appear on page forty eight of the trying to fix with what the arbitrator found he actually did you see that that clicked that conclusion is not so looking at the specifications mr may very was accused of a more than one occasion squeezing a have storms really tight and picking him up by the upper arm and slamming him into the seat he did no such th away the specification says that they have smothered serve the finger like bruising on his bicep but even the specification does not accuse specifically ms mayberry of causing that and for somewhere down the line i think that mr mayberry admitted that on one occasion each has two others two other students of j j m n j l to me also assisted to sit upright actually was the state in other words it does not necessarily win when there's multiple this case law and this circuit what that when there's multiple charges and the  case is cases are existing that is correct there too that because you wanted to stand were support well there's no i would say there to that to some extent we can identify what they were talking about but the conduct was of an entirely different nature very benign barry broke violated a rule that says you cannot touch a child of them to protect his or someone else of safety that will doesn't exist what she perhaps has in her mind was section of the memorandum of understanding which appears on page one forty seven through an appendix a negotiated agreement between the teachers union and the agency which gave assurances that if a teacher uses reasonable force to restrain a student from harming himself or herself or destroying property that that shall not be constitute child abuse of corporal punishment that's not to say that there's not a rule of conduct that says any other form of touching of the child is punishable is merely an assurance given in an agreement with the union that teachers would not be disciplined for that particular circle right i  himself or herself or destroying arming others of this form property i think it was an assurance to the union that if that then if that happens a teacher would not be punished that is not itself however will the conduct nourse it's necessarily saying that any other form of touching not what mr may vary it and in fact another important point is that the deciding official and the revealing official the two dogs officials that made the final terminations case said they treated this as a case of child abuse said  that they decided to terminate him because he engaged in child abuse as the agency admitted in their brief he wasn't even accused of child abuse that wasn't any of the ac for example from mr thompson the superintendent why did you make the decision this isn't a joint appendix to ninety six why did you make the decision to remove missed i'm a very because upheld she says that again on page r j a five twenty what you stated that the earlier you consider the allegations of child abuse in this case very serious and so yes i do the agency admitted he wasn't even as you stated earlier there was no denial or admissions answer generally denies any misconduct question but there is a denial answer yes he admitted on cross examination that the allegations were denied should we  head there was one parent complaint among the next day he was removed from the classroom and hadn't been back since and that was it that was it was so there wouldn't it then we were overstepping or whatever it is that was it was now he said he was now and the hearing he said he was quote trained and corporal punishment when it when he was asked about that he said he was merely told i'm reminded of the being of the school year not to interestingly the arbitrator found that he violated dad's rules against corporal punishment however he was not charged with the piloting or punishment that's not been the specifications of the charge and also interestingly the darts policy of corporal punishment is simply not on the record it was never introduced in the and isn't this just a generational misunderstanding i saw he was twenty seven years in service that means he had been there a long time under the standards of inappropriate touching that this applies to every single one of my teachers from the first to the tenth grade would have to be removed for swatting me with paddles and by the way i deserved every one  is usually a sexual connotation here to move people what they really moved me when i was a kid your honor respectfully this is not a generational misunderstanding it's up to the school to set the policy and maybe different schools have different policies in different eras but the regulation here that was cited in the notice of proposed removal five seven five one the good record for twenty seven years he doesn't even get a warning he didn't get a warning because the school never knew about it until that first day when all of the model t the parents that came forward said he was a wonderful teacher no not all of them your honor not all of them we understand that that's why we're here they're warning what happened pictures as i picked up the grief i thought wow this got us into an animal and then i realize what he did is i wouldn't of discipline me at all it would have encouraged me to be worse your hon against me i know what horses and i know when i read it when i see it you are at the very conclusion of mr mayberry testimony page seven forty nine of the appendix after describing all the behavioral problems that he was dealing with secure a couple of students by the arm and that was to alter their behavior which is prohibited by the regulation identify hasa twenty seven year teacher their job without a warning end read the conclusion he's not sure what effort was behind it well you're out of the the arbitrators finding looking at the douglas factors based upon the testimony with based upon actually mr members testimony because he did not seem concerned that he might have hurt these children and when he testified he moved these kids use of hands to pick him up and move them or he used the word grasp eve grasp the kids to pull him up in the chair or push them down both my teachers were both my parents were teachers my dad was a football coach he used to kick the kids in the butt when they weren't moving fast enough should have been removed it depends what the policy was at that school in that at that time your honor the regulation that applied here that's not interesting you know when he started it was very clear that that was expected and demanded now what if that policy changed in his the court can't really second guess to the not permitted to use physical force to alter behavior what is inappropriate touching me did i just in appropriately touch my colleague touching this didn't give me permission then i was that inappropriate it appropriate here your honor is something you used defined by the regulations to try to alter the child's behavior a touching that might have been a gentle positive supportive tap on the shoulder to a first grader might be ok but what happened in this case was there was a pattern of th four incidents over two years and this believe me knowing how students you can provoke requires some kind of discipline this sounds like a minor amount of correction your honor two points to get back to the question the deciding official decided that he could not be really be really really be real you really have illustrated the arbitrator in looking at his demeanor he didn't really seem to care whether he had hurt the children or not he didn't he didn't know but he didn't seem to be that all concerned and when the principal of the supervisor decide you know i no longer trust this teacher in the classroom all by himself with twenty first graders that the court has to give a lot of deference to the choice of penalty there's no basis for mitigating the penalty with just their policy does it refer to physical force a readjustment for physical force is not part of the discipline policy is it so we have the there equating physical force and a physical adjustment which i'm not sure that the school policy supports that but then he goes no and then it goes it's the no point did you advise person to going to be readjusted and he says he's funny goes that's true i never did well how can he i mean if the student needs readjusting like you really expect them to notify the parent first before you do their honor he can always discipline policy that he gave the parents at the beginning of the school year with the progress of set of measures where he would warn the child maybe put the child's name on the blackboard and if need be contact the parents and the principal he never did any of that he never asked for help he basically never told the parents he was going to be physically moving the kids around in direct violation of regulation five seven war one and again that's at seven seventy two of the appendix there was proof with respect to specifications a b and d e because the involved the four students over a period of time this was a pattern the school never knew about it until the first child came forward so there was no ability to give a warning because they never knew he's in the classroom by himself when an allegation of child abuse comes up under the regulations the school was required to report it to be investigated and then it was within the discretion of the principal to put him on paid administrative leave with respect to specification being that involved j and the special needs student who hadn't yet been diagnosed but but  to the front is that physical force to the degree that we're talking about an inappropriate touch and under this regulation that applies yes because it's not permitted to alter b what if i was a classroom teacher and i'm that's not what happened here on repeated occasions he used his hands to either pick up the child from under the shoulders or we graft was the word he used wrapped the child and moved them or else picked them up in the chair and pushed them down because they were paying attention that's not permitted under section two ne of the regulation which it was lighten the load to remove just to pursue those w sustain the penalty or removal if one or more of the specifications are sustained even if not all of the specifications are some of the issues the sense perhaps of the magnitude disciplinary action taken no warning so up squeezing two hundred by the by the chin you are there was no warning because the school didn't know about it until this one child came forward and made the allegation of child abuse for which the german police investigated and the c i d did an investigation the agency didn't charge him with child abuse than this or maybe barry you got a warning because the regulation was in effect and he wasn't permitted to do it he didn't get an official warning you can't do this anymore the school didn't know about it and for a school to believe i know that the teacher has violated the policy there are serious allegations of child abuse the by law must be reported they removed him from the classroom  next day put him on paid administrative leave you know for almost a year until the notice of decision went out and the and the decision while they investigated and then what they charged him with was the one charge inappropriate touching because it's clear from the so would you are you asking us to look at the overall record twenty seven years etc and looking at whether we left now i'm asking you to look at the fact that the proposing deciding officials in the grievance dr bristow and the area director for all of europe looked at these facts and given that the regulation was clear cut a teacher may not use physical force force to alter the behavior first grade students this was a pattern of behavior that the school didn't know about these were young very vulnerable children children who had a parent either deployed in combat or about to be that mr testified that he did this when he was annoyed or at the end of his rope or of the last resort and those fights are at appendix six nine six seven two six seven thirty one the arbitrator characterize that having observed as i mean or as that he was angry even if he didn't and meant that he was angry in his own words he said i did this because i was at the end of my rule i'd lost patience it was a last resort he said even though he didn't follow any of his own progressive discipline policies didn't tell the principal didn't ask for help didn't tell the parents would just if he was frustrated or at the end of his rope to pick these kids up move them or them down in the chair and pull him up in the chair so they would pay attention and not be so disruptive it's a tough job to be a teacher but that the job he had and that's a responsibility he had for these very young children and the arbitrator having looked at all the evidence and observed his demeanor felt that you know his inappropriate touching by using physical force to address these behavioral problems not to address the der child abuse and related issues for which he was not charged and there is for which he was not charged and also they were is and there is no evidence that any of the teachers were ever told mr mayberry any othe teacher and there was no policy guidance or given to teachers or whatever saying you cannot touch a child you cannot touch a child of to alter their behavior including helping them with the falling out of of a falling out of  out of state secondly on the second point is to make was there was talk here about a pattern over two years the only thing that was alleged outside of the immediate school year when this took place was seventy eight f second twelve forty six when many of the original charges are not sustained then the agency imposed penalty must be scrutinized carefully put in quote thank you mr her our last case today is lost three village corporation