BEFORE THE BOARD OF EDUCATION OF JOPLIN SCHOOLS, JOPLIN, MISSOURI
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION
On May 23, 2013, the Joplin Schools Board of Education ("Board") convened a hearing, pursuant to Sections 168.1 16 and 168.118 of the Revised Statutes of Missouri, on charges brought against Mr. William "Randy" Tuntcr, a tenured teacher, by Superintendent Dr. C.J. Huff. Mr. Turner was present at the hearing and was represented by legal counsel Ms. Nancy Watkins, at all times. During the hearing, the administration was represented by legal counsel , Ms. Shellie Guin. A court reporter was present and recorded the testimony of the witnesses. After carefully considering the evidence presented, the Board of Education makes the following findings of Fact, Conclusions of Law, and Decision. To the extent the following findings.
Fact are actually conclusions of law, the Board incorporates such findings in its Conclusions of Law. To the extent the following Conclusions of Law are actually findings of fact, the Board incorporates such conclusions into its Findings of Fact.
1. In a teacher termination proceeding, the determination of the credibility of witnesses is a function of the Board of Education. Ross v. Nohb, 662 S.W.2d 257 (Mo. 1983).
2. To the extent the testimony of witnesses of the administration conflicted with the testimony of Mr. Turner and his witnesses, the Board of Education finds the testimony of the witnesses of the administration to be more credible.
3. The Board's rulings with regard to objections made to witness testimony throughout the hearing should be construed to he consistent with the Board's findings, conclusions and decision set forth herein. Any objections that are not consistent with the Board's Findings of Fact, Conclusions of Law und Decision are hereby overruled.
4. The following exhibits were admitted into evidence at the hearing without objection: Exhibits 1- 40 and Exhibits A - I.
5 . The following schedule identifies exhibits that were objected to by one of the parties and the Board's ruling as to such exhibits: NONE
FINDINGS OF FACT
1. Mr. William "Randy" Tuner ("Mr. Turner") is employed as a school teacher at Joplin Schools in Joplin, Missouri ("District").
2. Mr. Turner is certified by the State of Missouri and is a tenured teacher in the
District. Mr. Turner teachcs middle school communication arts, meaning that the majority of his students are eleven, twelve, thirteen or fourteen years old.
3. On May 7, 2012, Mr. Turner signed a contract for employment with the District that contained language stating:
The teacher is subject to and agree with all provisions, duties and requirements applicable to his or her position, as directed by the administration, and as stated in any written performance standards or criteria, policies, procedures or rules of the District, whether adopted or modified before or after the effective date of this contract. The Teacher acknowledges that he or she has access to
complete copies of all such perfornance standards or criteria, polices, procedures and rules. The Teacher further acknowledges the importance of maintaining, during the term of this Agreement an updated knowledge of such standards, criteria policies, rules and regulations. The teacher also agrees to comply with all federal state and local laws.
4. On or about August 13, 2012, Mr. Turner signed a document entitled Joplin Schools Acknowledgcment of Trainings for the 2012-2013 School Year ("Policy Acknowledgement") . The Policy Acknowledgement states that the employee is aware that all Board policies arc located on the District website and that the employee will become familiar with all Board policies. (Exhibit 6.)
5. On March 6, 2012) Mr. Turner received a copy of a policy update for Board Policy GBH, which he read on March 7, 2012. (Exhibit 7.)
6. On April 18, 2012, Mr. Turner received administrative clarification regarding Board Policy GBH along with link to the complete policy. (Exhibit 8.)
7. On November 5, 2012, Mr. Turner acknowledged that he read and understood the District's Social Media Responsible User Requirements. (Exhibit 9.)
8. Ori December 16, 2012, Mr. Turner posted a link to a free download of his book entitled No Child Left Alive on a blog called Room 210 Discussion. (Exhibit 4.) The Room 210 Discussion blog was not password protected, was available to the general public, and was accessible by his middle school students. (Tr. p. 308 and 309.)
9. Embedded in the post was a live hyperlink such that when the user clicks on the title No Child Left Alive, he or she is redirected to amazon.corn, where the user can then download an electronic version of the book. (Exhibit 4; Tr. p. ?i 7 and 38.)
10. The book No Child Left Alive contains graphic depictions of sexuality, rape, infidelity, profanity, domestic violence and school violence. (Exhibit 28.) No Child Left Alive is not appropriate material for middle schoolers. (Tr. 194.)
11. The first paragraph on the blog's homepage reads:
This blog is designed to provide students and former students from Mr. Randy Turner's communication arts class at East Middle School 1n Joplin, Mo., an opportunity to discuss issue that affect teens and society as a whole.
12. The last sentence to the blog post about No Child Left Alive reads: "Please feel free to download the book today or tomorrow and let's start a discussion." (Exhibit 4.)
13. Mr. Turner also posted a link to a free download of No Child Left Alive on another blog called Room 210 for Teachers on December 16, 2012. (Exhibit 5.) Both Room 210 Discussion and Room 210 for Teachers are included as direct links on another blog maintained by Mr. Turner called East Middle School Roundabout, a blog routinely accessed and utilized by middle school students. (Exhibit 34; Tr. 204 206.)
14. From December 16 through April 6, 2013, Mr. Turner made No Child Left Alive available to his Twitter followers on at least seven (7) occasions, most of the time for free, through various tweets he posted himself. (Exhibits 35 und 36.) Mr. Turner has current students who follow him on Twitter. (Tr. 213 und 214.)
15. From Decembcr 5 through December 22, 2012, Mr. Turner made No Child Left Alive available to his Faccbook frientlds on at least ten (10) occasions, many times for free, through various links he posted himself. (Exhibit 39.) At the time of the hearing, Mr. Turner had at least 182 Faccbook friends who are current students. (Tr_ 311.)
16. By posting No Child Left Alive on the Room 210 Discussion blog, Twitter, and Faccbook and offering it to students for free, Mr. Turner made it readily available to students and did nothing to discourage his students to read No Child Left Alive.
17. Board Policy AC - Prohibition Against Discrimination, Harassment and Retaliation, which prohibits sexual harassment, states that sexual harassment may include communications of a stlxual nature or based on sex; comments about an individual's body, sexual activity or sexual attractiveness; gender-based harassment and acts of verbal, nonverbal, written, graphic or physical conduct based on sex or sex stereotyping, but not involving conduct of a sexual nature. (Exhibit 12.)
18. Policy AC Curther states that "the district presumes a student cannot consent to behavior of a sexual nature with an adult regardless of the circumstances ." (Exhibit 12.)
19. According to Mr. Turner, No Child Left Alive contains communications of a sexual nature and specifically includes sexual content. (Tr. 193.)
20. Board Policy GBH - Staff/Student Relations provides that staff members are expected to maintain courteous and profossional relationships with students, and staff members have the responsibility to provide an atmosphere conducive to learning through, in part, the maintenance of physical and emotional boundaries wilh students. The policy further states that maintaining such boundaries is an essential requirement for employment in the district. TilC policy also states that communicating with students about sexual topics verbally or by any form of written, pictorial or electronic communication constitutes a failure to maintain appropriate boundaries.
21. Board Policy GRH also requires staff to maintain professional boundarics with students while using electronic communication.
22_ By making No Child Left Alive available to students for free on multiple occasions, Mr. Turner communicatcd with students about sexual topics. Jn addition, Mr. Turner utilized electronic communication in doing so through his various biogs, his Twitter account) and his Facebook account. (Exhibits 4, 34) 35, 36 and 39.)
23. Board Policy EHB - Technology Usage states in part that employees are personally responsible for the content they publish on blogs and that the use of technology resources in a disruptive, inappropriate or illegal manner impairs the district's mission, squanders resources and shall not be tolerated. It further states that employees may be disciplined or terminated for violating the district's technology policies and procedures. (Exhibit 14.)
24. Mr. Turner personally posted a link to a free download of No Child Left Alive on Room 210 Discussion, Room 210 for Teachers and multiple times through Twitter and Facebook postings.
25. Board Policy GBCB - Statl Conduct states that employees must become familiar with, enforce and follow all Board policies, regulations, administrative procedures, other directions given by district administrators and state and federal laws as they affect the performance of job duties_ Board Policy GBCB also requires employees to refrain from using profanity and to maintain courteous and professional relationships with students. (Exhibit 16.)
26. According to Mr. Turner,er, No Child left Alive contains profanity. (Tr. l 93.) In addition, by making No Child Left Alive available to students for free on multiple occasions, Mr. Tumer did not maintain courteous and professional relationships with students.
27. Board Policy GRDA - Distribution of Noncurricular Student Publications states in part that anyone wishing to distribute unofficial material must first submit for approval of a copy of the material to the principal or designcc 24 hours in advance of desired distribution time . (Exhibit 18.)
28. Mr. Turner did not obtain authorization from his principal or any administrator prior to making either No Child Lefet Alive available to students.
29. Board Policy HA - Instructional Materials state:; in pertinent part that staff are responsible for selecting instructional materials of the highest quality that will support the educational curriculum and goals of the district. (Exhibit 20.)
30. No Child Left Alive does not constitute instructional materials of the highest quality and docs not support the educational curriculum and goals of the district.
31. On or around March 5, 2013, Mr. Turner published a book entitled Scars from the Tornado, which he also authored.
32. Scars from the Tornado contains student information, pictures of students, and
works written by students. This information constitutes district property and confidential student information.
33. Mr. Turner published Scars from the Tornado under his name as a personal
project and sold the book through various commercial retailers nationwide, including on-line.
34. Mr. Turner did not seek to obtain permission from the district to use student works and information to publish a personal book.
35. Mr. Turner did not obtain permission from parents to publish their child's works in Scars from the Tornado.
36. Mr. Turner obtained signed permission slips from approximately half of the parents whose children had works published in Scars .fom the Tornado. That permission slip reads in part:
We would like to include work written by your child in an upcoming book, Eagle Pride, being written about the Joplin Tornado and our 2011- 2012 school year.
(Exhibits 24 and 27.)
37. Nowhere in the permission slip does it rcfer to Scars.from the Tornado. Nowhere in the permission slip docs it indicate that Mr . Turner was personally publishing a book.
38. Mr. Turner produced no permission slips for any book for approximately half of the students whose work was published in Scars from the Tornado. (Exhibit 27.)
39. Scars.from the Tornado is for sale to the general public on amazon.com for $3.99 and is also available at some retail locations. Mr. Turner announced on his biogs where copies of Scars from the Tornado could be purchased. (Exhibit 4, 5, and 30.)
40. Nowhere in the permission slips and nowhere in the promotional and marketing materials for the book does it indicate that Mr. Turner intended to donate part or all of the proceeds from the book to charity. (Exhibit 30 and 34.)
41. Based on the evidence, the book was promoted for personal gain, both financial and otherwise, by Mr. Turner. Mr. Turner frequently posted Scars from the Tornado for sale on his various blogs and through Twitter and Facebook. His marketing efforts typically included a link to where an individual could purchase the book for a price from amazon.com. (Exhibit 30 and 34.)
42. Mr. Turner specifically marketed Scars from the Torando to parents and students of the district and used his position as teacher to influence their purchase of the hook. (Exhibits 30, 34 and 36.)
43. District administration was unaware lhat Mr. Turner was publishing Scars from the Tornado until he publicly announced at a faculty meeting in February 2013 at the time the book was completed.
44. Such conduct on the part of Mr. Turner raises a reasonable question of conflict of interest with his duties and responsibilities as a teacher in the district.
45. Board Policy GBCA - Staff Conflict of Interest states that employees will not trademark, patent, copyright or claim ownership interest in any publications or· other intellectual property created by thc employee in their capacity as an employee of the district, unless authorized by the Board of Education. Further, employees will not use district property, including the district's Intellectual property, or confidential information obtained in their capacity as employees of the district to financially benefit themselves or any other person or business unless authorized by the Board or Education. (Exhibit I 5.)
46. The Board of Education did not authorize Mr. Turner to copyright Scars from the Tornado and did not authorize the use of district property or confidential student information by Mr. Turner.
47. On April 8, 2013, Ms. Tina Smith, Director of Human Resources) mct with Mr. Turner to discuss the conduct addressed in the statement of charges. At the beginning of the meeting, Ms. Srnith specifically told Mr. Turner that he was prohibited from recording their meeting. (Tr. 235).
48. To ensure that the meeting was not being recorded by Mr. Turner's cell phone, Ms. Smith asked Mr. Turner to turn off his cell phone. Mr. Turner representcd that the cell phone was off.
49. Mr. Turner secretly continued to record the meeting in a manner that was hidden from Ms. Smith. (Tr. 235_)
50. Mr. Turner subsequently revealed that he had surreptitiously recorded the meeting by posting the recording of the meeting with Ms. Smith on The Turner Report, which is one of Mr. Turner's blogs. (Exhibit 40.)
51. Board Policy GBCB provides in part that employees must follow directions given by the administration and must maintain courteous and professional relationships with other employees of the district. (Exhibit 16.)
52. By secretly recording the meeting, Mr. Turner violated Ms. Turner's directive not to record the meeting. In addition, Mr. Turner's surreptitious recording of the meeting was not courteous and professional behavior toward Ms. Smith, another employee of the district.
53. On or about April 18, 2013, Mr. Turner was provided with a statement of charges of willful or persistent violation of or failure to obey, the published regulations of the Board of Education and immoral conduct. Mr. Turner was served with an amended statement of charges on May 3, 2013 and was also served with an amended notice of hearing at that time. (Exhibit 1.) Such hearing was conducted on May 23, 2013 at 9:00 a.m.
CONCLUSIONS OF LAW
1. Pursuant to the Teacher Tenure Act, § l68.J02 to 168.130 of the Revised Statutes of Missouri, the Board of Education has the authority to terminate the indefinite contract of a tenured teacher as a result of immoral conduct and us a result of willful or persistent violation <.1f, m failure to obey, the school laws of the State or the published regulations of the Board of Education.
2. The Amended Statement of Charges informed Mr. Turner of the specific conduct for which he was charged with willful or persistent violation of, or failure to obey, the school
laws of the State or the published regulations or the Board of Education and immoral conduct
(Exhibit 1). The board specifically concludes that there was no evidence presented that they feel rises to the level of immoral conduct, but this conclusion in no way minimizes the findings of policy violations .
3. In order to be found responsible for a willful violation of or failure to obey, Board Policy, there must be evidence to: (1) an intent to act, and (2) an intent to violate or disobey a particular policy or regulation. Carter County Sch. Dist., R-1 v. Palmer, 582 S.W.2d 347, 349-350 (Mo. App. S.O. 1979). As noted by Missouri courts, there is seldom direct proof of willfulness. Significantly, Missouri Courts have inferred willfulncss from a single violation of a rule coupled with the teacher's prior knowledge of the rule. Burgess v. Ferguson Reorganized Sch. Dist., 820 S.W.2d 651 (Mo. App. E.D. 1991).
4. In order to be found responsible for a persistent violation or failure to obey,
Board Policy, there must be evidence of a continuing course of action in opposition of the Board Policy or regulation or admonition of administrators . A single violation of Board Policy is not a persistent violation. Carter County Sch. Disr .. R-1, 582 S.W.2d at 349.
2 Contrary to the assertions of Mr. Turner's counsel during the hearing, Mr. Turner was not charged with immoral conduct for engaging in inappropriate relations with a student or any innuendo related thereto. The Amended Statement of Charges specifically indicates that Mr . Turner was charged with immoral conduct due to his providing and promoting obscene material containing graphic dcpictions of sexuality, rape, infidelity, profanity, domestic violence, school violence, and alcohol and drug use to children. Although the administration testified that the circumstances surrounding the allegation caused them to have a heightened level of concern during their investigation, the administracion indicated that they found no evidence that Mr. Turner had engaged in inappropriate relations with a student. The resulting connection by innuendo was made by Mr. Turner's counsel, not by the administration.
5. The evidence establishes that Mr. Turner was aware of the Board policies at issue. (Exhibit 10.)
6. The evidence establishcs that Mr. Turner had notice of all Board policies as
indicated on the Board Policy Acknowledgement form. (Exhibit 6.) The evidence further establishes that Mr . Turner had notice of Board Policy GBH. (Exhibit 7.)
7. Mr. Tumcr's actions or promoting and providing inappropriate material that he
authored in No Child Left Alive to children, as described above, are in violation of Board Policy AC-Prohibition Against Discrimination, Harassment and Retaliation.
8_ Further, Mr. Turner's actions of promoting and providing inappropriate material that he authored in No Child Left Alive to children) as described above, are in violation of Board Policy
9. Mr. Turner's actions as described herein are in violation of Board Policy EHB - Technology Usage.
10. Mr. Turner's actions as described herein are in violation of Board Policy GBCB - Staff Conduct.
1.1. Mr. Turner's conduct, as described herein, is also in violation of Board Policy
GAEB - Teaching About Human Sexuality.
12. Mr. Turner's conduct, as described herein , is also in violation of Board Policy IGBDA - Distribution of Noncurricular Student Publications.
13. Mr. Turner's conduct, as described above, is also in violation of Board Policy TIA
- Instructional Materials .
14. Mr. Turner's conduct, as described herein, is also in violation of Boa.rd .Policy TIA
15. Mr. Turner willfully and/or persistently fa1led to obey the school laws of the State or the published regulations of the Board of Education by proviuing and promoting obscene matelial he authored entitled No Child L£r(t. Ali ve that contains graphic depictions or sexuality, rape, infidelity, profanity, domestic violence and school violence to eleven, twelve, thirteen and fourteen year old childre11 on multiple occasions and through various means atlcr he had notice of policies that would prohibit him from doing so without District authorization.
16. Mr. Turner willfully and/or persistcntly failed to obey the school law of the State or the published regulations of the Board of Education by disclosing students' confidential educational records and information without authorization and utilizing the work of students for personal gain and without authorization.
17. Mr. Turner's conduct, as described above, is in violation of Board Policy GBCA - Staff Connict of lnterest .
18. Mr. Turner's conduct. as described herein, is in violation of Board Policy lGD.8 - Student Publications .
19. Mr. Turner willfully and/or persistently failed to obey the school laws of the State and the published regulations of the Board of Education by publishing the work of students for personal gain without district and proper parent authorization after he had nolk of policies that would prohibit him from doing so.
20. The evidence further establishes that Mr. Turner was aware of Board Policy
GBCB, which requires him to follow directions given by district administrators and to maintain courteous and professional relationships with other employees of the district, including administrators.
21. Mr. Turner intentionally acted to record the meeting on April 8, 2013 with Ms. Tina Smith and willfully violated Board Policy GBCB by secretly rccording the meeting with
Ms. Smith, even after immediately being specifically directed not to record the meeting.
Accordingly, it is the decision of the Board of Education that Mr. Turner's employment with the District be terminated effective immediately.
Links to the posts I have written about my situation can be found here.