025-16 STATE OF RHODE ISLAND COMMISSIONER OF AND EDUCATION PROVIDENCE PLANTATIONS DEBORAH SALVATORE v. SOUTH KINGSTOWN SCHOOL COMMITTEE

DECISION

Held: South Kingstown School Committee

established that it had “good and just cause” for the

dismissal of Ms. Salvatore, who worked as a tenured

special education teacher in the district for many

years. The district provided evidence of numerous

instances in which she failed to fulfill her job

responsibilities as a case manager during the 2013-

2014 school year and irrefutable evidence that she

accessed confidential educational records of

students without a legitimate educational interest.

Her unsatisfactory performance and misconduct,

coupled with the disciplinary record compiled at the

end of the prior school year, provide ample support

for her termination.

DATE: December 14, 2016

2

Travel of the Case:

An appeal to the Commissioner on behalf of Deborah Salvatore was initially

taken on September 19, 2014. The parties requested that the matter be held in

abeyance until January 15, 2015 at which time the first agreed-upon hearing was

held. Thereafter seventeen (17) additional days of hearing were held and one

hundred and eighty-seven (187) exhibits were received into evidence. After the

hearings concluded on June 24, 2015, the matter was again placed in abeyance at

the request of the parties, in part so that the record before the Commissioner could

reflect the outcome of certain prior disciplinary matters (letters of reprimand) that

had been taken to arbitration. The record in this matter closed on May 13, 2016

when the final Reply Brief was submitted.

Jurisdiction to hear this matter arises under R.I.G.L. 16-13-4.

Issues:

Was there “good and just cause” for the termination of Deborah

Salvatore by the South Kingstown School Committee when it voted to

terminate her employment on August 18, 2014?

If there was good cause for her termination, did Ms. Salvatore receive

appropriate and timely notice1 of her termination under R.I.G.L. 16-13-

3, such that her termination could become effective at the start of the

2014-2015 school year?

Findings of Relevant Facts:

Disciplinary History:

1 The record does not indicate the date of the Committee’s notice of termination. According to the briefs submitted

(both at page 1), Ms. Salvatore’s actual termination took place “in May of 2014” or “on May 12, 2014”.

3

Ms. Salvatore received four letters of reprimand2 prior to her dismissal by the

School Committee, all in June of 2013 after her return to teaching after an

extended leave of absence:

1. A letter of reprimand issued by Christine Levy, South Kingstown’s Assistant

Director of Pupil Personnel Services on June 21, 2013 because Ms. Salvatore

“rebuffed” Ms. Levy’s attempt to conduct an unannounced classroom

observation of her first period Learning Center classroom on June 18, 2013

and provided a false reason as to why the observation could not be

conducted. (discipline upheld by Arbitrator Roberta Golick3 on October 20,

2015)

2. A letter of reprimand issued by Teresa Eagan, Director of Pupil Personnel

Services on June 18, 2013 because Ms. Salvatore failed to present a draft IEP

for a student on her caseload at his May 14, 2013 annual review. (discipline

upheld by Arbitrator Marsha M. Saylor on December 16, 2015)4

3. A letter of reprimand issued by Jared B. Vance, Assistant Principal of Curtis

Corner Middle School, on June 20, 2013 (amended on January 29, 2015)

because Ms. Salvatore was insubordinate in failing to carry out his directive to

2 Two additional letters dating back to October of 2011 were submitted by the School Committee and argued to be

letters of reprimand. Counsel argued that these letters are disciplinary “in tone and substance” and had been placed

in Ms. Salvatore’s personnel file. We find that neither of the letters can fairly be construed as letters of reprimand.

A letter dated October 26, 2011 from Teresa Eagan (Ex. C) was, by its terms “intended to act as a summation of the

meeting” at which concerns related to Ms. Salvatore’s performance were discussed. An October 29, 2011 letter

from then-Principal Michele Humbyrd to Ms. Salvatore (Ex. B) was “a follow up to our conversation on October 28,

2011” in which Dr. Humbyrd requested that Ms. Salvatore refrain from certain activities at school and that she not

use co-teaching periods to complete testing for IEP’s.

Ms. Salvatore received a fifth letter of reprimand from Christine Levy, Assistant Director of Pupil

Personnel Services, on March 19, 2014 (Ex. E). The issue of the validity of this letter of reprimand is currently

pending before an arbitrator. See footnote 10 of the School Committee’s Post-Hearing Brief.

Counsel for the Appellant argues that the validity of the three letters of reprimand upheld by Arbitrator

Saylor should be re-examined in this proceeding. We reject the argument that the Commissioner has the authority to

review a final and binding arbitration award on the issue of employee discipline. If we were to consider the

Appellant’s argument that errors of special education law undermine Arbitrator Saylor’s conclusions that Ms.

Salvatore failed to perform her job duties and was insubordinate, we would find that such argument lacks merit. 3 Arbitrator Golick found Ms. Salvatore’s version of the events that morning to be “dubious”. See p. 8 of decision,

Ex. A of South Kingstown’s Post-hearing Brief. 4 Arbitrator Saylor found that Ms. Salvatore “was aware of her responsibilities and emailed Ms. Levy that she had

updated the dates and completed the paperwork for (this student) when in fact she had done virtually nothing”. See

p. 10 of decision, Ex. B of South Kingstown’s Post-hearing Brief and attachment to the Brief of the Appellant.

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present a completed draft of this same student’s IEP on June 18, 2013.

(discipline upheld by Arbitrator Marsha M. Saylor on December 16, 2015)5

4. A letter of reprimand issued by Teresa Eagan on June 19, 2013 because Ms.

Salvatore was insubordinate in failing to carry out her directive, issued at the

June 18, 2013 meeting, that Ms. Salvatore present a completed draft IEP for

this same student on June 19, 2013. (discipline upheld by Arbitrator Marsha

M. Saylor on December 16, 2015) 6

The 2013-2014 school year:

Ms. Salvatore’s 2013-2014 school year was her twenty-fifth year as a special

education teacher in South Kingstown public schools.Tr. 1975.

During the 2013-2014 school year, Ms. Salvatore’s duties were extensive, in

that she worked as a resource teacher, a teacher in a collaborative classroom

setting, and as a case manager for a caseload of twelve (12) students. Tr. 2017-

2018; Ex.H. Her duties as a case manager were summarized in a document

entitled “Case Management.” Ex. F.

Over the course of the 2013-2014 school year, Ms. Salvatore failed to

adequately perform her duties as case manager with respect to three students

on her caseload, Student Doe I, Student Doe II and Student Doe III. With respect

5 Arbitrator Saylor found that Ms. Salvatore refused to “pull up” an IEP draft from TIEnet (the computer system for

writing IEP’s) when she was directed to do so by Ms. Eagan at the June 18, 2013 meeting. The IEP was pulled up

and again contained many serious omissions. The IEP was basically unchanged from the May 14 meeting, many

parts were blank and another student’s name was typed onto the IEP. Ms. Eagan requested that Ms. Salvatore call

the mother and reschedule the meeting and she refused. Ms. Eagan requested the mother’s phone number and Ms.

Salvatore refused. Arbitrator Saylor indicated in her award that she considered this charge to be very serious. See p.

12 of decision, Ex. B of South Kingstown’s Post-hearing Brief and attachment to the Brief of the Appellant. 6 Arbitrator Saylor found that, despite the directive that she present a completed draft IEP on June 19, 2013, Ms.

Salvatore had nonetheless come to the meeting with a document that contained “serious omissions.” Goals for

written language and math were not updated, there were no reading or executive functioning goals and no

incorporation of a previously-conducted Functional Behavior Analysis or Behavior Intervention Plan. See pp. 12-13

of decision, Ex. B of South Kingstown’s Post-hearing Brief and attachment to the Brief of the Appellant.

5

to all three students, Ms. Salvatore did not function as their advocate or

“primary advocate” as required by the job description of case manager (Ex.F).7

With respect to Doe I and Doe II, she also did not communicate effectively with

their parents and general education teachers when issues were raised with

respect to the implementation of their IEP’s. When questions were presented

with respect to whether or not they were receiving the supplementary aids and

accommodations needed for them to access the general education curriculum,

Ms. Salvatore did not take steps to ensure that such aids and accommodations

were being provided.8 With respect to Doe I, there was primarily a lack of

follow up to ensure that Doe’s planner was being signed consistently and that

he would receive a “check in/check out” procedure each school day, which had

proven to be successful the previous school year.9 Ex. S; Ex. VVVVV; Tr.81, 124-

131, 152, 160-164, 168; 182-185; 706-710; 2498-2500; 2967-2969. With

respect to Doe II, the signing of his planner, providing him with copies of

teachers’ notes and his access to a computer for writing assignments were

brought into question in a letter from his pediatrician dated November 5, 2013.

Tr. 2154-2158; 2571; Ex. V; Ex. VV, WW, and XX; App. Ex. 1;

With respect to Student Doe III, Ms. Salvatore did not seek to correct a

scheduling error that placed him in her resource class when he was not

supposed to be there. She also failed to re-convene his IEP team when he was

removed from class “almost daily” for disciplinary referrals and, as a result,

received few educational services10 until his placement on a different team

7 This factual conclusion is supported by evidence in the record too voluminous to cite here, but Ms. Salvatore’s

failure to function as an advocate with respect to each of these three students will be discussed in detail later in this

decision. 8 Coincidentally, by mid-October, both Doe I and II were failing one or more of their academic subjects.

9 At an IEP meeting on October 29, 2013 the importance of the check in/check out procedure was discussed and the

understanding was that this would be provided without a revision to Doe I’s IEP. The IEP was amended to

explicitly call for this procedure at a meeting on December 10, 2013 so as to ensure that it would be provided with

fidelity. Tr.160-162, 182-185. 10

Not surprisingly, Doe III was also failing most of his academic subjects until he was placed on another team on

April 1, 2014 after which point his grades improved. Ex. TTTTT. His frequent referrals out of class also ceased

upon his assignment to the new team. Tr. 956; Ex. AAA.

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with a different case manager on April 1, 2014. Tr. 270-276; 934, 937, 992,

1016, 1036-1037, 1050, 1067-1068; 2852; 2860; 2871-2872; Ex. AAA.

The parents of Doe I and II registered verbal complaints11 with respect to her

job performance with the Director and Assistant Director of Pupil Personnel

Services and, in late January/ early February both submitted written

complaints as well. Tr. 126; Ex. N; Ex. Y; Both of these written complaints were

brought to Ms. Salvatore’s attention. Tr. 219-224; 742-744; Ex. ZZ; App. Ex. 39.

The Assistant Director was required to monitor Ms. Salvatore’s job

performance with respect to Doe I, Doe II and Doe III and fulfill the role of case

manager for these students on several occasions. Tr. 114-123;126-

128;132;159-160; 164167-168; 205-206; 234;273-276; 396-397;817; App. Ex.

36.

A mid-year evaluation of Ms. Salvatore prepared on March 14, 2014 revealed

multiple deficits. Her performance in a number of areas evaluating her

professional responsibilities or professional “foundations” was assigned the

lowest score possible. Ms. Salvatore received an electronic copy of the

evaluation on March 14, 2014 and met to discuss it with both Ms. Levy and

Teresa Eagan on April 9, 2014. Ex. FF; Tr. 387-389, 403. Ms. Salvatore had

little comment in response to the issues noted in her evaluation and provided

no written response. Ex. FF; Tr. 404-405.

On March 25, 2014 Ms. Salvatore removed a student (Student Doe IV) who had

recently been diagnosed with autism and for whom an Individualized

Education Program had been developed from a collaborative class in English

Language Arts. The student had yelled “shut the f--- up” in response to

students collectively wishing him a happy birthday. His disability caused him

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On December 9, 2013 the Doe II’s parent met with Christine Levy and Jared Vance with concerns about a lack of

communication from his case manager and a complaint that his planner was not being filled out. Ms. Levy and Mr.

Vance met with Ms. Salvatore on that same day and outlined the parent’s concerns/complaints to her. Tr. 217-219;

Ex. X.

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to exhibit “aberrant” or “unexpected” behavior, including verbal outbursts,

verbal disruptive noises, and swearing. Tr. 410-411; Ex. NN.

Student Doe IV had a Behavior Intervention Plan created, updated and

distributed to all of his teachers so that he could develop appropriate

classroom behavior and increase the period of time he attended class in a

collaborative setting before going to a specialized alternate “ALP” classroom.

Ex. KK; NN; OO; Tr. 468-475;486.

At the time Ms. Salvatore removed this student from the collaborative setting,

his behavior plan called for his inappropriate, disruptive behavior12 to be

processed with him (within or outside the classroom, depending on the

situation) for him to re-enter the class, return to task and/or his seat and try

again. Ex. NN. Instead of processing his behavior with him, Ms. Salvatore sent

him out of the class to the ALP classroom, in contravention of his IEP and the

Behavior Intervention Plan it incorporated. Ex. KK; Tr. 466, 502, 524-525,536.

Administrators became aware of Ms. Salvatore’s failure to comply with this

student’s Behavior Management Plan when his mother sent a note to Christine

Levy, the Assistant Director of Pupil Personnel Services, indicating that her son

had reported to her that same day that he had “freaked out” and “lost control”

of his mouth and blurted out “shut the F--- up” in ELA class when “all the kids

were yelling” about his birthday and staring at him. Tr. 457; Ex. QQ.

Upon entering the ALP classroom on March 25, 2014 following the incident

described above, Ms. Salvatore, with a discipline slip in her hand, discussed

issues related to the student’s discipline in front other students, including the

12

The Appellant and the other teacher in the collaborative class testified that the student’s behavior had been

threatening and thus required that he be removed from the class. Ms. Salvatore testified that after trying to

“deregulate him” she sent him to Room 111 (Vance’s room) not to the ALP class. Tr. 2295. However, this account

is not supported by the weight of the evidence. Ms. Salvatore did not report a “threat” to the ALP teacher or state

that she had sent the student to Room 111 when she discussed the incident in the ALP classroom a short time later.

Tr. 535. If there had been a physical or verbal threat, the behavior plan called for “immediate contact to Jared

Vance, Assistant Principal” not for the student to be sent to the ALP class. The discipline referral form created by

Ms. Salvatore at the time (Ex. SSSS) states that the student “said f--- you” in response to students saying “happy

birthday” when he entered the room. The form notes “disruption” caused by “Abusive/Inappropriate

Language/Profanity.”

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student himself. The student heard Ms. Salvatore say that she “couldn’t write

him up” because if she did, “she would be in trouble”.13 Tr. 492-495; The ALP

classroom teacher, who was also the student’s case manager, ushered Ms.

Salvatore toward the door, and once outside, explained that disciplinary slips

were “for documentation purposes only” to record his misbehavior, but not to

be used for punishment purposes. Tr.492-499. The student reported to his

mother that same day that he heard Ms. Salvatore say to a teacher that “she

can’t discipline him or she would get in trouble with Teresa Eagan or the

Superintendent.” Tr. 553; QQ.

Doe’s mother sent an email report of this incident to Christine Levy. A copy was

forwarded to Ms. Salvatore so that she could respond, but at the mid-year

conference Ms. Salvatore said she didn’t want to discuss it. Tr. 819-821; Ex. QQ.

At some point in early Spring of 2014, Ms. Salvatore took four or five students

into her classroom at lunch time and talked to them about their behavior when

Student Doe IV “acts out.” Tr. 2303. After explaining to the group that “it

doesn’t help when you laugh when students are disruptive or when students

make outbursts” one of the students allegedly said “You’re referring to (Student

Doe IV) - that’s because he has autism.” Ms. Salvatore did not acknowledge this

statement and denies that she mentioned the word “autism”.14 Tr. 2303-2304.

On April 7, 2014 Ms. Salvatore inappropriately accessed the educational

records of a student no longer on her caseload by demanding certain IEP

13

When asked by her counsel if she had made such a statement in the ALP classroom, Ms. Salvatore testified “I

didn’t use those exact words, and I’m not recalling exactly what I said…I don’t recall specifically what I said to

her.” Tr. 2299. 14

According to the testimony of one of the students who was in the room at the time of this discussion, she was

“quite confident” that it was Ms. Salvatore, and not she, who said Doe IV was autistic, as Ms. Salvatore claimed in

her testimony. Tr. 1334; 2304. This student, who was and remains a friend of Doe IV, texted him about this

disclosure, telling Doe that when he wasn’t in ELA class one time, Ms. Salvatore told “us all” that he was “autistic

and different” from them. S.C. Ex. SS. Although this student’s testimony was credible, it stands in contrast to Ms.

Salvatore’s denial that she disclosed Doe IV’s diagnosis to the group of students she called in to her room that day.

We find it extremely difficult to believe that such a disclosure would be made by any member of the teaching team

involved with Doe IV, since the subject of how catastrophic Doe IV viewed the potential disclosure of his recent

diagnosis had been discussed at virtually every meeting. Without corroboration of the testimony presented by the

School Committee with respect to this charge, we decline to find that Ms. Salvatore made this disclosure.

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records from a co-worker. Tr. 1237-1241; 2306-2307; 2318-2329, 2658-

2659.15

On April 9, 2014, after the school principal directed her to return the records

she had obtained from the new case manager, Ms. Salvatore failed to return all

of the records and falsely represented to the principal that she had complied

with her directive. Tr. 1133-1134; 1246;1171, 1175; Ex. OOO, PPP and QQQ;16

On April 10, 2014 Ms. Salvatore attempted to access the educational records of

Student Doe III at the Pupil Personnel Services office. At the time she did so,

she had no legitimate educational interest in the student. Tr. 1366-1379.17

In April of 2014, on various dates, Ms. Salvatore used TIEnet to access, review

and print special education records of Student Doe III and another student18.

At the time she did so, she had no legitimate educational interest in either of

these students. Ex. QQQQ;

Positions of the Parties19:

South Kingstown School Committee:

The School Committee submits that against the backdrop of a serious

disciplinary record for deficiencies in performance and insubordination, Ms.

Salvatore demonstrated ongoing poor performance and misconduct throughout the 15

Ms. Salvatore had accessed this student’s educational records on TIEnet earlier that morning and saw that he had

a new case manager. It was this person that she approached to request a copy of certain IEP records not yet available

on TIEnet. Ms. Salvatore testified that her purpose in requesting the student’s records was not because she was

under a mistaken impression that she was still involved in his education, but rather her purpose was to “close her

file” on this student. 16

Although Ms. Salvatore testified that she did not copy the other two pages that she had requested and received on

April 7, 2014, the fact that she specifically requested these three pages, proceeded to the copy machine and returned

the three pages to the new case manager without further comment causes us to conclude otherwise. 17

Ms. Salvatore had no recollection of an encounter at the copy machine with the Special Services secretary who

shredded the copies Ms. Salvatore had made. 18

The School Committee initially asserted that Ms. Salvatore had inappropriately accessed the records of four (4)

students, but withdrew its claim with respect to two of the students. See footnote 76 of the School Committee’s

brief. 19

Both parties extensively briefed the factual and legal issues in this appeal. For purposes of efficiency, the

summary of their arguments has been condensed.

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2013-2014 school year. The evidence presented over many days of hearing

overwhelmingly showed that Ms. Salvatore did not carry out her fundamental

duties, as set forth in the case management description. She failed to gain “in-depth

knowledge” of her students’ needs, including their needed accommodations and

modifications, and use that information to do what was most appropriate to help

her students succeed. She failed to establish strong and positive communication

with parents and to collaborate with general education teachers to ensure that

those teachers were implementing supplementary aids and services with fidelity.

When a special education student is failing a general education class or is regularly

sent out of class for so-called “discipline,” his or her case manager should be on high

alert, to determine whether some aspect of the IEP or the supplementary aids and

services is not working or requires adjustment.

The Committee contends that it has met its burden to prove by a

preponderance of evidence20 that just cause for Ms. Salvatore’s termination existed.

Through numerous “examples” of Ms. Salvatore’s poor management of four students

for whom she had responsibilities that year, as well as evidence that Ms. Salvatore

improperly accessed student records in April of 2014,21 it has provided the requisite

legal justification for its decision to terminate her employment. The Commissioner

should affirm her termination and rule that it is effective on May 12, 2014 and not at

the end of the “ensuing” school year. The School Committee argues that but for the

misconduct of April 7th through April 10, Ms. Salvatore would likely not have been

terminated in May of 2014.22 However, what she did in these few days irrevocably

breached any confidence the Committee had in her ethics- and honesty- and made

clear that the employment relationship had to come to an end. Since her

termination was triggered by acts of misconduct occurring well after the March 1st

20

Counsel for the School Committee argues that there is no merit to the Appellant’s argument that a heightened

standard of proof by “clear and convincing” evidence should apply in the termination of a long-tenured employee. 21

The Committee submits that the purpose for Ms. Salvatore’s accessing/printing of student records was not to

“close her file” or to safeguard the rights of these students, but rather to build a documentary record for the arbitral

review of disciplinary action that had already been taken against her in 2013 and for what she believed would likely

be additional discipline imposed on her for her failure to support Student Doe III in the 2013-2014 school year. 22

See page 19 of the School Committee’s Reply Brief.

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deadline, the Commissioner should disregard the ruling of the Superior Court in

McCrink v. City of Providence (which, the Committee submits, is not controlling

precedent) because it is erroneous and creates a windfall of another year’s salary for

teachers terminated for misconduct occurring after March 1st of any school year.

The Appellant:

Counsel for the Appellant submits that Ms. Salvatore has enjoyed a long and

distinguished career in special education in the South Kingstown school system and

that in this proceeding the School Committee has failed to meet its burden23 to

prove that it had “good and just cause” to terminate her employment. Prior to

making its decision that she would be terminated on May 12, 2014, the School

Committee failed to undertake a careful and unbiased investigation to determine

whether there was evidence to support the allegations against Ms. Salvatore.

Instead, the Committee accepted the complaints of parents as true and moved

forward with the most drastic of sanctions against this long-term employee. The

Committee failed to follow principles of progressive discipline since it moved

directly from letters of reprimand to termination. The letters of reprimand that

were issued to her in May and June of 2013 resulted from her return to a school that

had changed. The professionals with whom she had successfully worked in prior

years had been replaced by those who were intent on creating a new school climate.

This climate was one in which confusion reigned and communication between

teachers and administration had broken down, especially with respect to discipline

and special education policy. It was this “toxic” atmosphere that existed in late 2013

and into the next school year, when her disciplinary issues arose.

23

The Appellant argues that a preponderance of the evidence standard of proof should be replaced with a “clear and

convincing” evidence standard, given that Ms. Salvatore is a long-tenured employee, not previously disciplined and

her reputation in the community would be harmed if the School Committee’s decision is upheld.

12

The Appellant takes the position that the letters of reprimand issued to her,

and upheld by Arbitrator Saylor, should be re-examined24 in this proceeding. She

points out that prior to the May-June 2013 incidents for which she was disciplined,

she was viewed as a proficient teacher with twenty-four years of exemplary service.

Her counsel questions how a teacher who had demonstrated excellence at her craft

and consistently collaborated with her colleagues- whose participation in IEP

meetings and attention to student needs had been noted by successive supervisors-

could become the opposite of the competent professional in a matter of weeks. The

Appellant suggests that the deficiencies for which she was disciplined, and for which

she was terminated, either did not exist or were actually attributable to

administrators with personal animus against Ms. Salvatore.

Unlike the arbitration proceeding, in which the evidence was objective and

indisputable, the evidence in this record does not support the conclusion that Ms.

Salvatore failed to perform her responsibilities as a case manager, or that she

engaged in professional misconduct in improperly accessing student educational

records. Here, much of the evidence that Salvatore’s performance was deficient is

based exclusively on unverified allegations and disputed by numerous witnesses.

The narrative created by the School Committee is that Ms. Salvatore is a negligent,

recalcitrant and unprofessional employee. This narrative does not “sync” with all of

the evidence placed in the record, especially that provided by the testimony of the

teachers with whom the Appellant worked on “Team Defender” in the 2013-2014

school year.

When the focus is placed on each of the charges in the Statement of Cause

provided to Ms. Salvatore by the School Committee, there is insufficient evidence to

substantiate them.

For example, when Student Doe IV entered the classroom on March 25, 2014

and screamed a profanity at his classmates, his use of such language warranted

24

The argument is also made that Arbitrator Saylor’s decision was based on a misapprehension of the IEP process.

Ms. Salvatore was actually not insubordinate because what she had been directed to do, i.e. prepare a draft IEP in

advance of the scheduled meetings, would violate the Individuals With Disabilities Education Act (IDEA).

13

immediate referral to the Vice Principal’s office (Room 111). The other teacher in

the classroom testified that she was fearful of Doe at that time, especially in light of

his previous behavior in her classroom. The Appellant points out that her

description of what happened that day is consistent with “a physical or verbal threat

to students or staff” and that she was actually following his behavior plan that day

when she directed him to Room 111, Mr. Vance’s office. She also properly managed

his behavior because removing him from class averted potential harm to other

students. Again, the school administration, and ultimately the School Committee,

has presumed-without investigation- that there was no threat that day and that Ms.

Salvatore did not do her job properly.

All that has been substantiated with respect to Charge 2 (alleging that Ms.

Salvatore engaged in an inappropriate discussion of Doe IV’s disciplinary issues in

front of students in his ALP class just after the incident) is that Ms. Salvatore was

attempting to sort out the confusion as to what was to be done with disciplinary

slips filled out to document certain behaviors of this student- not that she identified

the student by name or that other students overheard and drew an inference that

she was referring to Doe IV.

Charge 3 rests solely on the testimony of a young middle-school student that

Ms. Salvatore disclosed Doe IV’s disability to a small group of his classmates by

telling them that he was “autistic” and “different”. Despite the availability of four or

five witnesses who could corroborate this claim, no other witness was produced.

The possibility is that this event did not actually occur, and Ms. Salvatore denies that

she made such a disclosure when she called these students into her room that day.

Concerns about Ms. Salvatore’s job performance came not from “multiple

complaints from parents” (Charge 4), but primarily from the parents of two

students, Doe I and Doe II. The parents of the remaining ten students on Ms.

Salvatore’s caseload (including the parents of Doe III) were apparently satisfied

with her performance. With respect to complaints regarding Ms. Salvatore’s lack of

communication and failure to ensure that IEP accommodations and supplementary

14

services were in place and provided consistently, she takes the position that she did

communicate when appropriate and she did follow up as necessary. She provided

teachers on Team Defender with a “snapshot” of each student’s accommodations

and modifications (App. Ex. 8). She encouraged teachers on her team to read the IEP

accommodations/modifications sheet she provided to “familiarize themselves in

detail” with all of the required accommodations and modifications that were

included in the students’ IEP’s. For the most part, teachers did provide these aids

and supplementary services, including signing planners and providing copies of

teacher notes. The exception was testing in a small, quiet setting which Doe I, II and

III were all supposed to utilize. This was brought to the attention of the Vice

Principal and still no space for a less distractible test setting was made available. So,

the Appellant submits, the Administration is responsible for this issue of

noncompliance. With respect to a check in/check out procedure, this was not a

service described in Doe I’s IEP at the beginning of the year, but it was implemented

consistently- and over his resistance- when it finally was written into his IEP in

December of 2013.

With virtually all of the allegations, the administration- Christine Levy, Teresa

Eagan, Jared Vance, and Patricia Aull- never bothered to investigate or verify these

allegations as true. A modest investigation would have revealed the extent of the

defect in providing services and accommodations - if there were, in fact, a defect.

Often the administration failed to bring parental complaints to Ms. Salvatore’s

attention. This was the case with a significant email from Doe I’s parent on January

28, 2014, complaining that his “new” IEP was not being implemented and that “we

have not heard from anyone except the social studies and science teachers re: the

IEP since December 10, 2013.” According to Ms. Salvatore’s testimony, Doe I’s

parent’s email of January 28, 2014 was never brought to her attention (2089-2090).

If it were, she would have gotten in touch with the parents to discuss it, answered

their accusations and problem-solved with them. (2090)

15

With respect to Ms. Salvatore’s case management of Doe III, an incident of his

removal from class for disruptive behavior on March 5th sparked the

administration’s interest in a series of behavior contracts she had developed for

him. The ineffectiveness of these contracts had been a point of discussion at the

conclusion of Ms. Levy’s observation of Ms. Salvatore’s cooperative ELA class on

March 5, 2014. The administration claims that Ms. Salvatore made an inordinate

number of disciplinary referrals when instead she should have been implementing

the redirections called for in his IEP. The administration also claims that it was Ms.

Levy who initiated a Functional Behavioral Assessment (FBA) for him after her

March 5, 2014 observation. Ms. Salvatore testified that she had moved up Doe III’s

IEP meeting (from June to March 11, 2014) and that it was she who set in motion

the FBA to better plan for managing his behavior. The Appellant submits that the

evidence here shows that she was not derelict in attending to Doe III’s needs: she

was implementing a series of behavior contracts with the knowledge and assent of

school administrators. She may have sent him to Room 111 more often than any

other teacher on the team, but then again she had twice as much contact with him as

did the other teachers. Her efforts to better manage his behavior were cut short

when, without her knowledge or input, he was transferred to another team.

With respect to perceived deficiencies noted by Christine Levy in her mid-

year evaluation, to the extent they were based on parental complaints, these

complaints had not been verified in any way. Ms. Salvatore’s level of communication

with parents was as frequent as she felt needed. How much and how often a teacher

must communicate is not specified and, as it should be, is left to the discretion of the

teacher given the situation. Simply because Ms. Levy or Ms. Eagan would have

communicated more frequently, and in different ways than Ms. Salvatore did, does

not establish that she failed to communicate with parents and colleagues on her

team.

The School Committee’s allegation that Ms. Salvatore inappropriately

accessed the records of Doe III by demanding a copy of certain records from a co-

16

worker on April 7, 2014 is predicated solely on the fact that she was no longer the

case manager for him. The fact remains that so far as she knew, she was still his

resource teacher and therefore still had a legitimate educational interest in his

records. At the same time, on April 7, Ms. Salvatore was aware that changes in his

IEP had been made during her absence the previous week. She was concerned that

services had been deleted from the finalized IEP. She sought to close out her file on

him with documentation to distinguish her tenure as case manager from that of his

new case manager. She also knew that the new case manager did not have a math

collaborative and reasoned that she would continue to provide those services as his

resource teacher. This accessing of records occurred because Ms. Salvatore was

unsure of her status and wanted a complete file to maintain her ability to advocate

for this student. This is not a situation calling for discipline.

Charge 7 is simply not substantiated by the record. Upon request by Principal

Patricia Aull, Ms. Salvatore returned the single page that she had copied on April 7th,

contrary to the assertion that she failed to return all of the records and falsely

represented to the Principal that she had complied with her directive. Even though

the co-worker had given her three (3) pages, there is no evidence whatsoever that

Ms. Salvatore copied anything other than the meeting minutes signature page for

the April 1, 2014 IEP meeting. She returned this, and thus complied with the

directive and made no false representation to Principal Aull.

On April 10, 2014, the Appellant acknowledges that she did indeed access

Doe III’s special education file at the Pupil Personnel Services office. However, the

reason for her accessing his file that day was perfectly legitimate. Her search of his

file was to locate a sign-in sheet from an IEP meeting that occurred on March 11,

2014. This document had been reported as “missing” by the office secretary and

urgently needed so that required data could be entered on the RIDE database. The

need to locate the missing document had been forwarded to Ms. Salvatore. She

argues that the evidence shows that she took Doe III’s file from the Special

Education Office into the area near the copier only for the purpose of locating a

17

missing page that she knew had already been forwarded to that office. It was in the

midst of her search that Ms. Eagan approached her, took the file from her and

directed Ms. Salvatore to her office. At that point, the secretary emerged from her

office to announce that she had located the missing page. The testimony about any

other copying is conflicting. Clearly, Ms. Salvatore’s purpose in looking through the

file was valid.

Some of the Appellant’s arguments with respect to Charge 9 relate to two

students for whom the School Committee has withdrawn its claims that Ms.

Salvatore’s access was not authorized. With respect to the other two students, the

charge is that between April 7 and April 9, 2014 Ms. Salvatore accessed (from

TIEnet) and printed copies of educational records for Doe III and another student

and that she had no legitimate educational interest in doing so, in violation of School

Committee policy and federal and state law. With respect to Doe III, the Appellant

again argues that she assumed that she was still his resource teacher. She still had

not received official notice that she was no longer his case manager. Her last TIEnet

access for Doe III’s records was hours before she was notified in writing by the

special education secretary that he now had a new case manager. With respect to

both students,25 the purpose of her access was a concern for their educational rights.

Implicitly, the Appellant argues that a violation of either or both students’

educational rights had occurred. She notes that her role as their advocate required

her to gather documentation from TIEnet on the dates and times indicated.

Not only has the School Committee failed to establish good and just

cause for Ms. Salvatore’s termination, but her termination was procedurally flawed

in that the Committee failed to provide her with a notice by the statutory deadline of

March 1, 2014. The Commissioner is required to set aside her untimely and invalid

termination and provide her with all of the remedies attendant to a wrongful

termination.

25

The other student had been on her caseload the prior year and the drafting of his IEP had given rise to the letters

of reprimand that were issued in June of 2013.

18

DECISION

In a case with over three thousand pages of testimony and almost two

hundred exhibits, our focus is the “Statement of Cause” (S.C. Ex. A) which sets forth

the basis for the South Kingstown School Committee’s decision to terminate the

Appellant from her position as a tenured special education teacher. In a de novo

hearing before the Commissioner, the burden is on the School Committee to prove

its allegations by a preponderance of the evidence and substantiate that “good and

just cause” supports the termination. Although the written decision of the School

Committee makes no reference to Ms. Salvatore’s disciplinary history, it is part of

every case of employee discipline, and need not be specifically noticed.26

The parties do not agree on the extent of Ms. Salvatore’s disciplinary history

and at the time of the hearing, its parameters were still being drawn in ongoing

arbitration proceedings. By the time the record closed,27 both parties had available

and included copies of relevant arbitration awards with their closing briefs. Since

the full extent of Ms. Salvatore’s disciplinary history is still at issue, the Findings of

Fact include an assessment of the Appellant’s disciplinary history. Although it is not

as extensive as argued by the School Committee, it does indicate that the Appellant’s

disciplinary record is recent and serious.

The School Committee has proven each of the items in its Statement of

Cause by a preponderance of the evidence, with the exception of Charge 3

(disclosure of Doe IV’s disability to a group of students in early Spring of 2014) and

with the conceded modification to Charge 9 (improperly accessing and printing

copies of educational records for four students, reduced to two students during the

period April 7-9, 2014). As indicated in the Findings of Fact, Ms. Salvatore failed to

perform her duties as a case manager for three students on her caseload, she did not

comply with Doe IV’s behavioral plan and did improperly and illegally access

26

See Farias v. Providence School Board, decision of the Commissioner dated November 22, 2006. Disciplinary

history is also relevant in determining whether principles of progressive discipline have been followed. 27

Both parties requested that the record remain open until the arbitration awards were issued.

19

student records on multiple occasions. Even without taking into account her

significant and recent disciplinary history, her unsatisfactory performance and

misconduct during the 2013-2014 school year constitute “good and just cause” for

termination.

With respect to Doe I, II, and III Ms. Salvatore failed to obtain adequate

knowledge about their needs and their needed accommodations and modifications,

failed to communicate with their parents and her colleagues so that strategies and

behavioral plans could be developed and implemented to enable these students to

access the general education curriculum and be successful in school. She shied

away from her role as their primary advocate, leaving such role to be assumed by

Assistant Director Christine Levy and, on occasion, Assistant Principal Jared Vance.

When Ms. Salvatore learned of the failing grades of students on her caseload

or was made aware of parent complaints with respect to their receipt of

accommodations and modifications, be it the signing of planners, teacher notes or

the absence of a check in/check out procedure, she did not follow up or investigate.

Questions as to whether or not a student’s IEP is being implemented consistently

are serious and we agree with the Appellant that assumptions should not be made.

However, it was Ms. Salvatore’s job as case manager to review the IEP’s of these

students with her colleagues, discuss any problems or concerns they had with

respect to implementation of required accommodations and make a determination

as to whether they were in fact being provided.28 She did not perform this job

responsibility. Discussions did not occur and documentation verifying compliance

was not considered or prepared. Ms. Salvatore testified that she did not view it as

her job to “monitor” compliance (2029-2030). She testified that she would address

“problems brought to her attention” in an “informal way” (2030). Unfortunately, the

28

Several of the Committee’s witnesses testified that the case manager is responsible for “ensuring” the delivery of

supplemental aids and services. The notion that a case manager on his or her own could “ensure” IEP compliance by

a recalcitrant general education teacher is not reasonable. The role of the case manager in that instance would be to

inform and discuss and, if necessary, refer the issue to special education administrators. There was a considerable

amount of variable testimony presented from Team Defender teachers as to whether accommodations and

modifications were provided consistently. Convincing testimony from the parents of Doe I and Doe II was presented

that deficiencies in compliance continued throughout the 2013-2014 school year.

20

record in this case shows that she took no steps whatsoever-informal or formal- to

confirm that the general education teachers were complying with the IEP’s of Doe I

or Doe II or documenting their compliance so that these questions could be easily

resolved.

Ms. Salvatore did not function as an advocate for Doe I and Doe II. Her

resistance to removing any ambiguity from Doe I’s IEP with respect to his receipt of

daily check in/check out was inconsistent with her advocacy role when it was clear

that his organizational challenges were not addressed by strategies in place at the

beginning of the 2013-2014 school year. Her opposition to amending Doe II’s IEP to

add a resource class in late January-early February was not aligned to his needs and

best interests, given evidence of his ongoing academic struggles and the

recommendation made by his neuropsychologist at Memorial Hospital (Ex. LLLLL).

The record shows that Ms. Salvatore was indifferent to both his access to and use of

an alpha smart or a more age-appropriate device to compensate for his illegible

handwriting and dyspraxia. His IEP noted that his use of a word processing device

had been a key element of his academic success in the previous school year.

The services that Ms. Salvatore provided as a case manager to Doe III were

inadequate. She failed to ensure that his class schedule aligned with his IEP. By her

own admission, she did not detect that he had mistakenly been scheduled for her

resource class until “sometime around the end, middle to the end of the semester,

first semester”. (2612) Despite the Appellant’s contention that she brought this

issue to Jared Vance’s attention when she discovered it and that he indicated he

“had no place to move” Doe III, Mr. Vance testified convincingly that the mistake in

Doe III’s schedule was never discussed with him. Doe III’s behavioral issues and

frequent removals from his classes deprived him of educational services far too long

into the school year. Ms. Salvatore testified that his frequent referrals did not impair

his progress and that she always made sure that he completed his work. She even

testified that he was making progress in his academics. The record in this case

shows exactly the opposite. An advocate has to maintain accurate knowledge as to

21

how the student is doing so that she can do what is most appropriate to help the

student succeed in school. In Doe III’s case, the facts were not consistent with those

to which the Appellant testified. Without the belated intervention of Ms. Levy and

Mr. Vance, Doe III would have been further deprived of educational services and of

the opportunity to have academic success.

Any inference that might be taken from the absence of complaints regarding

the other nine (9) students on Ms. Salvatore’s caseload does not outweigh proven

performance deficiencies with respect to these three students. This is not a case of

an isolated mistake or a difference of opinion on “best teaching practices”. The

Appellant simply did not seem to accept the broad parameters set for the job duties

of a case manager in the South Kingstown school system. (Ex. F) Despite parental

complaints and input from her supervisors, she sought a more limited role. Her

negative performance evaluation of March 14, 2014 provoked no written response.

Coupled with her subsequent failure to implement Doe IV’s behavior management

plan on March 25, 2014 and misconduct in accessing confidential student records

for her own purposes, we find sufficient “good and just cause” for termination.

The March 1st deadline for notice should not preclude Ms. Salvatore from

being terminated effective May 12, 2014. A district terminating even a tenured

teacher may do so immediately when the precipitating cause arises after the

statutory deadline. See: McCrink v. Providence School Board, decision of the

Commissioner dated October 20, 2009. We respectfully disagree with the contrary

Superior Court opinion in the McCrink case, which is not binding here. Requiring a

school district to retain (or continue to pay) a tenured teacher who committed

serious misconduct after March 1st for the remainder of that school year and the

entirety of the ensuing school year merely creates an artificial waiting period

serving no other purpose than to siphon funds that could be used for educational

programs. R.I.G.L. 16-13-3 must read in pari materia with R.I.G.L. 16-12-6. In doing

so, the rights protected by the respective statutes are fully preserved. R.I.G.L. 16-12-

6 protects children’s safety, welfare and educational rights. R.I.G.L. 16-13-3 protects

22

tenured teachers from arbitrary dismissal. When §16-12-6 must be invoked to

protect children from serious misconduct by a teacher, the teacher retains full due

process safeguards to defend against arbitrary action. No rights are lost or

compromised, and the two statutes are able to function in harmony.

For the foregoing reasons, Ms. Salvatore’s termination on May 12, 2014 is

upheld and affirmed.

For the Commissioner,

_________________________________________________ Kathleen S. Murray, Hearing Officer _______________________________ DATE: December 14, 2016 Ken Wagner, Ph.D. Commissioner