submitted that the conduct involved a pattern of behaviour of a highly inappropriate nature and was not limited to a one-off incident. A number of students were the subject of XXXXXXXXX requests and attentions and they have been adversely affected by his actions. The teacher, it is submitted, has exploited his power and position in a conscious manner over the students who were vulnerable, and offered their help without question, because of the position of trust held by XXXXXXXXX."
Ms Gibson went on to submit that one of the responsibilities that this Tribunal has is to set standards of behaviour, quoting from the unreported Elias J (as she then was) in B v The Medical Council of New Zealand, High Court, Auckland, 8 July 1996.
As to penalty Ms Gibson simply outlined the range of penalties in the legislation.
As Ms Gibson says, this is a serious case, involving a senior teacher in a flagrant breach of the trust reposed in him, deceiving students by lying to them and in that way inducing them to participate in a fictitious research programme. It is that element of breach of trust by deceit that makes this matter so serious. In addition, the Tribunal cannot help but reflect on the adverse impact that these events may have had on the students concerned, and the potential danger in which they were placed.
In the circumstances the Tribunal's decision is as follows:
(a) Pursuant to s.139AW(1)(b), the Tribunal formally censures XXXXXXXXX for his serious misconduct;
(b) Pursuant to s.139AW(1)(g), the Tribunal orders XXXXXXXXX deregistration;
(c) Pursuant to s.139AW(1)(i), the Tribunal orders XXXXXXXXX to pay costs to the New Zealand Teachers' Council calculated on a 2B basis in accordance with the Second Schedule to the District Court Rules. Ms Gibson may be able to resolve the question of quantum directly with XXXXXXXXX, but if not the issue can be referred back to the Chairman for finalisation.
The Tribunal wishes to make one final comment. It is not a comment which will have any particular impact because we have been at pains not to identify the secondary school involved in this matter. It is plain that the guiding principle which the Board and the Principal employed in dealing with this most difficult matter was to be open and honest within the school environment and with all senior pupils. For our part, we cannot imagine how the school could have handled the matter any better than it did, and we think that those involved are to be commended.
DATED at Wellington this 15 February 2006