Petition for Writ of Certiorari — Hubbard v. Kentucky Education Professional Standards Board

Supreme Court, U.8.

(\) FILED

961504 yar 21 1997

No. .

SY Aaa

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

CAROL B. HUBBARD - - - - - _ Petitioner

versus

KENTUCKY EDUCATION PROFESSIONAL

STANDARDS BOARD - - - - Respondent

On Petition for a Writ of Certiorari to the

Court of Appeals of Kentucky

PETITION FOR WRIT OF CERTIORARI

KYLE T. HUBBARD

Counsel of Record

2100 National City Tower

101 South Fifth Street

Louisville, Kentucky 40202

(502) 582-1891

Counsel for Petitioner

March 22, 1997

WESTERFIELD-BONTE CO., 619 W. KENTUCKY-P.O. BOX 3251, LOUISVILLE, KY.

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QUESTION PRESENTED FOR REVIEW

Whether the Kentucky Education Professional Stan-

dards Board may not, consistent with due process, revoke

a school teacher’s teaching certificate, thereby extinguish-

ing her professional teaching career and livelihood, with-

out presenting any evidence whatsoever that the teacher's

“off-duty” conduct impaired her ability to function as a

teacher, and where the only evidence presented as to fit-

ness supported her fitness to teach.

ii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .........

AR GP Ce Se scictinctncinsscctavensigomsiastoenebeme

CONSTITUTIONAL PROVISIONS AND

STATUE es ECVV EID vsecacivcscrssssscceasusscssaenees

REASON FOR GRANTING THE WRIT

The Kentucky Education Professional Standards

Board may not, consistent with due process,

revoke a school teacher’s teaching certificate,

thereby extinguishing her professional teaching

career and livelihood, without presenting any

evidence whatsoever that the teacher’s “off-duty

conduct impaired her ability to function as a

teacher, and where the only evidence presented

as to fitness supported her fitness to teach. ......

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APPENDIX

Court of Appeals of Kentucky Opinion, Septem-

SE TI, BOD nsiricinsncnssdioneninle Dliideneddiguesbuitidadapaidaaaaeines

Supreme Court of Kentucky Order Denying

Discretionary Review, January 22, 1997.......

Franklin Circuit Court Judgment, July 25, 1995

Kentucky Education Professional Standards

Board Final Order, March 21, 1995...............

Court of Appeals of Kentucky Order Denying

Petition for Rehearing, November 15, 1996 ..

Stipulation by Petitioner and Board, December

Fahy TAOS <intoccteuinnieeativiniaielpaauaianrainine

Transcript of Hearing Excerpt, pp. 4-9,

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TABLE OF AUTHORITIES

PAGE

Constitutional Provisions:

Fourteenth Amendment, United States

RN i 2

Statute:

Kentucky Revised Statute 161.120(1\a)............. 2,2

Cases:

Alford v. Ingram, 931 F.Supp. 768 (M.D. Ala.

NRA REI AR oS He oP ea 7

Board of Fducation v. Wood, Ky., 717 S.W.2d 837

2 RPDSRI TARR Rv eEN a ERO oO AO aT 4,5

Burton v. Cascade School District, 353 F.Supp.

254 (D.Ore. 1973), affirmed 512 F.2d 850

(9th Cir. 1975), cert. denied 423 U.S. 839 ..... 6

Golden v. Board of Education, W.Va., 285 S.E.2d

i 9-10

Gloster v. General Services Administration, 720

ee PURE Catal s Maile: BID cis ncarnccctaceacth canconsnes 8,9

Hoagland v. Mount Vernon School District,

Waah., 623 P.24 1166 (19681) .......ccsccocscecscscees 7,8

Kolender v. Lawson, 461 U.S. 356 (19838)............ 7

Norton v. Macy, 417 F.2d 1161 (D.C. Cir. 1969). 6, 8-9

Perkins v. Stewart, Ky.App., 799 S.W.2d 48

ERATED scien borehpniotcosrincebsmeidesiesmmuisdaniinnadincredasteiderses 4-5

Phillips v. Bergland, 586 F.2d 1007 (4th Cir.

PTE sachs siciiscaaticdecchphdiinvnseinensebapbisAesetiibiancteanics 8

Thompson v. Southwest School District, 483

F.Supp. 1170 (W.D. Mo. 1980) ............ccccceeeees 7,9

aera, eats aah tena

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

CAROLB.HUBBARD - - - - - - . Petitioner

versus

KENTUCKY EDUCATION PROFESSIONAL

STANDARDSBOARD - - - - - Respondent

On Petition for a Writ of Certiorari to the

Court of Appeals of Kentucky

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Court of Appeals of Kentucky, ren-

dered September 20, 1996, is not published. This opinion

is set forth in this Appendix at la.

The judgment of the Franklin Circuit Court, entered

on July 25, 1995, is set forth in this Appendix at 11a.

The final order of the Kentucky Education Professional

Standards Board, entered on March 21, 1995, is set forth

in this Appendix at 15a.

2

JURISDICTION OF THIS COURT

The opinion of the Court of Appeals of Kentucky was

rendered on September 20, 1996. [la] A timely petition for

rehearing was denied by order entered on November 15,

1996. [16a] A timely motion for discretionary review by the

Supreme Court of Kentucky was denied on January 22,

1997. [10a] This Court has jurisdiction to review the judg-

ment of the Court of Appeals of Kentucky pursuant to 28

U.S.C. Section 1257(a).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Fourteenth Amendment to the United States Constitu-

tion

No State shall . . . deprive any person of life, liberty,

or property, without due process of law.

Kentucky Revised Statute 161.120(1)(a)

Any certificate issued under KRS 161.010 to 161.100

. may be revoked by the Education Professional

Standards Board for . . . immorality... .

STATEMENT OF THE CASE

Petitioner Carol B. Hubbard has held a Kentucky teach-

ing certificate from 1966 to the present. She has served as

a teacher in Kentucky schools from 1966 to the present,

with the exception of a period of time when she resided in

Washington, D.C., from 1984 until 1993. In 1992, she

unsuccessfully ran for Congress in Kentucky’s Fifth Con-

gressional District. In 1993, she returned to her teaching

career in Kentucky.

In 1994, she was accused of a federal misdemeanor,

aiding and abetting in the wrongful use of federal employ-

ees, in connection with her unsuccessful 1992 campaign

for Congress, and on March 28, 1994, she settled the mis-

demeanor charge by plea bargain. The Honorable Louis F.

Oberdorfer, United States District Judge, observed:

3

I am satisfied that you’re a victim and not a perpetra-

tor and I'm satisfied that you’re thoroughly remorse-

ful. [Stipulation by Petitioner and the Board, 17a]

Her contract to teach school was subsequently renewed for

school years 1994-1996.

Nevertheless, on October 24, 1994, the Kentucky Edu-

cation Professional Standards Board (“Board”) issued a

statement of charges accusing petitioner of: 1) willful and

knowing violation of school laws and regulations; 2) immo-

rality; and 3) misconduct in office. The first and third

charges were subsequently dismissed.

Only the “immorality” charge remained, based on Ken-

tucky Revised Statute 161.120(1)(a):

Any certificate issued under KRS 161.010 to 161.100

. may be revoked by the Education Professional

Standards Board for... immorality... .

The December 13, 1994 hearing on this charge was brief.

The evidence, or lack thereof, was as follows. The Board

filed, without comment, documents relating to petitioner’s

plea agreement on the federal misdemeanor.

Board’s Counsel: [Mly first witness and only witness

is Terri Eversole. . . . And, just briefly, go through

each one, and tell... what the document is.

Ms. Eversole: Okay. Exhibit 6 is the charges against

Ms. Hubbard. Exhibit 7 is the guilty plea to the

charges. Exhibit 8 is the transcript of the guilty plea.

Exhibit 9 is the government sentencing memorandum.

Exhibit 11 is the government’s response to Ms.

Hubbard’s sentencing memorandum. Exhibit 12 is

Ms. Hubbard’s response to the government’s sentenc-

ing memorandum.

Board’s Counsel: [T]hat is basically the case — the

factual case of the Board. [Transcript of Hearing, De-

cember 13, 1994, pp. 4-9, 19a-22a]

4 j

The Board presented no evidence whatsoever to demon-

strate that petitioner’s misdemeanor conduct, which oc-

curred in a context other than her teaching profession, had

any nexus to her teaching performance.

REASON FOR GRANTING THE WRIT

THE KENTUCKY EDUCATION PROFESSIONAL

STANDARDS BOARD MAY NOT, CONSISTENT WITH

DUE PROCESS, REVOKE A SCHOOL TEACHER’S

TEACHING CERTIFICATE, THEREBY EXTINGUISHING

HER PROFESSIONAL TEACHING CAREER AND LIVE-

LIHOOD, WITHOUT PRESENTING ANY EVIDENCE

WHATSOEVER THAT THE TEACHER'S “OFF-DUTY”

CONDUCT IMPAIRED HER ABILITY TO FUNCTION AS

A TEACHER, AND WHERE THE ONLY EVIDENCE PRE-

SENTED AS TO FITNESS SUPPORTED HER FITNESS

TO TEACH.

In the education employment context, the Kentucky

Court has stated the due process parameters for revoca-

tion based on conduct which occurs in a context separate

from competency in the classroom.

It was not the intention of the legislature to subject

every teacher to discipline or dismissal for private

shortcomings that might have come to the attention of

the Board of Education but have no relation to the

teacher’s involvement or example to the school com-

munity. The power of the Board to discipline teachers

is not based on personal moral judgments by Board

members. It exists only because of the legitimate in-

terests of the government in protecting the school com-

munity and the students from harm. Board of Educa-

tion v. Wood, Ky., 717 S.W.2d 837, 840 (1986).

Even more directly, the Kentucky Court has held,

We agree with both Perkins and the board that the

status of being a felon alone does not automatically

allow a state agency to deprive one of his livelihood.

aia

5

Perkins v. Stewart, Ky.App., 799 S.W.2d 48, 51 (1990).

Just as a felon cannot be deprived of his livelihood based

on his status as a felon, so petitioner should not be de-

prived of her livelihood based on her status as a

misdemeanant. Due process in Kentucky requires sub-

stantial evidence of a nexus between the conduct and pro-

fessional competency in the classroom.

[T]he conduct, when it occurs in a context other than

professional competency in the classroom should have

some nexus to the teacher’s occupation. Board of Edu-

cation v. Wood, supra, 717 S.W.2d at 840.

* * *

Perkins did not contest the cabinet’s assertion that he

had been convicted. He appealed on the basis that

the convictions were not “work related.” That issue

is, in our opinion, the pivotal issue that should have

been the focus of the hearing. Perkins, supra, 799

S.W.2d at 51.

In the present case, as in Perkins, due process required

that the pivotal issue at the Board’s hearing should have

been whether petitioner's misdemeanor conviction was or

was not work-related. Nevertheless, the Board introduced

no evidence whatsoever on that pivotal issue. Further, the

Kentucky Courts ignored the holdings of the cases set forth

above, which reflect the established state of the law na-

tionwide, to deny due process of law. This is the injustice

which this Court is asked to correct by granting certiorari.

At the hearing, the Board and petitioner stipulated that

petitioner’s teaching record was excellent.

Carol Brown Hubbard has properly and capably per-

formed and fulfilled her duties as a teacher through-

out her career at the following schools [six schools

listed, for the years 1966 through 1995]. [Stipulation,

17a]

6

- a

The Board and petitioner stipulated the remarks of the |

misdemeanor sentencing judge, United States District

Judge Oberdorfer, made at sentencing on June 30, 1994.

JUDGE OBERDORFER: [Y]lou obviously led a pro-

ductive and a very useful life as a teacher and I hope

that despite your present difficulties you can resume

and the authorities in Kentucky will permit you to

resume your teaching career, wiser for this experi-

ence. . . . [H]aving said all that I wish for you an

opportunity to return to your career as a teacher and

hopefully spend an useful life. [Stipulation, 17a-18a]

The Board further stipulated the admission of letters from

two school principals instead of requiring their appear-

ances. They affirmed petitioner’s exemplary performance

as a teacher and her fitness to teach notwithstanding the

misdemeanor plea.

Federal and state cases establish principles of due pro-

cess dispositive of the present issue.

“Immorality” or “immoral conduct” in an off-duty con-

text, without more, is insufficient to justify professional

discipline.

Preliminarily, we must reject appellee’s contention that

once the label “immoral” is plausibly attached to an

employee's off-duty conduct, our inquiry into the pres-

ence of adequate rational cause for removal is at an

end. Norton v. Macy, 417 F.2d 1161, 1165 (D.C. Cir.

1969).

A statute that purported to dismiss teachers based on “Im-

morality” was held “unconstitutionally vague.” Burton v.

Cascade School District, 353 F.Supp. 254, 255 (D. Ore.

1973), affirmed 512 F.2d 850 (9th Cir. 1975), cert. denied

423 U.S. 839.

However, even an unconstitutional statute can become

constitutional with a limiting construction.

Te

7

Under well-settled law, a statute may not be declared

unconstitutionally vague if it is subject to a narrowing

construction which will cure its constitutional ill. See

Erznoznik v. City of Jacksonville, 422 U.S. 205, 95

S.Ct. 2268, 45 L.Ed.2d 125 (1975); International Ass’n

of Machinists v. Street, 367 U.S. 740, 749-50, 81 S.Ct.

1784, 1789-90, 6 L.Ed.2d 1141 (1961). Alford v. Ingram,

931 F.Supp. 768, 771 (M.D. Ala. 1996).

See, Kolender v. Lawson, 461 U.S. 356, 356 (1983).

The limiting construction which saves a vague “immo-

rality” or “immoral conduct” disciplinary statute is the con-

struction which limits “immorality” to mean “rendering a

teacher unfit to teach.”

[S]imilar statutes are facially constitutional with a

limiting construction. In all of these cases, the courts

have interpreted the words in the statutes to imply an

unfitness to teach. [Citation omitted.] [D]irect connec-

tion needed between misconduct and teacher’s work.

[Citation omitted.] “[[mmoral conduct” limited to mean

“rendering a teacher unfit to teach” to avoid vague-

ness. Alford v. Ingram, supra, 931 F.Supp. at 773.

* * *

[T]he Court believes that the term “immoral conduct”

was intended in this context to relate to conduct which

would render a teacher unfit for the performance of

his duties. Thompson v. Southwest School District, 483

F.Supp. 1170, 1180 (W.D. Mo. 1980).

* - *

In most cases, because the statutes do not stipulate

certain conduct as per se grounds for dismissal, it will

be a question of fact whether the complained of acts

constitute sufficient cause. ... Sufficient cause,

though not statutorily defined, has been interpreted

to mean a showing of conduct which materially and

substantially affects the teacher’s performance.

Hoagland v. Mount Vernon School District, Wash., 623

P.2d 1156, 1159 (1981).

8

Even criminal conduct which is “off-duty” must be shown

by substantial evidence to adversely affect the teacher’s

professional competency in the classroom.

The federal government and society in general cer-

tainly do not condone welfare fraud, but punishment |

for such offenses is entrusted by the Act to the crimi-

nal process so long as the offense has no work-related

effects. ... The nexus requirement is particularly

strict in cases involving non-work-related misconduct.

Gloster v. General Services Administration, 720 F.2d

700, 704, 703 (D.C. Cir. 1983).

* * =

Without an actual showing of impairment to teaching,

simply labelling an instructor as a convicted felon will

not justify a discharge. ... [I]t would violate due

process to discharge a teacher without showing actual

impairment to performance. Hoagland, supra, 623 P.2d

at 1159.

* * *

Accordingly the mere fact that the employee has com-

mitted an immoral or disgraceful act — even a crimi-

nal act — will not justify a discharge unless it can be

said that there is what the courts have described as a

“vital nexus” between the act and the “efficiency of

the service.” Phillips v. Bergland, 586 F.2d 1007, 1011

(4th Cir. 1978).

Case after case requires substantial evidence of this “vital

nexus” between off-duty misconduct and the work duties of

the employee to be disciplined. Where substantial evi-

dence of this “vital nexus” is lacking, the employee will not

be deprived of her livelihood.

The peculiar feature of appellant’s dismissal, however,

is that it rests on none of these possible effects on the

service. The NASA official who fired him, Mr.

Gabarini, testified that appellant was a “competent

employee” doing “very good” work. ... [A]ppellant’s

:

'

9

discharge cannot be sustained. Norton v. May, 417

F.2d 1161, 1166, 1168 (D.C. Cir. 1969).

* * *

Evaluation of the evidence presented in this case and

to the board of education at the hearing on December

21, 1979, convinces the Court that no evidence has yet

been developed indicating that plaintiff's conduct has

rendered her unfit to teach. ... [D]Jefendants are

hereby restrained from suspending plaintiff. Thomp-

son v. Southwest School District, 483 F.Supp. 1170,

1182, 1185 (W.D. Mo. 1980).

= * *

In the present case whatever force the MSPB’s pre-

sumption commanded was dispelled by Gloster’s con-

tention, and the GSA’s confirmation, that her convic-

tion bore no relation to her job performance, and was

not so notorious so as to discredit the agency or other-

wise affect the performance of others. ... [W]e re-

verse the decision of the Board and remand the case

with directions to order reinstatement and back pay.

Gloster, supra, 720 F.2d at 704, 705.

In a case on “all fours,” Golden v. Board of Education,

W.Va., 285 S.E.2d 665 (1982), a statute authorized teacher

discipline for undefined “immorality.” The Court stated

the well-established rule of construction requiring nexus.

When confronted with this problem courts seek to de-

termine if a “rational nexus” exists between the con-

duct complained of and the duties to be performed.

Golden, supra, 285 S.E.2d at 668.

In Golden, the “off-duty” conduct was shoplifting. The

only evidence submitted to the Board to support the charge

of “immorality” consisted of the arrest and plea records, as

in the present case.

In the case now before this Court, the only evidence

submitted to the Board to support the charge of im-

morality were the records of the magistrate indicating

10

the arrest on the aforestated charge and Mrs. Golden’s

plea of nolo contendere thereto. The Board appar-

ently adopted the view that conviction on the misde-

meanor charge was per se immoral conduct within the

meaning of the statute. Golden, supra, 285 S.E.2d at

669.

In Golden, as in the present case, the only evidence in the

record relating to the teacher's fitness to teach was favor-

able to the teacher. t

The only evidence in the record before the Board re-

lating to fitness to teach was the favorable testimony

of Mrs. Golden’s fellow teachers and of the principal

and assistant principal at her high school. Golden,

supra, 285 S.E.2d at 669.

In Golden, the court reversed and remanded “with instruc-

tions to direct the board of education to reinstate Arlene

Golden.” Id., p. 669. The court held that the required

nexus had not been shown:

From this evidence, the Court concludes that the Board

was presented with no evidence from which it could

conclude that the petitioner was unfit to teach. In-

deed, the evidence indicates that it should have con-

cluded the opposite. Golden, supra, 285 S.E.2d at 669.

The court stated the due process reason for requiring the

nexus to be shown:

One reason for requiring a showing that the alleged

immoral conduct has a resulting impact upon the

teacher’s fitness to teach or upon the school commu- |

nity is that to examine only the conduct itself would

result in a statute that would be void for vagueness

under substantive due process constitutional stan-

dards. Golden, supra, 282 S.E.2d at 669.

In the present case, as in Golden, the required nexus be-

tween the “off-duty” misconduct and the teacher’s fitness

to teach was never shown. In fact, all the evidence pre-

sented favorably demonstrated her fitness to teach.

11

All of the above cases demonstrate the well-established

due process requirements of nexus and substantial evi-

dence to prove nexus between off-duty conduct (including

criminal conduct) and job performance, before a person’s

career and livelihood can be taken away.

Nevertheless, in the present case, neither the Board

nor the Kentucky Courts followed these well-established

due process requirements, to effect the revocation of

petitioner’s teaching certificate.

CONCLUSION

For the reasons set forth above, it is respectfully sub-

mitted that the petition for a writ of certiorari should be

granted.

Respectfully submitted,

halla

Ky.e/T. HUBBARD

2100 National City Tower

101 South Fifth Street

Louisville, Kentucky 40202

(502) 582-1891

Counsel for Petitioner

Carol B. Hubbard

Member of the Bar of the

United States Supreme Court