STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

BERNARD P. MANCUSO :

V. : A.A. 04-70
: A.A. 04-60

DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW :

D E C I S I O N

GORMAN, J. These lawsuits are brought pursuant to § 42-35-15 of the General Laws of Rhode Island. The petitions ask this court to reverse the ruling of the Department of Labor and Training Board of Review which overturned a referee's decision and disqualified the petitioner from receiving unemployment benefits because he was terminated for "good cause" under § 28-44-18.

I. PROCEDURAL HISTORY AND FACTS
This dispute has followed a rather convoluted route before reaching its current destination. After holding other jobs and working in a teaching capacity in different places for a number of years, plaintiff was hired as a full-time, high school English teacher by the Providence School Department in March 2002. During the period relevant to this case, he was a probationary employee.

Based on information that came to the attention of school authorities in the latter part of September and early October 2003, claimant was notified on October 16, 2003 that he was placed on "administrative leave." At that time he was instructed not to enter school property without permission and to refrain from communicating with students. On December 15, 2003, he was fired. The petitioner applied for unemployment benefits, and his claim was denied by the Director of the Department of Labor and Training based on a determination that Mr. Mancuso was disqualified for "proved misconduct" under the provisions of § 28-44-18. This decision was appealed and was reversed by a referee, and a further appeal was taken to the Board of Review of the Department of Labor and Training. After an April 22, 2004 hearing conducted by its chairman, but before a decision was announced, the teacher and the school board settled their dispute. Under the "settlement agreement" reached by the parties, the school board rescinded its termination of the petitioner, and converted it to a "disciplinary action," calling for an unpaid suspension from December 19, 2003 to the end of the 2003-2004 school year. The agreement provided that Mr. Mancuso would resume his employment as a second year probationary teacher in September 2004. The settlement also provided that "[t]he Employer will not contest the Employee's claim for Unemployment Compensation."

Apparently unaware of the agreement, on May 20, the board of review reversed the referee's decision and ruled that plaintiff was fired for proved misconduct and, thus, was ineligible for benefits. In response, the claimant filed case A.A. No. 04-60, in effect, contending that because the employer was self-insured for unemployment claims and agreed not to contest Mr. Mancuso's eligibility for benefits, the board should find him eligible.

On May 26, the court remanded the case to the board of review "for reconsideration before the full board based upon new evidence." Although not specifically identified, the "new" evidence was, obviously, the agreement between the school authorities and the petitioner.
Following a hearing two weeks earlier, on June 28, 2004, the board denied relief in this case ruling that "[n]otwithstanding the employer's status as a reimbursable employer (self-insured), the Board's jurisdiction to decide Employment Security benefits is exclusive." The board member representing labor filed a dissenting opinion stating that he believed the referee's decision was correct and that plaintiff's conduct should not disqualify him for unemployment benefits.

Based on the board's June ruling, a second petition, No. A.A. 04-70, was filed in July 2004, again challenging the board's finding of ineligibility for benefits.

In its May 20, 2004 decision, the board made the following findings of fact:
The claimant had worked for this employer in the capacity of a teacher. His last day of work was September 12, 2003, when at that time he went out on a leave of absence due to medical reasons. His class was covered by a substitute. The claimant would provide the substitute with various subject matters for discussions with students on a daily basis. The employer presented two items, which were composed in October 2003, which were found to be offensive to students and parents.

The claimant had an unblemished employment record with the exception of these two items. The intent of the writing was to have these students relate on their level for discussions of material. In retrospect the claimant acknowledges that the language and the content could be found objectionable. The claimant was initially placed on an administrative leave of absence and subsequently terminated.

The rather cryptic reference to "two items" that were the basis for terminating of plaintiff's employment, and the acknowledgement of an "unblemished record" need further explanation to understand the circumstances of his firing - and, perhaps, why the action was converted to a suspension. The record suggests that Mr. Mancuso may be an exceptional teacher, but also is one who showed very bad judgment.
In September, petitioner had surgery and his doctor directed that he remain out of work for five weeks. After eight to ten days, however, the department head at Mr. Mancuso's school contacted him and explained that the substitute teacher who took over his two junior English classes was having a "lot of difficulty." Petitioner was asked to provide "some assistance" to the substitute. What followed was a system where Mr. Mancuso would prepare materials and assignments for the students and drop them off with the substitute. The petitioner would also get homework written by his class and correct it. While the board's findings do not identify them with any specificity, it appears that there were two communications with his students which led to the school board's action. One was a note to one of the girls which stated, among other things:
- How could ya think the poem was good if ya didn't . . . uhhh . . . like . . . UNDERSTAND a FREAKIN THING about it! HUH!!

- But . . . Chrypes! (CHRYPES?? Is that faggoty or what? Well - if I wrote "Christ", I would be taking the name of GOD in vain: RIGHT?)

- Can't [another girl's name] write for herself? Can't she at least communicate with me in her own words? What? Are you guys twins . . . or GAY . . . or sumthin' like that? HUHHH?? Oh sorry. I didn't mean to be knochin' your private sexual persuasions.

- THANK YOU SO MUCH FOR YOUR WELL-WISHES. (I think that makes me love you and want you very badly. (Uhhh . . . Did I say that? No! Prove it! This note could have been written by the phantom of my mind. Actually, . . . the UNCONSCIOUS is the Discourse of the OTHER. I Mean . . . The UNIFIED CENTWER OF THE SELF IS ABSOLUTE FICTION.

The second set of materials which prompted disciplinary action was a draft "memoir" petitioner sent to his students in an effort to encourage them to write about their experiences in an uncritical way. His example included the following:
- I remember when I broke into RADIO. On my first job at a soft-rock station back in the late seventies. (I had quit teaching because after eleven years, the administration decided that it didn't want me smokin' dope with young kids . . . WAIT A MINUTE! THAT'S NOT TRUE! NEVER HAPPENED DUDES!)

II. DISCUSSION

A.

Initially, the court must determine whether the board had the authority to disqualify petitioner from receiving unemployment benefits where the employer has removed its opposition to this -- and the employer is self-insured for these expenses. Although his petition requesting reversal of the board refers to the "settlement agreement" reached with the employer and seems to rely on that document, he does not challenge the board's assertion that it has exclusive jurisdiction over the question of eligibility for unemployment compensation, or suggest that the board illegally ignored the agreement. Also, the court has found no statute or case law suggesting that the board exceeded its power. Therefore, this court need not address this question further.
The remaining, substantive issue is more difficult. In order to grant the relief requested, the court must be persuaded that the board's decision was "clearly erroneous" when it ruled that claimant was fired for "proved misconduct." In considering this standard, significant guidance is provided by our supreme court through its opinion in Turner v. Department of Employment Security, Board of Review, 479 A.2d 740 (R.I. 1984). There, citing a Wisconsin case, the court said this type of misconduct:
"is limited to conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of the standards of behavior which the employer has the right to expect of his employee . . . good faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute." [Citation omitted.]

At 741-742.

In reviewing the board's decision, the court is limited and cannot substitute its judgment for that of the administrative tribunal on questions of fact. The statute authorizing appeals to this court imposes this restriction through § 42-35-15(g), and our supreme court has uniformly held that judicial review of administrative decisions are "limited to questions of law." Bunch v. Board of Review, Rhode Island Department of Employment and Training, 690 A.2d 335, 337 (R.I. 1997). However, in some settings the conflation of facts and legal principles will blur the line between law and fact. In many cases our supreme court distinguished the responsibilities of the trial tribunal and the appellate review by acknowledging that "[t]he question of whether an employee had good cause to leave his or her job is, in the first instance, a question of fact. (citations omitted)." Powell v. Department of Employment Security, Board of Review, 477 A.2d 93, 96 (R.I. 1984). But then usually goes on to explain that the court will determine "'what circumstances will constitute good cause [is] a question of law to be resolved by this court.' Murphy v. Fascio, 115 R.I. 33, 36, 340 A.2d 137, 139 (1975)." Id. Using this analytical approach, the court will search the record for facts, which, of course, could only be found at the trial level, to decide whether to affirm the decision of the board. If there was no competent evidence to sustain the finding and when considering the record as a whole, only one conclusion could be reached, the decision would be reversed "as a matter of law". See Rocky Hill School, Inc. v. State of Rhode Island, Department of Employment and Training, Board of Review, 668 A.2d 1241, 1243 (R.I. 1995).
When discussing the employment security laws in other cases, our supreme court has said that the issue before it "is a mixed question of law and fact." D'Ambra v. Board of Review, Department of Employment and Training, 517 A.2d 1039, 1040 (R.I. 1986) (determining whether an employee left his job for "good cause" as defined by § 28-44-17). Under this analysis, the state supreme court has said that if "the facts as found could have lead to more than one reasonable conclusion," the decision of the trial tribunal will be affirmed. Id., Rocky Hill School, Inc., supra, 668 A.2d at 1243.
B.
In the case before the court, there is no dispute about the facts presented to the referee or the board. The teacher admitted that he prepared the written materials and delivered them to a substitute to be distributed to students. The contents of the documents were not challenged, and the school officials never suggested that Mr. Mancuso intended to harm the school or the students. It was clearly an "error in judgment" and as such, the petitioner contends that the conduct did not satisfy the "good cause" standard set out in § 28-44-18, and he should not have been denied benefits.
It is obvious that Mr. Mancuso is an excellent teacher, and that he went well beyond what could have been expected of someone who has had a significant operation or surgery. He prepared materials to assist a substitute, and, apparently, delivered them to the school. He also corrected work and wrote notes to encourage individual students. In addition, petitioner received a glowing evaluation during the spring of 2003. At that time, the evaluator said that it was "absolutely great to see a teacher with a burning passion to do what he is doing. . . . It was an honor. It was a pleasure. We truly have 'lucked out' to have you."
Given all the circumstances in this case and the Rhode Island Supreme Court's instruction that "'good faith errors in judgment . . . are not to be deemed "misconduct" within the meaning of the statute,"' Turner v. Department of Employment Security, Board of Review, supra, 470 A.2d at 742, this court must determine whether there are some lapses in judgment which are so clearly detrimental to the goals of an employer that they come within the provisions of § 28-44-18. The answer to that inquiry is, yes.
The court believes that if, for example, a teacher were to bring a loaded hand gun into a school, as a matter of law, it would be "misconduct" under § 28-44-18. Although the instructor might have some pedagogical rationale for exposing students to this risk, the danger is so great, and the consequences of an accident so severe that it would be considered misconduct as a matter of law -- even where it is an isolated event.
Other errors in judgment might be identified as obviously inconsistent with the employer's objectives, but less serious in terms of possible injury and, therefore, probably would not always be disqualifying. An example of this might be a teacher using an obscenity for dramatic effect.
What we have here is a case where a teacher has written some outrageous things in a patent attempt to provoke responses from his students. If we presume that this was his intent, and there is nothing to suggest otherwise, the objective was laudable, but the means highly questionable. For a teacher to make sexually charged statements to a student, especially to one of the opposite sex, is a recipe for confusion at best, and raises the likelihood of creating a major problem in most instances. Because it is virtually certain to result in strains between the teacher and student, as well as jeopardize the smooth operation of the school, this conduct could be classified as reckless rather than merely bad judgment. The same is true for a statement indicating that the teacher used drugs with students. For those reasons, the court concludes that after examining the record as a whole, there is reliable, substantive evidence to support the board's decision.

Using the alternative approach and considering the issue before the court as a mixed question of law and fact, the same conclusion is reached. As our supreme court said in D'Ambra v. Board of Review, Department of Employment Security, supra, 517 A.2d at 1041, "we are of the opinion that the facts as found could have led to more than one reasonable conclusion." Therefore, the decision of the board must be, and is, affirmed.