VOLUNTARY LABOR ARBITRATION TRIBUNAL

Michael C. Ryan, Esq., Arbitrator

In the matter of the
arbitration between:
SOUTH BURLINGTON EDUCATION
ASSOCIATION
- and -

Gr: Jay Hoffman-discharge

SOUTH BURLINGTON SCHOOL

DISTRICT

DECISION AND AWARD

For the Employer

Pietro J. Lynn, Esquire

For the Union

Jeff Fannon, Esquire

Lisa Shelkrot, Esquire, for the grievant

I.

Background.

Having determined previously in an award dated April

20, 2016, that this grievance is arbitrable, I held a
hearing on its merits on June 15, 2016.

The parties

jointly submitted the following issue to arbitration:

Did the South Burlington Board of School
Directors breach the collective bargaining
agreement with the South Burlington Educator's
Association when it terminated the 2015-16
teaching contract of grievant Jay Hoffman, and if
so, what shall be the remedy?

The parties submitted post-hearing briefs on July 7,

2016 .

RELEVANT PROVISION OF THE COLLECTIVE BARGAINING

AGREEMENT

ARTICLE 7. 1 ( 3) Just Cause.

No teacher will be ...
terminated ... without just cause.

On October 8, 2015, Superintendent of Schools David

Young suspended grievant Hoffman under 16 V.S.A. Section
1752 as part of his recommendation to the School Board for
dismissal for having:
behaved in a manner unbecoming a teacher.
Specifically, you engaged in inappropriate
touching of minors.
One of those children was a
South Burlington School District student and
another was not.
I have also concluded that you
were dishonest with me in responding to questions
about the incidents.
On November 16, 2015, the School Board upheld the
recommendation of Superintendent Young to terminate teacher
Hoffman.

With respect to one student only, it found:

a preponderance of the evidence that

inappropriate conduct by Mr. Hoffman with a
student entrusted to his care during the 2005
school year did occur. ... In the best interest of
the District and its students, it is necessary
and appropriate that [he] be dismissed as a
teacher/employee of the [District], effective
immediately.

The Association filed a grievance under the CBA over

this decision to terminate Hoffman's teaching contract and
his mentoring contract.

It cited a number of articles in

the CBA, including VII 7.3 (just cause).

REDACTED

s
n

n
,

The matter began when Superintendent Young received a

two-page letter from a 23-year-old former student, "the
complainant," on August 19, 2015, alleging that ten years
earlier, when she was in 7th grade in the spring of 2005, an
incident occurred with the grievant during a middle school

news-casting program class (SBNN) that he conducted.

was not in a typical classroom setting.

This

Rather, it was an

activity in which the students worked independently and as

a team to produce a weekly radio news show for the school
in a broadcasting studio.
The key part of the letter is as follows:
I was sitting in the sound booth; a small
secluded and soundproofed room behind the main
broadcasting stage.
I vaguely remember a rule
that stipulated that no student was to be left
alone in the sound room; however, in this
particular incident I was alone. Mr. Hoffman
came into the room and sat on an office chair
next to me. As he began to talk to me he placed
his hand on my upper thigh with his finger poised
close [to] the crease between my legs.
I felt
extremely uncomfortable.
I went home that night and thought about what I
should do.
The next day I made the decision to
go and speak with a guidance counsellor, Ms.
Rand.
I made it clear when I spoke to her that
confidentiality was extremely important to me
because of how much time I spent around Mr.
Hoffman.
In her letter, the complainant said she requested that
her name and story be kept confidential.

Nonetheless, she

specifically intended that her story be used by the school

administration in making a decision about the continued
employment of the grievant.

She then plainly agreed to

testify and, later, did so.

Superintendent Young irrunediately initiated an

investigation of this new 1 complaint.

He questioned the

complainant, her father, now-retired Guidance Counselor

Director Sherry Rand, and the grievant, each of whom
testified at the hearing or by video conference.

He

concluded that the complainant substantiated her story.

Her father addressed the parts of the story to which he was
privy.

Rand did not recall the incident at all.

Finally,

the grievant denied that such an incident took place and

that, instead, there was only an incident concerning
whether he had spoken harshly to and about the complainant
in class.

Young decided to recorrunend termination, not

believing the grievant's responses to him.

The complainant testified that the grievant recruited
her for his SBNN class, which was an honor.

However, when

this incident happened she irrunediately told her parents,

but also insisted that she handle it herself.

She reported

it to Sherry Rand, Guidance Counselor Director, and asked

for confidentiality.

The next day, however, she overheard

In a prior award between the parties, dated July 31, 2015,

only a few weeks prior to this complaint, I concluded that the
Board did not have just cause to terminate grievant Hoffman for
an earlier charge of inappropriate touching of a seven-year-old
child, the daughter of a woman he was then living with.
I
concluded, in key part, at page 6:
This is a complicated case with many potential issues.
Nonetheless, the critical one is whether the Board
established that the inappropriate touching actually took
place.
I conclude that it did not.

Rand telling the grievant about her specific complaint

using her name, contrary to her requested confidentiality.
She testified that she immediately confronted both of them
about this and then consulted with her parents. 2
to a meeting between her parents, herself, Rand,

This led
3

and the

grievant.

The grievant did not admit to any improper

behavior.

The meeting failed to resolve the matter other

than that the complainant would not be alone with the

grievant going forward, according to the complainant and
her father, or that the grievant would be more conscious of
and respectful of the complainant going forward, according
to Rand.

The parents did not raise the complaint with the

Principal or Superintendent because they had had an

unpleasant experience, according to the father, when they
had done so with Principal O'Brien in a previous matter.
The father testified that a school employee ended up
calling parents of classmates about the complaint.

This

made the concern worse.

REDACTED

REDACTED

Neither the grievant nor Rand addressed this testimony.

Rand testified that she was acting in a "guidance
capacity." That is, not as an administrator.
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REDACTED

R
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II.

Contentions of the Parties.

The District argues that the complainant credibly

testified that the grievant placed his hand on her upper
thigh near her crotch.
simply lying.

The grievant, who denied it, is

He is a sexual predator who must be kept

from children.
Unlike the prior arbitration regarding the grievant,
where it was a complainant's word against his, this case is
dramatically different:

here it is three witnesses to one.

The complainant, her father, and Rand, each recall that the
meeting was about his inappropriate touching of the
complainant in class.
fact.

Only the grievant denies this key

Thus, there must have been a complaint about

inappropriate touching and the grievant's memory cannot be

true.
If the complainant's testimony is credited, as it
should be, then the grievant's conduct must be considered a

gross breach of the standards of teacher behavior and his

employment must be terminated.

His lying about it to the

Superintendent and as a witness in this proceeding also

required that he be dismissed.

There is just cause for

termination.
The Association argues (1) that the burden of proof is
"beyond a reasonable doubt."

Numerous arbitration awards

express the use of that standard for a termination of

employment, an appropriate standard for the "capital
punishment" equivalent in employment.
(2) Given this high standard of proof, the District
failed to establish just cause for discipline by failing
two of the so-called "seven tests of just cause," i.e.,
that the investigation was not fair and objective; and that
the investigation did not produce substantial evidence or
proof of guilt.

First, the District's so-called

investigation relied simply on the complainant's and her

father's version of the event entirely while disregarding
its unbiased administrative colleagues' handling and
disposition of the 2005 meeting.

It is unbelievable now

that Rand would have ignored her statutory duty to report

an allegation of sexual touching.

It is also hard to

believe that the father would allow his young daughter to

remain in the grievant's classes and take more classes with
him if he believed that the grievant had touched his
daughter in a sexual manner.

It is also hard to believe

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that the parents would have failed to advance an allegation

like this to a responsible administrator after not
receiving satisfaction at the meeting with Rand and the
grievant.

The only legitimate conclusion is that the

investigation was not fair and objective.

It simply failed

to uncovered the weakness and unbelievable nature of the

complaint.
Second, there is no substantial evidence of or proof
of guilt.
ignored.

Administrator Rand's judgment at the time was

This well-respected administrator determined that

there was nothing worthy of disciplinary consideration at

the time.

Rand testified that no details like those in the

complainant's letter had been raised with her in the

meeting in 2005.

And Rand was without bias in this matter.

She had made numerous complaints to DCF during her tenure

but testified that in this case there was nothing to report
either to DCF or to the school administration because there
was nothing to report.

It would be shocking to conclude

that Rand ignored her statutory duty to report something

she reasonably suspects is the abuse of a child.

Thus, as

then, there was no just cause for dismissal now.

(3) The District has subjected the grievant to double
jeopardy.

The Fifth Amendment of the US Constitution,

which applies to the states, prohibits a person from twice

being subjected to prosecution for the same acts.

This

principle also prohibits an employer from disciplining an

employee twice for the same acts and is a due process basis
for overturning an employer's discipline.

The Vermont

Constitution has been similarly interpreted.

It is clear that the District was on notice of the
essence of this allegation against the grievant in 2005.
Yet he remained in employment until his discharge stemming
from the same allegation in 2015.

The decision made not to

discipline the grievant in 2005 was a decision of the

School Administration that should be permitted to stand.
The District, through its administrator, Sherri Rand, chose
not to act in 2005 and cannot now bring the grievant into
jeopardy again for the same alleged acts.
In sum, the arbitrator should find for the Association
on the stipulated issue, make the grievant whole for all
back wages and benefits, including retirement, and removal
of all notations of the discharge from his personnel file
and any other file maintained by the District and its
employees.
III.

Opinion .

There are a number of threshold issues to address

prior to the reaching the key issues:
1.

REDACTED

10

REDACTED

REDACTED

,
.

2.

The Association argues that reconsideration of the

complaint about the 2005 incident that had been reported to

Rand, a member of the administration, must be prohibited
now because it subjected the grievant to double jeopardy.
I reject this argument.
While I agree that double jeopardy has been adopted in
arbitration as an element of just cause, I conclude that it
does not apply here.

To qualify for jeopardy in the first

instance, the employer must have taken explicit notice of

the offending behavior.

That did not happen here.

Rand

testified that she was acting in a guidance counselor

capacity, not as an administrator.

Rand also did not ask

for details of the alleged inappropriate touching at the

time and, therefore, did not learn the actual details of
the touching.

Even assuming that she could have been

considered to have been acting on behalf of management in a

disciplinary matter such as this, she took no explicit
notice of the improper behavior at the time.

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See, Labor

and Employment Arbitration, Second Edition, Bornstein,

Gosline, Greenbaum, General Editors 15.07[2] [b].
3. The Association argues for the use of the standard
of proof used in the criminal courts, "beyond a reasonable
doubt."

Although a few cases can be found supporting the

use of this standard in arbitration, most arbitrators agree

that the "clear and convincing standard" is more
appropriate.

By contrast, the standard used by the School

Board, "preponderance," while it may meet statutory

standards, also does not satisfy the more rigorous
requirements of "just cause," a term established over
decades as a valid basis for discipline under a labor
contract.

In short, just cause is a standard that is

greater than a preponderance but not as high as the

criminal standard of "beyond a reasonable doubt."

require that I be convinced by the evidence that the

misconduct took place.
4.

The key questions are two.

(1) Can a ten-year-old

allegation raised by the now 23-year-old pass the test of

fundamental fairness to a grievant?

(2)

If so, are the

facts of the alleged inappropriate touching sufficient to

convince me that it happened?
warranted.

If so, termination would be

(1) I conclude that, despite the difficulties

inherent in a delayed report from the perspective of an

accused, the circumstances of a child complainant facing
the Hobson's choice of either not reporting wrongful
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conduct or reporting it in an environment where such may be

ill-received by classmates and adults alike in this
particular case requires due consideration of such a
complaint.

(2) Despite many common reasons for not

crediting a late report like this, the complainant's

allegation was compellingly credible, was supported in part
by prior consistent behavior in reporting to her father,
and was eventually corroborated by Rand in the essence of
the complaint discussed in the key meeting.

In contrast,

the grievant's specific but different recollection of the

meeting is not credible.

Therefore, I find just cause for

termination of employment.
(1) Had the complainant had been quite a bit younger
at the time of the alleged incident, there would have been
a stronger reason to discredit her memory so much later
reported.

Had she been quite a bit older at the time of

the incident, there would have been a stronger reason to

discredit a late report as one might for an adult who
failed to report such an incident.
bright line rules for these issues.

Of course, there are no

The combination here

of the age of the complainant, the precariousness of the

life of a student of that age, the actions taken to both
stop the behavior but to attempt to protect herself from
disapproval or worse in doing so, the articulateness and
force of her complaint and testimony, her candor and
apparent honesty, made her a credible enough witness that

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the complaint must be treated as timely under the

circumstances even though it was filed ten years later when
she was 23.
(2)

The complainant's letter and testimony, under

rigorously scrutinized at the hearing, was compelling.

That her father supported her report and testimony is not
surprising, but not necessarily conclusive.

He testified

that she had reported a hand on her upper thigh closer to

her crotch than to her knee, while she reported a hand on
her thigh quite close to her crotch.

They both testified

that the meeting with Rand and the grievant was about this
inappropriate touching.

In contrast, the grievant

testified to a different version of the same event, one

that was entirely benign.

Instead of the meeting being

about inappropriate touching, the grievant testified that

the meeting was about his talking in an uncomplimentary way
about her in front of classmates.
Whether the complainant's uncorroborated accusation
should stand over the grievant's denial would be a
challenging decision.

However, I conclude that Rand's

testimony plainly corroborated a significant piece of the

complainant's testimony in general and, more importantly,
directly contradicted that of the grievant.

From this I

conclude that the grievant's testimony is less credible

that that of the complainant, including his denial of any

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inappropriate touching.

I am convinced that the

inappropriate touching occurred as alleged.

Rand could not remember the incident initially when
questioned by Young.

She later recalled that she was not

successful in resolving the complaint beyond the grievant

being conscious of and more respectful of the complainant
going forward.

Rand, who had recently retired, testified

when called by the Union.

This was somewhat surprising.

She had not recalled the incident at all when questioned

initially by Superintendent Young in his investigation of
the complaint.

After speaking to the grievant's private

attorney, however, she agreed to testify for the grievant

about things she had now recalled.

Her testimony on direct

examination was vague and somewhat non-supportive of the

Board's case.

She did not corroborate the complainant's

testimony, mostly due to a lack of recall.

On cross-

examination, however, she ultimately did concede that the

key meeting-between the grievant, Rand, the complainant,
and the father-was about inappropriate touching.

After

what appeared to be a series of quibbling and beatingaround-the-bush answers, she did ultimately concede this
important fact.

She still did not recall the specifics of

the touching and did not recall whether she had even asked
about the specifics of the touching.

She had, in fact,

never actually reported an incident of inappropriate

touching of a student by a teacher to DCF.

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The Association argues that Rand was an unbiased

witness, who would not have ignored a complaint about
inappropriate touching since she was a mandatory reporter
of child abuse by statute.
different conclusion.

I disagree and reach a

As a mandatory reporter she would

have had a motive at the hearing to not admit to facts that

she should have reported in 2005.

This does not mean that

she was being untruthful, only that she is not necessarily

an unbiased witness.
It also was evident that she did not pursue the
specifics of the inappropriate touching and focused solely
on trying to work out some informal resolution.

She

testified that she acted as a guidance counsellor,

presumably excusing herself of any duty to investigate the
specifics of the inappropriate touching.

Of course,

whether any particular touching of a student by a teacher

is inappropriate requires an entirely circumstantial, caseby-case analysis.

While certain touching by definition may

constitute sexual assault, nearly all other touchings,

including unintentional ones, depend entirely on the
context.

A student may hug a teacher, for example, in an

entirely benign way.

But one is less likely to discover a

set of facts that would require a report to DCF and the

administration if the specifics of the touching are not
pursued when presented, the course Rand apparently took.

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All things considered, Rand's support of the

complainant's testimony that the meeting was about
inappropriate touching is ultimately pivotal to my being
convinced that the incident reported by the complainant did
happen.

The intentional, inappropriate touching described

by the complainant, although not necessarily illegal,

plainly and seriously of fended the basic norms of teacher
conduct towards students.

Such touching provides just

cause for termination.

The Association argues that the District did not
conduct a sufficient investigation to meet the standards of
just cause.

I disagree.

The Superintendent timely

interviewed each of the witnesses involved in the incident,

including the grievant, and recommended action.

The fact

that Rand said she did not remember the incident and later
testified did not make his investigation inadequate.
The Association also questioned how the father could
have not reported his daughter's claim beyond that of Rand
to the Principal or Superintendent given the claimed nature
of the touching.

The father testified, however, that one

prior time, three years earlier, he had reported a concern

of his daughter's to Principal O'Brien.

This became an

unpleasant experience for the entire family when a school

employee later called parents of other children in his
daughter's class about her complaint.

He felt this was

entirely mishandled and this was a deterrent to taking this

17

compliant further than his daughter wanted.

In addition,

the complainant was forceful at the time in asserting that

she did not feel molested but only felt extremely
uncomfortable and simply wanted it to not happen again.
She obviously had no desire to crusade against a widelyrespected teacher.

In my view it is entirely within the

realm of appropriate behavior by a parent to respect the

wish of a confident 13-year-old daughter, while hoping that
a meeting with the grievant and a guidance counsellor might
prevent any further incident, which it apparently did.
Regardless, these opinions, by the young student and
by her father, are simply not controlling over the
obligation of a school superintendent to take action as
necessary on behalf of the entire school system.
AWARD

The South Burlington Board of School

Directors did not breach the collective
bargaining agreement with the South
Burlington Educator's Association when it
terminated the 2015-16 teaching contract of
grievant Jay Hoffman.

Michael C. Ryan
Arbitrator
August 14, 2016

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