fifteen thirty one seventy three federal education association versus difference  overturned for two very important reasons one is an egregious due process violation done on the part right dr frank have on a superintendent at the school system where she was employed and in the decision process we believe that the penalty that was selected for her was unreasonable and violated the douglas factors and can guard the doctor call this his role the mediator  email even if it preceded the events that were discussed he concluded that on balance there was no evidence that the deciding official who not influenced by it was independent yes what could independent mean other than whatever club owners had to play it was an important tool or at least it didn't determine anything correct and that's what we think is at issue here proposing and deciding official he directed them and stated not a suggestion he said we need to terminate this person understand it more but if it's one factor  department of defense dependent school system what happens is when there is an allegation of any kind of abuse or inappropriate touching of students it goes to family advocacy for an independent investigation and then they they interview people they look at the situation and then they come back with an assessment and he was he was it casually saying they're not going to find anything but what's the significance of these essman to the family and reduce your risk pool well it's required by the by the school systems our own procedures you have a look what happens there if they if they make a determination of no foul what happens what's the significance of that they send that to the school system and then the school system can use it if they wish to decide whether or not to discipline the person or to let it go well or at the point where the e mail issue him room where there are charges against her at that point no no no so it fat for short they do an investigation of whether or not there's innocence they call it institutional child abuse and i think dr come on it was stating that he didn't think it was institutional child abuse and he was basically saying hey i don't think they're going to find anything but i want to provide what i think triggered their investigation or anything in particular this was just a periodic investigation done you know any time we have a again these are agency regulations or basically say if you any employee sees something that may be considered child abuse you don't have to come to the conclusion that it's child abuse but if you see an a touching that you think is discipline was proposed we did not have them and had the time that we gave our oral and written response we did not get knowledge of those that are copies of those things until the arbitration hearing when discover occurred at the very start and in our opinion tainted everything that followed after that and we were not provided with a copy of it until the arbitration therefore we were prevented first from knowing about it from making any arguments regarding it from asking for the our response to go to someone not under the supervision of a doctor come on a we were denied all of these things so you were unable to respond whether for example the the district superintendent has undue influence or the principal correct we could not respond to any of that we were rather blindsided we got this at the end and right before the arbitration done was that the best we could and we think the arbitrator was simply wrong in deciding that dr kirk and all he believed him to be trustworthy in his assessment that he wasn't influenced your betrayed or made a point and i'd like to know how you feel about the to he put forth what happened when he wondered her fired for that would have these were far more serious to two incidents of insubordination and physically harming a student would have been more likely to produce the resulting wanted which was removal now the actual letters that the actual notice a proposed removal comes out of a separate office at peachtree city and yes it did allege a lesser charge of inappropriate contact with the student but i don't think that that had any effect on what was going on a camp at fort campbell with the deciding of proposing and deciding official they were marching to count on  which was the which was the end result and the punishment selected for her removal was consistent with the charges that doctor count final said in his e mail that he wanted but but u removal was not based on corporal punishment in insubordination rack or as the principal had suggested that we could we could find the offense resume or nation causing bodily harm  we're arguing is that if you read it is that what the arbitrator did was misapplied the douglas factors he did not consider and not the arbitrator the agency misapplied the douglas factors they did not consider mediation i mean  case really that that you never had the opportunity prior to the arbor crucial to deal with these issues to actually address them at the at the process of prior to the creation absolutely and that's the due process you're talking about you know what's not that's not the whole argument as i understand it the argument is that even if it had been revealed to you it would still be improper to have mr kirk and all be the deciding one is that your client did not receive this he made all our knowledge of this e mail before the session to terminate was made you didn't receive it until the arbitration that's correct that argument number one or even number two is even if you had received the e mail before the term nation it was still inappropriate for kirk and all to be the deciding official when he received this e mail from c correct correct who would be the deciding fishel and well that's what we have what we have done again in other cases is we contact week week when we do our response and again have we known about e mail and the response we would have asked that he recused himself and have someone else be the deciding official and that would have been a decision made by people above dr kalponik it would have to be somebody from outside the system because everybody in the system knew of cal bonuses e mails wouldn't it yes it would have been somewhat outside of the kentucky school district definitely let me ask you something about the merits can we get to the charge of that on the merits of the case but let me put my question in a kind of personal context when i was a little boy misbehaving in school it was not uncommon for teachers to have a ruler and you know give you a little rap and you know that was life back then when my children were in school to say you're none of whom happen to be disabled so i don't have that experience but by that time teachers were not allowed if you will to physically in gauge with the students you couldn't run across the knuckles you could take them down or lead them down to the principal's office but you weren't allowed to physically discipline them parents had to do that i'm a little puzzled as to exactly what the environment of your school most to begin with the disabled children in this particular case one trial having tantrums and so on was a customary or was it understood that in some cases the inexperienced teacher would have to physically touch the child was that never permitted sometimes permitted always permitted how did that work in practice there isn't generally they discourage touching children in general but in a special education classroom which this was and it had non nonverbally communicative stun students who can't handle their motions yes there is they are allowed to touch the students in fact in many cases they diaper the students they feed the students they touch them in in various ways could they could they make the student have a timeout which was a favorite activity for my children that they would get time out could dance acquire these children  have time outs yes they can have the trial didn't want to participate in the what were they to do well in this particular case she had tried time out and it had been unsuccessful and this is where the situation here the merits of the case restraining is permitted in the air and in special education classrooms outside d d s but here indeed as they only want you to restrain th child in the event that they could hurt themselves or hurt others so what she tried what she is accused of or what she did that they did not like was she attempted to restrain the child to get the child to calm down and one of the two restraints that she did is in their c p r handbook about what it permissible when she apparently had a history of that because some time before this particular venture you have been given a letter of reprimand for being physically restraining the child previously well that apparently there were some incidents leave even before that grand jury yes there was they had a new principal all who had come from california who had it in the old way of doing a way of handling special education children that was not the norm at knox so there was a basically a adjustment period where someone who came in from california had one idea of how the student should be handled and the norm that had been going on with the slightly different and what our letter of reprimand was for was simply helping to know to teachers carry a student a normal a regular excuse me an irregular education student who was being who was not willing to go the principal's office and throw on a temper tantrum and they simply carry that child to the office the problem with the a letter of reprimand are the problem second the situation is you have to ask yourself well what do you do if the child won't go to the principal's office because everybody is responsible for other kids they can't just leave the child they're throwing the temper tantrum so you're excited to be between a rock and a hard place and they chose to carry the child to the principal's office where he would be safe and that was enough and that was so she must of had a history of not conforming to the local more is that the day which was you know march twenty second when dorian was having a meltdown all day long she was complying with the wills and principal she was traveling she didn't know what else to do she called she called for the principal to come down and help or show me how you want it done come and teach me what you want and even sent someone down to retrieve the principal but the principal never came which left her with the child and no guidance on what she what the boxes and just for purposes of clarity for my question getting a blue object or star and put it in this box and the principal came in in the future had her hand the child like that it looks like was putting not by the former principal of whom she had the year before by dr mallin it is with special needs children sometimes they do need assistance and if they're not if they are at verbal sometimes you have to take their hand and show them what you wanted to show them that you're putting the blue bear in the bowl with the blue hairs you have to show them and the only way to show them is to take their hand and move it but you are correct that was something that dr mclean object forth some of the factors age thirteen seventy seven of that decision and those factors seem to be applicable here and i'm wondering whether you agree with that and said  ex parte communications with a deciding official ex parte means to me there has to be a proceeding going on and so communications between supervisors before any  discipline is proposed does not meet the definition of an ex parte communication it's not the same as the everything that we're dealing with today seems to me to have been in process when the super to interrupt the e mail because he's referring to that was the first question that we had turns out that there's a f second we have these two incidents where ms gravest has inappropriate physical contact with this child the principals made aware of this of this of these incidents and the principal is required to submit this report child abuse essentially child appropriately i believe sends a copy to her supervisor saying this is happens in my school making you aware of it i don't think there's anything wrong with that and as one might imagine the superintendent is upset about th so at that point in the proceedings he's already made the decision the superintendent has made the decision let's fire her and let's fire for these reasons corporal punishment and insubordination so my question to you is at what point prior to the arbitration did the teacher have the opportunity to address the charges that are being levied against or dealing with corporal punishment and insubordination there were never any charges against we need to try to terminate or the principal replies in in and says i strongly support true nation it seems to me that that that shows that the principle is agreeing with the district actually happened the tape the notice that was actually given the opportunity to respond it was actually provided the decision to remove her for inappropriate physical contact with the trial that was actually made and then we have testimony received by the arbitrator in the arbitrator's determination transactions here what you really orally is that where there is testimony that the deciding fishel is not influenced and the arbitrator makes a finding that he independently th with purpose behind the no influence rule is you don't want inferior officers ginning up  joining up excuses for carrying out the superiors desire to get rid of what the superior thinks may be a problem person and so the question then arises is there any evidence to suggest that this disciplinary occasion was ginned up that is what is the evidence to support the fact that these events actually occurred and if they did occur what is the evidence to suggest that the penalty in this case is unreasonable or not usual in this kind of a situation the concern with influence is that people then create facts or circumstances that essentially trapped the individual you could make the argument that that this was a clearly an independent event and the question then is is the penalty appropriate why is the penalty appropriate here or why should she have been fired instead of giving him something for visual training or opportunity to correct yourself that the penalty was appropriate because she did have prior discipline on the specific conduct she had recently received training about when it's appropriate to physically restrain a child and if it was a very very serious conduct conduct that could have opened they could have entered the child conduct that could have opened the school district to litigation  training had hadn't helped so there was no there was no sense that rehabilitation was going to be possible and the fact that this particular charge isn't on the table penalties doesn't matter and the interest is not limited to the table penalties you can look at civil penalties for guidance but the charge was inappropriate physical contact with a child there are two well she actually only been a teacher for about two years she'd had previous six significant previous experience working with special needs children in a more institutional environment but she'd actually been fairly recent and we should  the constitution required that this e mail ever be disclosed to her because it was not the piece of evidence relied upon by the deciding official and because it had better than my hypothetical about the court situation you know the one making a difference whether the e mail was relied on in reaching the decision the very fact that it was sent is enough to make it an improper proceeding to require a person correct yes i think the distinction would and again i think we have to look sort of real life here the distinction is that that the relationship between a litigant and the court is a very different relationship than supervisors and management values are very different relationship the supervisor has more influence over the deciding official in this case than in my hypothetical about the living in the court but potentially although again i think that the evidence here demonstrated that there was government does the government consider once this e mail and so some four years after the removal but right before the arbitration began there was requests for documents and this was one of the documents that was produced by frankly i think most of th reverse the arbitrator she gets her job back and back pay and everything else could she be this is not a criminal case you know there's no double jeopardy could she be