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Alleged Moral Turpitude By E. Frank Cornelius, PhD, JD email@example.com www.arbitrator.org
At the Skills Enhancement Workshop, sponsored by the Federal Mediation and Conciliation Service and the National Academy of Arbitrators, held on September 16, 2011 in Miami, Florida, a principal topic of discussion was a white paper entitled Educator Quality for the 21st Century: A Collaborative Effort of the American Association of School Administrators and the American Federation of Teachers.1 It is a framework for “the continual support and development of the educator workforce.” The focus of this note is on Appendix C entitled “Procedure for Teacher Misconduct”, which will be referenced as “Misconduct Procedure” or simply “Procedure”. The Procedure begins by emphasizing the need for objectivity in defining teacher misconduct: It is essential to formulate objective criteria that trigger the process. These criteria must be specific to limit the potential for disciplinary procedures resulting from vague and subjective allegations. This process would only be triggered by the specific objective criteria, consistent with state legislation, set forth below that are designed to provide more specific notice to the teacher, thereby limiting arguments that the allegations are so vague that
Posted at http://www.scribd.com/doc/67311348/AFT-AASA-Framework. That and several other documents and cases cited in this note may be accessed from http://www.scribd.com/collections/3252905/Alabama-Fair-Dismissaland-Teacher-Tenure-Acts.
more time is needed for discovery or clarification. Id. @ 1, ¶ 1). Of the nine specific types of misconduct listed, the first two concern “moral turpitude”: i) ii) Conviction of a felony or other crime involving moral turpitude. Indictment or information charging a felony or other crime involving moral turpitude.
Id. Of primary interest here is alleged misconduct of the second type ii), in which a charge involving moral turpitude is pending. There is some ambiguity in the phrasing of these two types of misconduct. As written, it may suggest that a felony involves moral turpitude, which need not be the case, e.g., negligent homicide. It probably would be clearer if the phrasing were “a crime involving moral turpitude or a felony”, if that is what is meant. Another possible interpretation is “a felony involving moral turpitude or other crime involving moral turpitude”, but then it would have been simpler and clearer to say “a crime involving moral turpitude”. The meaning most assuredly should be clarified in any collective bargaining agreement.2 An allegation of moral turpitude has some very serious consequences for a teacher so charged: “A Complaint alleging a felony or other crimes involving moral turpitude
Ala Code § 36-26-103(b) provides that “no pay shall be provided in cases involving moral turpitude.” There are 74 exceptions for moral turpitude throughout the Alabama Code.
may be filed at any time.” Misconduct Procedure @ 2, ¶ 2)a)iii). “It is important for purposes of ensuring a fair resolution process that the teacher continues to receive pay during resolution of the dispute either through informal resolution or a formal hearing and decision, except in cases where formal charges of a felony or other crime involving moral turpitude are filed.” Misconduct Procedure @ 5, ¶ 2)g)i). “Immediate suspension without pay where indictment or information charging a felony or other crime involving moral turpitude is filed.” Misconduct Procedure @ 5, ¶ 2)g)ii)(1). The difficulties with applying moral turpitude exceptions of the types described in the Misconduct Procedure are multifold: (1) There is no such crime as “moral turpitude”; rather, it is a stigma attached to
certain crimes. “The concept has been described as one which is innately relative, depending upon contemporary moral values as well as the motivation of the offender in committing the offense in question and the degree of its inimical quality.”3 (2) The Misconduct Procedure does not specify the state or other geographical
area in which the misconduct must occur in order to trigger the moral turpitude exceptions. Alleged misconduct may occur in a foreign country, where “moral turpitude” may encompass behavior which is perfectly acceptable in the United States. A collective bargaining agreement should address the geographical issue. (3) In general, there is no comprehensive definition of moral turpitude. The
21 Am Jur 2d, Criminal Law §22 (2008).
California Supreme Court has described moral turpitude as “an elusive concept incapable of precise general definition.”4 When confronted with the question of defining moral turpitude, the Ninth Circuit described it as “a nebulous question that we are required to answer on the basis of judicially established categories of criminal conduct.”5 (4) Complicating the issue of moral turpitude is the fact that the concept may
vary from state to state. Moreover, some federally proscribed behavior may involve moral turpitude. A collective bargaining agreement might limit “moral turpitude” to conduct that would involve moral turpitude in the state in which the teacher is employed. (5) It may be unclear as to who is supposed to make a determination of moral
turpitude. The procedure calls for principals to file all Complaints but does not say upon what basis they are to determine moral turpitude. Even a criminal indictment is unlikely to describe a charge as involving moral turpitude, so that someone acting on behalf of a school district must make a legal determination. (6) If a mistake is made, the teacher may be entitled to substantial damages and
the costs of defense: In the event of dismissal of the charges, the teacher should be reimbursed for any back pay, as well as any other economic damages that the teacher can demonstrate he or she incurred as a result of the charges, and returned to
In re Higbie, 6 Cal 3d 562, 565 (1972). Nunez v Holder, 594 F3d 1124, 1124 (9th Cir 2010).
the classroom. Misconduct Procedure @ 6, ¶ 2)i)iii); emphasis supplied. If the allegations against the teacher are ultimately dismissed, the school district should reimburse the union/teacher for expenses and fees for representation. Id. @ 3, ¶ 2)c)i)(1). The purpose of this note is to share some of the lessons learned from cases decided under the Alabama Fair Dismissal Act, Ala Code §§ 36-26-100 et seq., which parallels the Alabama Teacher Tenure Act, Ala Code §§ 16-24-1 et seq.6 Although the provisions of these acts are statutory instead of contractual, they operate very much like the provisions described in the Misconduct Procedure. The Alabama cases involved employees of Bishop State Community College, who were dismissed for conduct allegedly involving moral turpitude.7 While the lessons were learned under Alabama law, they have wide applicability. In [MP] v Bishop State Community College, the employee was told only that: You committed financial improprieties in relation to the receiving of financial aid, to falsifying your grade in a course, and to falsifying an
See Cornelius, The Notice Provisions of the Alabama Fair Dismissal and Teacher Tenure Acts, posted at http:// www.scribd.com/doc/14952250/The-Notice-Provisions-of-the-Alabama-Fair-Dismissal-and-Teacher-Tenure-Acts. This article and some other references may be accessed from http://www.scribd.com/collections/3252905/AlabamaFair-Dismissal-and-Teacher-Tenure-Acts. 7 The author was the hearing officer in one of those cases, [MP] v Bishop State Community College, 08-2 ARB ¶ 4257, 108 LRP 26610 (2008) (motion to reinstate pay); 108 LRP 26608 (motion to reconsider); 08-2 ARB ¶ 4258, 108 LRP 35680 (motion for stay). These opinions may be accessed from http://www. scribd.com/collections/ 3252905/Alabama-Fair-Dismissal-and-Teacher-Tenure-Acts. Some other Bishop State cases are listed in Part VI, ¶¶ A-M of the ruling on the motion to reconsider.
employee and dependent tuition waiver. As for moral turpitude, the employee was told only: Your conduct described above which forms the basis of my intent to terminate your employment with Bishop State rises to the level of moral turpitude. Therefore, I intend to terminate your compensation from Bishop State. The hearing officer ruled that the notice was insufficient under the statute and that the employee’s compensation had been cut off improperly. The employee was offered the opportunity to continue her health insurance coverage, but after her compensation was cut off, she was unable to afford the $969 per month premium, $775 of which Bishop State previously had paid. As fate would have it, she was diabetic and had to be hospitalized, running up medical bills totaling almost $30,000. Fortunately for Bishop State, medical coverage was provided by the state through the Public Education Employees’ Health Insurance Plan, which agreed to reinstate the employee’s coverage retroactively. In general, an insurer is unlikely to be so magnanimous, so it is clear how a case that begins as an employee discipline matter easily can devolve into a financial disaster for an erring school employer. To understand how difficult it may be to determine whether particular misconduct involves moral turpitude and therefore how easily a school employer
can err, consider the case of Chapman v Gooden.8 Although Chapman is a voting rights case concerned with a “person convicted of a felony involving moral turpitude,” its discussion of “moral turpitude” may be the most extensive currently available from Alabama courts. Also instructive is the unpublished opinion of the trial judge in that case, which was reversed on other grounds.9 The trial judge was concerned that “moral turpitude” means too many different things to too many different people. In an email to the author, the judge wrote: I understand that you are confronting the “what is moral turpitude” dilemma. I am attaching a copy of an order I prepared in a voting right case here in Alabama where I attempted to address the matter. I basically concluded that I cannot reasonably give a definition to the term and that it was up to the legislature to do so. (Emphasis supplied). The lack of legislative guidance and definitional inconsistency that the trial judge observed in the voting rights context are sure to be seen in the context of teacher discipline as well. If an experienced, articulate judge has difficulty with the concept of “moral turpitude”, then so may school officials. Among the crimes classified in Alabama as involving moral turpitude are these:
974 So 2d 972 (Ala 2007). The Alabama Supreme Court’s slip opinion can be accessed from http://www.scribd. com/collections/3252905/Alabama-Fair-Dismissal-and-Teacher-Tenure-Acts. 9 The Hon. Robert S. Vance, Jr., Jefferson County Circuit Judge, graciously emailed a copy of his thoughtful opinion to the author, Gooden v Worley, No. CV-2005-5778-RSV (2006); the 50-page opinion can be accessed from http://www.scribd.com/collections/3252905/Alabama-Fair-Dismissal-and-Teacher-Tenure-Acts. Judge Vance deserves enormous credit for effecting a reform of Alabama’s voter registration procedures, and his thorough analysis of moral turpitude remains enlightening.
• The felonies of murder, rape, burglary, robbery, and income tax evasion • Forgery, conspiracy to commit fraud, aggravated assault, possession of marijuana for resale, sale of marijuana, manslaughter, theft, transporting stolen vehicles across state lines, unauthorized sale of a controlled substance, and bigamy • Conviction in state or federal court of felonies of impeachment, murder, rape in any degree, sodomy in any degree, sexual abuse in any degree, incest, sexual torture, enticing a child to enter a vehicle for immoral purposes, soliciting a child by computer, production of obscene matter involving a minor, production of obscene matter, parents or guardians permitting children to engage in obscene matter, possession of obscene matter, possession with intent to distribute child pornography, or treason Chapman, 974 So 2d @ 976-977. Among the crimes listed as not involving moral turpitude are these: • Assault and doing business without a license • Violation of liquor laws, aiding prisoner to escape, mere possession of marijuana, and driving under the influence Chapman, 974 So 2d @ 977. It is to be emphasized that, in general, crimes are not classified in criminal statutes as involving or not involving moral turpitude, and there is no comprehensive list of crimes that do involve it or crimes that don’t. The foregoing examples were gleaned by the courts from researching case law and state statutes. That is precisely the task that will face a school official who is considering suspending a teacher without pay for alleged moral turpitude. There are no clear guidelines. It is, therefore, imperative that a school official faced with such a
decision seek sound legal counsel. Suggestions For school districts and unions desiring to implement the Misconduct Procedure, the author offers some suggestions for reducing confusion over moral turpitude and for limiting consequences should a mistake be made. The Exceptions for Moral Turpitude May Not Be Worth the Risks If the Misconduct Procedure works as described (“The total time allotted from the filing of the Complaint until issuance of a written decision under the proposed schedule should be 100 calendar days.”)10, there is a very real question as to whether a school district and a teachers’ union should attempt to impose exceptions for moral turpitude. If the system works as planned, all that is risked by continuing to pay even a guilty teacher is 100 days’ pay plus benefits. And regardless of whether the accused turns out to be guilty of moral turpitude, the school district is likely to incur the expense of obtaining a legal opinion that the charge does involve it. In any case, a “teacher may be removed from the classroom at the discretion of the superintendent”,11 so students can be protected regardless of whether there are moral turpitude exceptions. If moral turpitude exceptions are in effect, the cost of a mistake could be huge, particularly if a teacher whose pay is summarily suspended cannot afford to
Id. @ 4, ¶ 2)f)i). Misconduct Procedure @ 5, ¶ 2)g)ii)(2).
continue medical insurance coverage. Although in the Bishop State example cited above, the uninsured employee’s medical expenses totaled “only” $30,000, there is no limit to the medical expenses that may be incurred in case of a catastrophic illness or injury.12 A possible compromise strategy might be for the school district to suspend the teacher’s regular salary but for the district to pay the entire cost of continuing the teacher’s medical insurance until the hearing examiner renders a decision. Cases in which a school district summarily suspends a teacher without pay for moral turpitude and the teacher has not been convicted of a crime involving moral turpitude by the time of the disciplinary hearing may prove particularly troublesome for at least two reasons. To justify the immediate suspension of pay, the school district undoubtedly will have the burden of proving that the teacher is guilty as charged,13 although the district may have little evidence of the crime itself.14 That could prove to be an insurmountable hurdle, as the teacher may refuse
Under Alabama law, a public education employer is responsible for benefits improperly terminated and is liable for medical expenses incurred as a result of the termination. Bishop State Community College v Archible, 33 So 3d 588, 591 (Ala Civ App 2009); citing Bishop State Community College v Douglas, 35 So 3d 617 (Ala Civ App 2009). 13 “The School District/Complainant must clearly establish proof of the allegations in the Complaint.” Misconduct Procedure @ 4, ¶ 2)e)i). “The opinion should have findings of fact as to each charge … .” Id. @ 6, ¶ 2)i)i); emphasis supplied. 14 Although the standard of proof in a criminal case is beyond a reasonable doubt and the standard set by the Misconduct Procedure is a preponderance of the evidence [Id. @ 4, ¶ 2)e)i)(2)], use of the latter standard to prove that a crime involving moral turpitude probably has been committed should be unobjectionable. The situation is similar to one in which a defendant is found not guilty of a crime but is sued successfully for damages in a civil action, based upon the same conduct. Perhaps the most famous of such cases is that of O.J. Simpson. Because of the expeditiousness of the misconduct proceedings and the sluggishness of criminal proceedings, the former probably will be completed first in most cases. This undoubtedly will lead to unusual situations in which a teacher charged with a crime involving moral turpitude is convicted in a misconduct proceeding but exonerated in a criminal one,
to discuss the alleged crime on the ground that anything she said could be used against her in the criminal case. Moreover, the accused may seek a stay of the disciplinary hearing until the criminal case is resolved, to protect her 5th Amendment right against self-incrimination.15 Under the Misconduct Procedure, a hearing examiner is not authorized to grant a stay,16 but a court surely could,17 and any stay could be extensive, as the criminal case slowly wends its way through the courts. It thus appears that there are many potential drawbacks and pitfalls to carving out exceptions for moral turpitude. Rigorously Define Moral Turpitude For those school districts and unions that decide to subscribe to exceptions for moral turpitude, an obvious way to reduce confusion and the chance for error is to rigorously define conduct which involves moral turpitude in the collective bargaining agreement. Simply put in the agreement an exclusive list of conduct involving moral turpitude, and define the geographical area in which the act must be committed for moral turpitude exceptions to apply. If experience dictates that the list needs to be expanded or contracted, then that can be done by mutual
and even situations in which a teacher is cleared in a misconduct proceeding (perhaps on procedural grounds or lack of evidence on the part of the school district) but later is convicted of the crime charged. 15 Bishop State Community College v Archible, 33 So 3d 577, 580 (Ala Civ App 2008), rev’d, Bishop State Community College v Soleyn, 33 So 3d 584 (Ala 2009); [MP] v Bishop State Community College, 08-2 ARB ¶ 4258, 108 LRP 35680 (2008). 16 “The Hearing Examiner would not be able to extend the deadlines set forth below.” Misconduct Procedure @ 4, ¶ 2)f)i). 17 Ex parte Rawls, 953 So 2d 374 (Ala 2006); Ex parte Antonucci, 917 So 2d 825 (Ala 2005); Ex parte Ebbers, 871 So 2d 776 (Ala 2003).
agreement. The list, of course, must comport with state and federal law. However, it need not include every crime under state or federal law, which involves moral turpitude. For example, the parties may feel that income tax evasion is not so reprehensible a crime as to disqualify a person from teaching.18 In any event, an exclusive list surely is the easier and safer approach for those school districts and unions retaining exceptions. Limit Compensatory Damages In a case in which charges against a teacher are dismissed, the Misconduct Procedure places no limit on the amount of compensatory damages the teacher can recover.19 It calls for reimbursement of “back pay”, a term which undoubtedly will be broadly construed to include lost fringe benefits such as pension credits. Regardless of whether that term is interpreted to include out-of-pocket medical expenses incurred as a result of the loss of medical insurance, those expenses certainly qualify as “economic damages” under ¶ 2)i)iii) @ 6. The really difficult question is whether “economic damages” includes damage to reputation, which can occur when someone is falsely accused of a crime
The parties to a collective bargaining agreement need to examine very carefully precisely what is classified as moral turpitude in their state and decide if they really want to punish teachers civilly for what is relatively common conduct. Consider that under Alabama Criminal Code § 13A-6-65(a)(3), oral sex between unmarried persons is a misdemeanor involving moral turpitude, to which consent is no defense. See Chapman, 974 So 2d @ 977 (“sodomy in any degree”); note also the several obscenity crimes listed there. Query whether school districts and teachers’ unions should become morals police. 19 Id. @ 6, ¶ 2)i)iii).
involving moral turpitude. Rather than waiting for experience and case law to answer the question, it might be preferable to expressly limit “economic damages” to out-of-pocket expenses incurred as a result of the charges. Otherwise, a school district may be faced with complex damage claims that prove difficult to defend. Don’t Overlook Loudermill The Misconduct Procedures must be interpreted and applied in light of the due process requirements laid down by the Supreme Court in Cleveland Board of Education v Loudermill.20 The implications of Loudermill are discussed at length in The Notice Provisions of the Alabama Fair Dismissal and Teacher Tenure Acts and will not be repeated here.21 Although that article had its genesis in Alabama law, the federal constitutional considerations apply nationwide. In essence, Loudermill requires that a non-probationary teacher be afforded the rights to notice and an informal hearing before pay is cut off. To avoid conflict with Loudermill, it might be prudent to delay the “immediate” suspension of pay called for by the Misconduct Procedure22 until completion of the screening and informal resolution processes.23 By that time, the accused teacher and the union should have been fully informed of the allegations and supporting facts and have had the opportunity to counter them sufficiently to
20 21 22 23
470 US 532 (1985). Supra, n 6. Procedure @ 5, ¶ 2)g)ii)(1). Id. @ 3, ¶ 2)b)i)(1) & (2).
satisfy Loudermill’s requirement of a pre-termination hearing. If the Procedure works as planned, the delay will last at most 20 days,24 a small price to pay toward compliance with federal constitutional law.
Id. @ 4, ¶ 2)f)i)(6).