Monday, January 22, 2018

Privilege Resolved On Question- By-Question Basis

The Rhode Island Supreme Court remanded a matter  involving attorney-client privilege

Viner was a North Kingstown High School chemistry teacher. It is undisputed that, during the summer following the 2014-2015 school year, one of Viner’s female students complained to her mother, who informed the school administration, about alleged inappropriate behavior by Viner. In an affidavit submitted to the Superior Court, Attorney Mary Ann Carroll, as legal counsel to the school committee, explained, that upon learning of the allegations, her law firm launched an investigation. She further explained that Attorney Aubrey Lombardo assisted in the investigation by interviewing five high school students and preparing a report based on those interviews, which was submitted to the superintendent of the North Kingstown School Department and the principal of North Kingstown High School.

After a pre-suspension hearing

In response, Viner requested a full evidentiary hearing before the school committee, which took place on December 7, 2015. At the conclusion of the full evidentiary hearing, the school committee again voted to suspend Viner without pay for the remainder of the school year and then terminate his employment at the close of the year. In turn, Viner appealed the school committee’s decision to the commissioner of elementary and secondary education within the Rhode Island Department of Elementary and Secondary Education (RIDE). At Viner’s request, the RIDE hearing officer issued three subpoenas pursuant to G.L. 1956 § 16-39-8: witness subpoenas addressed to Attorneys Carroll and Lombardo and a subpoena duces tecum to the North Kingstown School Department.

On appeal

Based on the foregoing, therefore, we remand this case to the Superior Court to follow the procedure described above. At the discretion of the hearing justice, the two attorneys may either be deposed or testify at a hearing. The hearing justice may then make an attorney-client privilege determination on a question-by-question basis, bearing in mind that the burden of persuasion rests upon the party seeking to assert the privilege. See State v. von Bulow, 475 A.2d 995, 1005 (R.I. 1984). We expect that the council on elementary and secondary education will refrain from proceeding further on this matter until the issue is resolved by the hearing justice.  Following the hearing justice’s privilege determination, any party in interest may request the RIDE hearing officer to reopen the evidence to receive any testimony from the attorneys that has been deemed to be nonprivileged by the hearing justice. In the event that the administrative proceedings result in a final judgment under the APA, an aggrieved party may claim the hearing justice’s decision on the attorney-client privilege as error in a petition for a writ of certiorari under G.L. 1956 § 42-35-16.

A dissent would find the issue non-ripe.

I must respectfully dissent from the majority’s opinion because I believe that the issue before the Court is not ripe due to the fact that an appeal to the Council on Elementary and Secondary Education remains pending; and, if James Viner prevails in that appeal, it would render the instant case entirely moot. Indeed, the majority itself concedes that “the school committee’s petition to quash may not have been ripe for review” and that review of such interlocutory rulings of administrative agencies should be “sparingly exercise[d] * * *.” (Internal quotation marks omitted.) It is my definite belief that, in the instant case, this Court should follow “our usual policy of not opining with respect to issues about which we need not opine * * *.” Grady v. Narragansett Electric Co., 962 A.2d 34, 42 n.4 (R.I. 2009)

The decision of the Commissioner of Education is linked here. 

It may well be that, as the Principal told the School Committee, she and her “new administrative staff” had “erred on the side of caution” and “asked the attorneys to come in and make sure we were doing something that was totally hands off so it could be a very fair investigation.” See ¶ 30, supra. Yet, the evidentiary record indicates that this “totally hands off” approach was taken to an inappropriate extreme. Indeed, it appears from the record that everybody in charge – the private attorneys that were hired, the Principal and the Superintendent– just assumed that the various sometimes contradictory allegations made by the five students whose interviews were contained in the Viner Report were accurate, and failed to draw their own conclusions based upon competent evidence. Indeed, as noted, the author of the Report did not herself come to any of her own conclusions as to the credibility of those students who were interviewed, and did not even speak with many of the students who testified before the undersigned, or even to Mr. Viner.

Thus, as noted, the School Committee based its decision to suspend and dismiss a teacher who served without incident for twenty-two years without prior warning or gradual discipline based largely, if not entirely, upon the bare, contradictory allegations of five students, without the benefit of any meaningful evaluation as to their credibility or follow-up by the adults charged with doing so. By contrast, the undersigned did not find the students making the material allegations against Mr. Viner, i.e., R.J. and H.D., any more or less credible than the far greater number of students who testified that Mr. Viner was an “excellent teacher” who never used “vulgar language,” “sexual comments” or “sexual innuendo” in front of them. See ¶¶ 48-49 and notes 20-21, supra.

In addition, contrary to the School Committee’s inference that Mr. Viner’s decision not to testify at its December 7, 2015 evidentiary hearing should be held against him, see School Committee’s Supp. Mem. at 3-4, the decision, rather than evidencing any consciousness of guilt, was more likely a tactical response to the School Committee’s failure to more specifically identify the charges and evidence against him. And little time need be spent addressing the allegation in the Statement of Cause that Mr. Viner “encourage[d] students to cheat on exams,” see Petitioner’s Ex. 1 at 3, as: (a) Mr. Viner’s testimony flatly denying the allegation, see ¶ 52(b), supra, was not rebutted; and (b) the Principal made clear that there was “no link” between the alleged cheating on exams and the alleged sexual harassment. See June 10 Tr. at 119

The order suspending and terminating the teacher is attached at the beginning of the link. (Mike Frisch)

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