James Viner v. Council on Elementary and Secondary Education, et al.

STATE OF RHODE ISLAND
PROVIDENCE, SC. SUPERIOR COURT
(FILED: April 5, 2024)
JAMES VINER :
:
Appellant, :
v. : C.A. No. PC-2021-02565
:
COUNCIL ON ELEMENTARY AND :
SECONDARY EDUCATION AND :
THE NORTH KINGSTOWN SCHOOL :
COMMITTEE, by and through its :
members, GREGORY BLASBALG, :
LISA HILDEBRAND, JENNIFER :
HOSKINS, JENNIFER LIMA, :
JAKE MATHER, AND :
SALLY SCHOTT, :
:
Appellees. :
DECISION
NUGENT, J. Before this Court is Appellant James Viner’s appeal of the decision of the
Rhode Island Council on Elementary and Secondary Education (Council) to uphold his
termination. The Court’s jurisdiction over this matter is pursuant to G.L. 1956 § 42-35-
15.
I
Facts and Travel
In 2015, Appellant worked as a chemistry teacher at North Kingstown High
School. See Appellant’s Mem. in Supp. of Appeal Ex. B at 1 (Viner Report); Appellant’s
Mem. in Supp. of Appeal Ex. A (Commissioner of Education, Decision (Dec. 2016
Decision) at 2); Hr’g Tr. 116:5-9, Aug. 11, 2016 (Tr. Vol. IV, afternoon session). On July

2
6, 2015, one of Jane Doe’s1 (Doe) parents sent an e-mail to Assistant Principal Barbara
Morse that stated her daughter became agitated when she learned she failed chemistry.
(Viner Report at 8-9; Dec. 2016 Decision at 3.) Doe alleged that Appellant “repeatedly
made inappropriate comments about other female students in front of [Doe].” (Viner
Report at 9.) On May 5, 2015, Doe said she had a panic attack and walked up to
Appellant’s desk to request to go to the nurse’s office. Id. At this time, Appellant said
“[h]ey, [Doe], lean close, I want to whisper something in your ear[;]” she alleges that she
leaned in and he “kissed her on the cheek.” Id.
District Superintendent Philip Auger (Superintendent Auger) referred the matter
to the School District’s attorney, Mary Ann Carroll (Attorney Carroll). (Dec. 2016
Decision at 4.) Attorney Carroll referred the matter to Aubrey Lombardo (Attorney
Lombardo) to conduct the investigation. Id.; Hr’g Tr. 120:13-121:4, May 25, 2016 (Tr.
Vol. II). As part of the investigation, Attorney Lombardo interviewed Doe, Selena Jones
(Jones), Amy Anderson, Kelly Rodriguez (Rodriguez), and Karen White. See Viner
Report. Attorney Lombardo prepared a report that solely summarized said interviews
(Viner Report). See Viner Report; Dec. 2016 Decision at 4-5.
On July 22, 2015, Attorney Carroll informed Appellant—via his union
representative Mary Barten of the National Education Association of Rhode Island
(union)—that a student alleged he had kissed her on the ear and an investigation was
underway. (Dec. 2016 Decision at 5.) On August 7, 2015, Appellant’s union
representative told him that a meeting with Superintendent Auger was forthcoming. Id.;
Tr. Vol. IV, afternoon session, 118:15-119:3. Superintendent Auger sent Appellant a
1 Pseudonyms will be used throughout the Decision to maintain the confidentiality of the
high school students.

3
letter dated August 24, 2015 formally informing him of the complaint and that a pre-
deprivation hearing would occur that morning at 10:00 a.m. (Appellant’s Mem. in Supp.
of Appeal Ex. C.)
Appellant attended the pre-deprivation hearing in Superintendent Auger’s office
with his union representative and answered Attorney Carroll’s questions. (Dec. 2016
Decision at 5-6.) North Kingstown High School’s Principal Denise Mancieri (Principal
Mancieri) also attended. Id. at 6. Later that day, Superintendent Auger sent another letter
to Appellant stating that he would provide his recommendation based on the pre-
deprivation hearing to the North Kingstown School Committee (School Committee) on
August 25, 2015 at 6:00 p.m. (Appellant’s Mem. in Supp. of Appeal Ex. D.)
Superintendent Auger further said, “[b]ased on my review of the investigation and the
pre-deprivation hearing in my office, I will recommend to the School Committee that you
be suspended without pay for the 2015-2016 school year and terminated at the conclusion
of the 2015-2016 school year.” Id. Prior to the meeting before the School Committee,
Appellant did not receive a copy of the Viner Report. (Dec. 2016 Decision at 6.)
The School Committee drafted a Statement of Cause—pursuant to the Teachers’
Tenure Act, G.L. 1956 § 16-13-4(a)—that outlined the allegations from Doe and the
other students in the Viner Report. (Appellant’s Mem. in Supp. of Appeal Ex. F at 2-3
(Statement of Cause).) The Statement of Cause said that, during Appellant’s pre-
deprivation hearing, Appellant admitted to calling a female student a “ten out of ten,”
telling another female student she had a “complete body,” often calling female students
“baby” or something similar, referring to another student as “Daisy” as in the character
“Daisy Duke,” and making other sexual innuendos. (Statement of Cause at 2-3.) In

4
reference to Doe, the Statement of Cause says that Appellant “essentially corroborated
[her] report, differing only in stating that [Appellant] merely ‘blew a kiss by her ear’ but
[Appellant] denied actually kissing her.” Id. at 2. Ultimately, the School Committee voted
4-0 to suspend Appellant for the remainder of the school year and subsequently terminate
his employment for “good and just cause.” Id. at 3.
Appellant appealed the School Committee’s decision to obtain a full evidentiary
hearing, pursuant to the Teachers’ Tenure Act, § 16-13-4(a), and Appellant’s attorney
requested copies of written or recorded statements and relevant documents relating to the
investigation. (Dec. 2016 Decision at 8.) Appellant’s attorney also requested the
documents Superintendent Auger relied on in drafting his recommendation to the School
Committee. Id. On September 28, 2015, the School Committee denied Appellant’s
request on the grounds that it invaded attorney-client privilege and attorney work product
privilege, was overbroad, and sought “information and documentation that, if provided,
would unlawfully violate the privacy rights of third parties[.]” Id.
A
Department of Labor and Training Board Hearing
On September 4, 2015, Appellant applied for unemployment benefits which were
denied because the School Committee had discharged Appellant for “misconduct.” (R.
Viner v. Department of Labor & Training, Board of Review, 2016-85, August 22, 2019,
at 3 (Goldman, J.).) Appellant timely appealed that decision to the Board of Review
which affirmed the decision. Id. Appellant timely appealed the Board of Review’s
decision which was affirmed by the Referee. Id. at 3-4. Appellant timely appealed that

5
decision to the District Court, and the trial justice affirmed the decision that Appellant
was ineligible for unemployment benefits. Id. at 3.
B
School Committee Hearing
On December 7, 2015, at the School Committee’s evidentiary hearing, five
witnesses testified: Doe, Jones, Kelly Rodriguez, Principal Mancieri, and Superintendent
Auger. See generally Hr’g Tr. North Kingstown School Committee, Dec. 7, 2015;
Appellant’s Mem. in Supp. of Appeal Ex. G. Ultimately, the School Committee voted 4-1
to accept Superintendent Auger’s recommendation to suspend Appellant for the
remainder of the school year and terminate him thereafter. (Dec. 2016 Decision at 12.)
C
Rhode Island Department of Education Appeal
On December 18, 2015, Appellant timely appealed the decision of the School
Committee. (R. Appellant’s Appeal of School Committee Decision at 1.) A Hearing
Officer from the Department of Education conducted a multi-day hearing in which a
myriad of witnesses testified: Jane Doe, Selena Jones, John Smith, Abby Shapiro, Camila
Fernandez, Amy Anderson, Jamie Sanders, Gemma Wong, Jordan Parker, Barbara
Morse, Principal Mancieri, Appellant, and Superintendent Auger. See Tr. Vol. IV,
afternoon session; see also Hr’g Tr., Aug. 11, 2016 (Tr. Vol. IV, morning session); see
also Tr. Vol. II, May 25, 2016; see also Hr’g Tr., May 10, 2016, (Tr. Vol. I); see also
Hr’g Tr., June 10, 2016, (Tr. Vol. III).

6
Subsequently, the Hearing Officer issued a decision. (Dec. 2016 Decision.) The
Hearing Officer’s decision summarized the facts and travel of the case before addressing
the two main legal arguments as discussed infra. See generally id.
1
Whether the School Committee Afforded Appellant Procedural Due Process
The Rhode Island Department of Education (RIDE) Hearing Officer’s decision
outlined notice requirements for teachers under the Teachers’ Tenure Act,
“[t]he statement of cause for dismissal shall be given to the
teacher, in writing, by the governing body of the schools.
The teacher may, within fifteen (15) days of the
notification, request, in writing, a hearing before the school
committee or school board. The hearing shall be public or
private, in the discretion of the teacher. Both teacher and
school board shall be entitled to be represented by counsel
and to present witnesses. The board shall keep a complete
record of the hearing and shall furnish the teacher with a
copy.” Section 16-13-4(a); see also Dec. 2016 Decision at
32.
Section 16-13-5(a) requires that a school committee conduct a pre-suspension
hearing before suspending a teacher, and, at said hearing, “consider any available
evidence and afford the teacher or his or her counsel an opportunity to respond to that
evidence.” See Dec. 2016 Decision at 32-33.
The Hearing Officer found that Appellant’s due process rights were violated. See
Dec. 2016 Decision at 32-36. Superintendent Auger and the School Committee’s
Statement of Cause discussed the Viner Report which Appellant was not provided with
until approximately eight months after Superintendent Auger gave his recommendation,
and the School Committee drafted the Statement of Cause. Id. at 34. In addition, the
Hearing Officer indicated that the Statement of Cause did not mention the School

7
District’s Sexual Harassment Policy. Id. at 35; see also Statement of Cause. However, the
evidentiary hearing that took place thereafter was an adequate remedy for prior due
process violations. (Dec. 2016 Decision at 36 n.37.)
2
Whether School Committee Satisfied Its Burden to Show the Termination of
Appellant’s Employment Was for Good and Just Cause
The Hearing Officer discussed Appellant’s alleged nicknames for students
including “Crop Top Karen” and “babela,” and that eight of the nine students who
testified did not think Appellant made those comments with sexual intent. Id. at 39-40.
Even Doe’s initial complaint regarding the alleged kiss on the cheek was not intended by
Appellant as a sexual act, rather it was meant to comfort her. Id. at 40. The Hearing
Officer noted inconsistent testimony from Jones regarding Appellant allegedly massaging
her shoulders which he concluded undermined her credibility. See Viner Report at 3;
Dec. 2016 Decision at 41. Before Attorney Lombardo, Rodriguez said that Appellant
frequently massaged her shoulders; before the School Committee, she testified that it
happened only once. See Viner Report; Dec. 2016 Decision at 41. Additionally, the
Hearing Officer took issue with the Viner Report not containing credibility
determinations based on the interviews contained within it. Dec. 2016 Decision at 43; see
also Viner Report.
As a result, the Hearing Officer concluded that the School Committee did not
satisfy its burden to show the dismissal of Appellant was for “good and just cause.” (Dec.
2016 Decision at 44.) Therefore, the Hearing Officer reversed the School Committee’s
findings. Id. at 44-45.

8
D
Commissioner of Education Ken Wagner’s Decision
On May 9, 2017, Commissioner of Education Ken Wagner (Commissioner
Wagner) issued a final decision and order in which he accepted the Hearing Officer’s
conclusions of law and findings of fact. (Appellant’s Mem. in Supp. of Appeal Ex. A at 2
(May 9, 2017, Commissioner Wagner’s Decision).) However, Commissioner Wagner
found that the Hearing Officer applied the incorrect legal standard leading to the wrong
conclusion and that the “School Committee met its burden of proving that its suspension
and dismissal of [Appellant] was for ‘good and just cause’ . . .” Id.
Commissioner Wagner concluded that Appellant’s admitted behavior of blowing
a kiss in Doe’s ear and, generally, not maintaining a classroom with adequate
professional boundaries with his students satisfied the “good and just cause” standard for
termination. Id. at 5-6. Commissioner Wagner asserted that, for sexual harassment, the
intent of the accused is immaterial; thus, making Appellant’s argument about lacking
intent to sexually harass students unavailing. Id. at 6. Instead, the focus lies with the
impact, and Doe and Jones made clear that those experiences detrimentally influenced
their education. Id. In conclusion, Commissioner Wagner affirmed the School
Committee’s decision to terminate Appellant’s employment following suspension due to
a violation of the Sexual Harassment Policy, finding that the School Committee satisfied
its burden to show “good and just cause” for the suspension and dismissal of Appellant.
Id.

9
E
Subpoenas
Appellant’s attorney requested the Hearing Officer issue three subpoenas: witness
subpoenas for Attorney Carroll and Attorney Lombardo and a subpoena duces tecum.2
Dec. 2016 Decision at 12-13; North Kingstown School Committee v. Wagner, 176 A.3d
1097, 1098 (R.I. 2018). The School Committee opposed these subpoenas by filing a
Miscellaneous Petition in the Rhode Island Superior Court to quash them. (Dec. 2016
Decision at 13; North Kingstown School Committee, 176 A.3d at 1099.) Subsequently,
the trial justice granted the petition in part and denied it in part which Appellant appealed.
(Dec. 2016 Decision at 13-14; North Kingstown School Committee, 176 A.3d at 1099.)
While Commissioner Wagner’s May 9, 2017 decision was pending on appeal to
the Council, the Rhode Island Supreme Court issued its Opinion on the subpoenas. See
generally North Kingstown School Committee, 176 A.3d 1097; Appellant’s Mem. in
Supp. of Appeal Ex. N at 2 (Commissioner Infante-Green’s Ruling on Mot. to Reopen
the R.). “[T]he sole issue on appeal is the hearing justice’s grant of the school
committee’s motion to quash the subpoenas compelling the attorneys’ testimony.” North
Kingstown School Committee, 176 A.3d at 1099. The Rhode Island Supreme Court
remanded the case to the Superior Court, requiring the trial justice to examine the
applicability of the attorney-client privilege for each question. Id. at 1100.
Subsequently, Attorney Carroll and Attorney Lombardo were deposed, and
neither party raised any issue regarding privilege. (Commissioner Infante-Green’s Ruling
on Mot. to Reopen the R. at 3); Appellant’s Mem. in Supp. of Appeal Ex. K (Attorney
2 These subpoenas were issued pursuant to G.L. 1956 § 16-39-8. North Kingstown School
Committee v. Wagner, 176 A.3d 1097, 1098 (R.I. 2018).

10
Carroll Dep.); Appellant’s Mem. in Supp. of Appeal Ex. L (Attorney Lombardo Dep.).)
On October 15, 2018, Appellant filed a Motion to Reopen Record and Supplemental
Memorandum on Remand. (Appellant’s Mem. in Supp. of Appeal Ex. M.)
1
Attorney Lombardo Deposition
On April 30, 2018, Aubrey Lombardo, Esq. was deposed, and she testified that
she interviewed North Kingstown High School students about the allegations against
Appellant. (Appellant’s Br. Ex. L 5:2-5 (Lombardo Dep. Tr.).) First, Attorney Lombardo
interviewed Doe on July 21, 2015 with her mother present. Id. at 12:10-20, 14:18-22.
Attorney Lombardo testified that she also interviewed Selena Jones, Karen White, Amy
Anderson, and Kelly Rodriguez. Id. at 17-20. During each interview, Attorney Lombardo
brought a list of questions and typed the students’ answers. Id. at 15:2-13.
Subsequently, Attorney Lombardo prepared the Viner Report and received text
messages between Jones and Doe that she included therein. Id. at 23:1-24:10; Viner
Report. While Attorney Lombardo found the students credible, she did not include that
finding in the Viner Report. Id. at 40:9-41:1. Attorney Lombardo testified that she wanted
to interview Abby Shapiro but was unable to contact her. Id. at 25:1-15. Attorney
Lombardo testified that she had previously conducted similar investigations. Id. at 53:15-
18.
2
Attorney Carroll Deposition
On April 30, 2018, Mary Ann Carroll, Esq. was deposed, and she testified that she
received the allegation against Appellant in early summer of 2015. (Attorney Carroll

11
Dep. 8:6-12.) She testified that she decided to investigate and requested Attorney
Lombardo to do so. Id. at 9:21-23. After the investigation, Attorney Carroll held the pre-
deprivation hearing. Id. at 13:4-6. Attorney Carroll testified that Attorney Lombardo
provided her with a list of questions for the pre-deprivation hearing. Id. at 21:24-22:18.
She testified that she discussed the allegations against Appellant with the union
representative, Mary Barten. Id. at 25:3-11, 17-19. Attorney Carroll testified that she had
never read the Viner Report because she did not work on the investigation. See id. at
32:6-11.
F
Commissioner Infante-Green’s Ruling on the Motion to Reopen the Record
On February 19, 2020, Angelica Infante-Green, sitting Commissioner of the
Department of Education (Commissioner Infante-Green), ruled on Appellant’s Motion to
Reopen the Record. (Commissioner Infante-Green’s Ruling on Mot. to Reopen the R.)
Appellant argues that the depositions of Attorney Carroll and Attorney Lombardo show
that the investigation was biased, and, therefore, the Hearing Officer should reissue his
initial decision which should be approved by Commissioner Infante-Green. Id. at 4.
Commissioner Infante-Green incorporated the two depositions into the record,
finding that they were material. Id. at 6. Commissioner Infante-Green agreed with
Appellant’s assertion that his due process rights were violated during the investigation
but concluded that those violations were cured through the subsequent hearing. Id. at 6-7.
In summation, Commissioner Infante-Green concluded that the new evidence from the
depositions was not
“material to any of the factual findings made by the hearing
officer and accepted by the Commissioner as the basis for

12
his May 9, 2017 decision that the School Committee had
met its burden of proof with respect to ‘good and just
cause’ for [Appellant’s] termination. This part of the
factual record remains identical to that relied upon by the
prior Commissioner in making his decision. In light of this,
it would be inappropriate for the undersigned to reassess
the evidence, arrive at different conclusions, or ‘review’ the
decision of a predecessor to determine legal error. This is
the prerogative of the Council on Elementary and
Secondary Education.” Id. at 7.
Therefore, Commissioner Infante-Green affirmed Commissioner Wagner’s decision. Id.
G
Council on Elementary and Secondary Education Decision
Appellant timely appealed Commissioner Infante-Green’s decision on four
grounds, alleging that Commissioner Infante-Green erred by
“(1) not applying the appropriate de novo standard of
review for a teacher termination;
“(2) disregarding the factual findings of the hearing officer;
“(3) failing to apply the appropriate standard for “good and
just cause” for a teacher termination; and
“(4) ignoring the failure to give Appellant his due process
rights.” (Appellant’s Mem. in Supp. of Appeal Ex. O at 1-2
(Council’s Decision).)
The School Committee argued that Commissioner Infante-Green’s decision
should be affirmed and requested that the finding that the School Committee violated
Appellant’s due process rights be overturned. Id. at 2. The Council concluded that
Commissioner Infante-Green properly applied the de novo standard of review because the
record indicates the fact finding by Commissioner Infante-Green. Id. at 2-3. The Council
found Appellant’s second argument unavailing because Appellant was unable to indicate
any rejection by Commissioner Infante-Green of a finding of fact by the Hearing Officer.
Id. at 3. For Appellant’s third argument, the Council determined that Commissioner

13
Infante-Green cited to good law for the “good and just cause” standard, and thus was not
in error. Id. Lastly, the Council determined the subsequent de novo hearing cured any due
process violations. Id. at 4.
II
Standard of Review
Section 16-13-4, governing the dismissal of tenured teachers, allows any party
aggrieved by a decision of a school board to appeal to the Department of Elementary and
Secondary Education and to further obtain judicial review of that decision in the Superior
Court. Section 42-35-15(g) of the Administrative Procedures Act (APA) states:
“The court shall not substitute its judgment for that of the
agency as to the weight of the evidence on questions of
fact. The court may affirm the decision of the agency or
remand the case for further proceedings, or it may reverse
or modify the decision if substantial rights of the appellant
have been prejudiced because the administrative findings,
inferences, conclusions, or decisions are:
“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) Made upon unlawful procedure;
“(4) Affected by other error of law;
“(5) Clearly erroneous in view of the reliable, probative,
and substantial evidence on the whole record; or
“(6) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.”
In reviewing an agency decision, this Court is limited to an examination of the
certified record in deciding whether the agency’s decision is supported by legally
competent evidence. Nickerson v. Reitsma, 853 A.2d 1202, 1205 (R.I. 2004) (citations
omitted). Legally competent evidence has been defined as “‘such relevant evidence that a
reasonable mind might accept as adequate to support a conclusion, and means an amount
more than a scintilla but less than a preponderance.’” Elias-Clavet v. Rhode Island

14
Department of Employment and Training Board of Review, 15 A.3d 1008, 1013 (R.I.
2011) (quoting Foster-Glocester Regional School Committee v. Board of Review, 854
A.2d 1008, 1012 (R.I. 2004)).
This Court may not substitute its judgment for that of the agency as to the weight
of the evidence on questions of fact. Interstate Navigation Co. v. Division of Public
Utilities & Carriers of Rhode Island, 824 A.2d 1282, 1286 (R.I. 2003) (citations
omitted). Thus, “if ‘competent evidence exists in the record, the Superior Court is
required to uphold the agency’s conclusions.’” Auto Body Association of Rhode Island v.
Rhode Island Department of Business Regulation, 996 A.2d 91, 95 (R.I. 2010) (quoting
Rhode Island Public Telecommunications Authority v. Rhode Island State Labor
Relations Board, 650 A.2d 479, 485 (R.I. 1994)). The Superior Court’s power to order a
remand under § 42-35-15 is merely declaratory of the inherent power of the court ‘“to
remand, in a proper case, to correct deficiencies in the record[.]”’ Champlin’s Realty
Associates v. Tikoian, 989 A.2d 427, 449 (R.I. 2010) (quoting Lemoine v. Department of
Mental Health, Retardation and Hospitals, 113 R.I. 285, 290, 320 A.2d 611, 614 (1974)).
This broad power ensures litigants a meaningful review of their action. Id. (quoting
Lemoine, 113 R.I. at 290, 320 A.2d at 614).
Section 16-13-4 provides for a multi-tier review process for the dismissal of
tenured teachers. Bochner v. Providence School Committee, 490 A.2d 37, 39-40 (R.I.
1985). This system is similar to a funnel. Environmental Scientific Corp. v. Durfee, 621
A.2d 200, 207-08 (R.I. 1993). At the first level of review, the hearing officer “sit[s] as if
at the mouth of the funnel” and analyzes the evidence, issues, and live testimony. Id. At
the second level of review, the “discharge end” of the funnel, the board only considers

15
evidence that the hearing officer received firsthand. Id. Our Supreme Court has held,
therefore, that the “further away from the mouth of the funnel that an administrative
official is . . . the more deference should be owed to the factfinder.” Id. Determinations of
credibility by the hearing officer, for example, should not be disturbed unless they are
“clearly wrong.” Id. at 206.
III
Analysis
Before this Court, Appellant contends there were substantive and procedural due
process violations. See generally Appellant’s Br. in Supp. of the Appeal from a Decision
of the Council on Elementary and Secondary Education at 75-87, 92-100 (Appellant’s
Br.) In addition, Appellant avers that Commissioner Wagner’s decision, the Council’s
decision, and Commissioner Infante-Green’s decision contained errors of law and
improper analysis. Id. at 38-74, 89-92.
A
Due Process
1
Substantive Due Process
Appellant contends that his substantive due process rights were violated by the
School Committee failing to provide the Viner Report, other significant documents
related to Appellant’s termination, and an adequate Statement of Cause. Id. at 75. Those
actions, according to Appellant, “deprived [Appellant] of his statutory right and
opportunity to convince its members not to terminate his employment and instead, to
employ a lesser form of discipline, if necessary.” Id.; see also § 16-13-3(a). The School

16
Committee and the Council’s argument pertaining to substantive and procedural due
process violations are identical; Appellant’s de novo hearing before the Hearing Officer
cured prior due process violations. (Appellee North Kingstown School Comm.’s Br. in
Opp’n to Appeal at 16 (School Comm.’s Br. Opp’n); Council’s Br. Opp’n at 13-14.)
Tenured teachers possess a property interest in continued employment which
cannot be stripped from them without due process. Barber v. Exeter-West Greenwich
School Committee, 418 A.2d 13, 19-20 (R.I. 1980). “Accordingly, a state employee who
under state law, or rules promulgated by state officials, has a legitimate claim of
entitlement to continued employment absent sufficient cause for discharge may demand
the procedural protections of due process.” Goss v. Lopez, 419 U.S. 565, 573 (1975); see
also generally Lynch v. Gontarz, 120 R.I. 149, 386 A.2d 184 (1978). Section 16-13-3(a)
mandates that a tenured teacher may only be dismissed for “good and just cause;”
therefore, a tenured teacher may not be dispossessed of the position absent due process of
law under the Fourteenth Amendment. Barber, 418 A.2d at 19-20.
The School Committee and the Council’s argument is supported by controlling
case law. In Barber, an adequate posttermination hearing remedied due process
violations, making a pretermination hearing superfluous. Barber, 418 A.2d at 20. There, a
tenured teacher argued that the Exeter-West Greenwich School Committee trampled his
due process rights by terminating him without providing him with a Statement of Cause
amongst other things. Id. at 19. Likewise, in this case, a posttermination hearing took
place before a Hearing Officer from the Commission of Education. See May 9, 2017,
Commissioner Wagner’s Decision. Therefore, the posttermination hearing before the
Hearing Officer cured the substantive due process violations that occurred beforehand.

17
2
Procedural Due Process
Appellant makes numerous arguments concerning procedural due process
violations contained in the May 9, 2017 Commissioner Wagner Decision, Commissioner
Infante-Green’s Ruling on Motion to Reopen the Record, and the Council’s Decision.
(Appellant’s Br. at 75-89, 92-100.)
i
Commissioner Wagner’s Decision
Appellant argues that the May 9, 2017 Commissioner Wagner Decision did not
include a remedy for due process violations. Appellant’s Br. at 78-79; see also May 9,
2017, Commissioner Wagner’s Decision. Additionally, the Hearing Officer’s decision
stated that the School Committee violated Appellant’s procedural due process rights
which were subsequently cured through the de novo evidentiary hearing, and, according
to Appellant, this mandated discussing a remedy on appeal. Appellant’s Br. at 75-78; see
also Dec. 2016 Decision at 32-37. In opposition, the School Committee and the Council
contend that the de novo hearing before the Hearing Officer cured any procedural due
process violations that occurred previously. School Comm.’s Br. Opp’n at 16 (citing
Ciprian v. Providence School Board, No. 2009-6059, 2009 WL 4479251 (R.I. Super.
Nov. 27, 2009); Council’s Br. Opp’n at 13-14 (citing Richardson v. Providence School
Board, RIDE, slip op at 10 (R.I., filed May 25, 2005)).
The Hearing Officer’s decision states that Appellant was not provided with an
adequate opportunity to prepare a defense because he was not given the identities of his
accusers or a sufficient description of the charges against him which is a procedural due

18
process violation. (Dec. 2016 Decision at 35-36.) Further, the Hearing Officer discussed
the general rule that a de novo evidentiary hearing after giving adequate notice of the
charges properly remedies such due process violations, and such a hearing occurred
before the Hearing Officer. Id. at 36.
In Richardson, Commissioner McWalters found there were procedural due
process violations pertaining to notice that were cured through a full and fair de novo
hearing. Richardson, RIDE at 10-11.3 Likewise, in Barber, the Rhode Island Supreme
Court held that a sufficient posttermination hearing cures procedural due process
violations. Barber, 418 A.2d at 20. There, the Exeter-West Greenwich School Committee
voted not to renew a teacher’s (Barber’s) contract for, inter alia, hitting students. Id. at
15-16. Barber contended that the school district violated his procedural due process rights
because the school district never held a hearing, and Barber never received a statement of
cause. Id. at 18-19. However, the Rhode Island Supreme Court noted that Barber received
prior warnings from the principal. Id. at 19. Ultimately, the Rhode Island Supreme Court
concluded, “[w]e believe that the procedures employed by the school committee in
dismissing Barber minimized the likelihood that the dismissal was erroneous and
afforded him an expeditious posttermination hearing to remedy any errors that might
have arisen. By so providing, the procedures satisfied the minimal requirements of due
process.” Id. at 20.
3 “We have reviewed the law relating to appropriate relief, or remedy, for due process
violations. Based on that review, we decline to award actual damages in the nature of lost
wages in this case. The better rule on procedural violations, both constitutional and
statutory, is ensuring that the required procedures are furnished without delay.”
Richardson, RIDE at 10.

19
Similarly, Appellant did not receive a copy of the Viner Report prior to the
hearing which was a violation of his procedural due process rights. See Dec. 2016
Decision at 34-36. Appellant’s subsequent hearing before the Hearing Officer—with
counsel present and copious witnesses testifying—cured the procedural due process
violations. See Tr. Vol. IV, afternoon session; see also Tr. Vol. IV, morning session; see
also Tr. Vol. II; see also Tr. Vol. I; see also Tr. Vol. III. Hence, Commissioner Wagner
and the Hearing Officer did not err by not discussing remedies for due process violations
in their respective decisions.
ii
Commissioner Infante-Green’s Decision
Appellant avers that Commissioner Infante-Green improperly relied on
Commissioner Wagner’s decision regarding procedural due process violations because
Commissioner Wagner never expressly discussed the rule outlined supra. (Appellant’s
Br. at 79.) In addition, Appellant contends that Commissioner Infante-Green’s decision
relied on incorrect law, and the case law shows that a de novo hearing does not cure
procedural due process violations. Id. at 83-89. Alternatively, Appellant argues that the
novel, material evidence before Commissioner Infante-Green—Attorney Lombardo and
Attorney Carroll’s depositions—makes a posttermination hearing inadequate to cure
procedural due process deficiencies. Id. at 88-89.
In Commissioner Infante-Green’s decision, she concludes, “even with this new
evidence, based upon the analysis that the violation of [Appellant’s] statutory and
constitutional rights to due process was fully remedied by the de novo hearing before the

20
hearing officer, we affirm [Commissioner Wagner’s] May 9, 2017 decision in this
respect.” (Commissioner Infante-Green’s Ruling on Mot. to Reopen the R. at 7.)
Appellant argues that Commissioner Infante-Green should have relied on other
case law in reaching her decision. See Appellant’s Br. at 83-87. For instance, in Cotnoir
v. University of Maine Systems, 35 F.3d 6, 12 (1st Cir. 1994), the court found “[w]here an
employee is fired in violation of his due process rights, the availability of post-
termination grievance procedures will not ordinarily cure the violation.” See Appellant’s
Br. at 83-86 (citing Cotnoir, 35 F.3d 6). Appellant also relied on Kercado-Melendez v.
Aponte-Roque, 829 F.2d 255, 263 (1st Cir. 1987). Id. at 80-81. The court there found that
a posttermination hearing was inadequate to remedy procedural due process violations.
Id. (citing Kercado-Melendez, 829 F.2d 255). However, Kercado-Melendez is
distinguishable from the case at hand both factually and procedurally. Kercado-Melendez,
829 F.2d at 257-58. Namely, Kercado worked as a superintendent, and she averred that
she was removed from the position due to her political involvement. Id. at 256-57. In
addition, Kercado never sought an administrative appeal, instead opting to bring her
action in federal court. Id. at 258. Whereas here, Appellant brought an APA appeal and
does not contend that the School Committee removed him due to an ulterior motive. See
Compl.; see also generally Appellant’s Br.
Appellant’s final argument takes issue with how Commissioner Infante-Green
weighed the additional evidence at her disposal, Attorney Carroll’s and Attorney
Lombardo’s depositions. (Appellant’s Br. at 88-89.) This Court does not weigh evidence
on appeal; rather, it only disturbs the finding if there is a lack of substantial evidence.
Interstate Navigation Co., 824 A.2d at 1286. There is substantial evidence to support

21
Commissioner Infante-Green’s finding that the additional evidence did not materially
alter the factual findings of the Hearing Officer and Commissioner Wagner. See
Commissioner Infante-Green’s Ruling on Mot. to Reopen the R. at 7. The depositions of
Attorney Carroll and Attorney Lombardo, as summarized afore, did not provide
consequential information that made the Hearing Officer’s factual findings erroneous.
The depositions did not alter the undisputed evidence on the record.
In conclusion, the Rhode Island Supreme Court cases analyzed supra are
controlling authority, and Commissioner Infante-Green properly relied on them. Plainly,
Commissioner Infante-Green did not err as a matter of law, and there is substantial
evidence to support how Commissioner Infante-Green weighed the new evidence.
iii
Council on Elementary and Secondary Education’s Decision
Appellant makes the same procedural due process arguments as discussed
previously—that the Council did not rely on the correct legal standard when finding that
the due process violations were cured by the posttermination hearing, and Appellant is
entitled to a remedy as a result. (Appellant’s Br. at 92-100.)
For the same reasons as previously stated, Appellant’s procedural due process
arguments are not persuasive. Therefore, the Council did not violate Appellant’s
procedural due process rights in its decision.

22
B
Sufficiency of the Decisions
The remainder of Appellant’s arguments center around the sufficiency of
Commissioner Wagner’s decision, Commissioner Infante-Green’s decision, and the
Council’s decision. (Appellant’s Br. at 38-65, 89-92.)
1
Commissioner Wagner’s Decision
i
Commissioner Wagner’s Deference to the Hearing Officer
Appellant contends that Commissioner Wagner failed to provide adequate
deference to the Hearing Officer and did not rely on substantial evidence when he
rejected the Hearing Officer’s conclusion that Appellant did not sexually harass any
students. (Appellant’s Br. at 44-45.) In opposition, the School Committee argues that
Commissioner Wagner based his decision on facts the Hearing Officer clearly established
and did not substitute his own credibility determinations in lieu of the Hearing Officer’s
credibility determinations. (School Comm.’s Br. Opp’n at 15-16). The Council did not
address this argument. See Council’s Br. Opp’n.
The Rhode Island Supreme Court’s decision in Durfee is illustrative on this issue.
There, the Department of Environmental Management (DEM) maintained a two-tiered
system for proceedings in which a hearing officer presides over the hearing and issues a
decision containing recommendations for the DEM director who issues the final decision.
Durfee, 621 A.2d at 207. In administrative appeals utilizing the two-tiered system, the
decisionmaker should afford deference to the credibility determinations of the factfinder.

23
Id. at 207-08. However, the agency’s final decision may overrule the hearing officer’s
decision as long as the final decision is supported by substantial evidence. Id. at 209.
Turning to the case at hand, the Hearing Officer made credibility determinations
on what he viewed as wildly contradictory testimony about Appellant by a myriad of
witnesses. See Dec. 2016 Decision. Commissioner Wagner accepted the Hearing
Officer’s findings of fact and most of the conclusions of law. (May 9, 2017,
Commissioner Wagner’s Decision at 2.) Commissioner Wagner rejected only the Hearing
Officer’s conclusion of law that the School Committee did not meet its burden to suspend
Appellant for “good and just cause.” Id. Commissioner Wagner relied on undisputed
evidence to conclude the School Committee satisfied the “good and just cause” standard.
Id. at 4-6. For instance, Commissioner Wagner referenced the undisputed evidence of
Appellant calling female students by a litany of nicknames such as “Crop Top Karen,”
“baby,” and “babala.” Id. at 4.
Therefore, Commissioner Wagner’s finding meets the substantial evidence
standard. He did not ignore the deference he is required to afford to the Hearing Officer’s
credibility determinations. Thus, Appellant’s argument on this point is unavailing.
ii
Commissioner Wagner’s Explanation of His Findings
Appellant makes a tangential argument that Commissioner Wagner’s decision is
arbitrary and capricious because he did not provide an adequate explanation of where the
Hearing Officer misapplied the law. (Appellant’s Br. at 63-65.) As a result, Appellant
contends that this makes judicial review impossible. Id. at 64. Neither the School

24
Committee nor the Council addressed this argument. See School Comm.’s Br. Opp’n; see
also Council’s Br. Opp’n.
Commissioner Wagner laid out multiple actions Appellant took that satisfied the
“good and just cause” standard, including frequently commenting on female students’
appearances and giving them distasteful nicknames. See May 9, 2017, Commissioner
Wagner’s Decision at 4. Therefore, Commissioner Wagner found that an amalgamation
of these actions satisfied the “good and just cause” standard. Id. at 5-6. This Court, which
may not substitute its judgment for Commissioner Wagner as to the weight of the
evidence, concludes that Commissioner Wagner provided an appropriate explanation for
how the Hearing Officer misapplied the law. See generally id.
iii
Commissioner Wagner’s Application of the Good and Just Cause Standard
Appellant contends that Commissioner Wagner applied the incorrect legal
standard for “good and just cause.” (Appellant’s Br. at 58-63.) Appellant takes issue with
the cases that Commissioner Wagner cited which explained the “good and just cause”
standard, including McCrink v. City of Providence, No. PC-10-4304, 2012 WL 4739138
(R.I. Super. Sep. 28, 2012), and McKenney v. Barrington School Committee, No. 2014-
2223, 2016 WL 3927584 (R.I. Super. July 14, 2016). Conversely, the School Committee
argues that the cases that Commissioner Wagner relies on for the “good and just cause”
standard, and the case law writ large all point to a flexible standard that requires fact-
intensive analysis. (School Comm.’s Br. Opp’n at 11-13.) Accordingly, Commissioner
Wagner engaged with the facts to conclude that “good and just cause” exists for the
suspension and termination of Appellant. Id. at 12-13. The Council cites to McCrink to

25
support its contention that “good and just cause” may be satisfied by a single instance of
conduct. (Council’s Br. Opp’n at 3.)
Section 16-13-3(a) states that “[n]o tenured teacher in continuous service shall be
dismissed except for good and just cause.” The Rhode Island Supreme Court has not
provided a definition of “good and just cause.” Commissioner Wagner relied on
persuasive authority when outlining the legal standard for “good and just cause.” (May 9,
2017, Commissioner Wagner’s Decision at 3 (citing McCrink, 2012 WL 4739138, at *5)
(“It has been said that the phrase includes ‘any ground that is put forth by the school
board in good faith and which is not arbitrary, irrational, unreasonable or irrelevant to the
task of building and maintaining an efficient school system.’”); McKenney, 2016 WL
3927584, at *6 n.14 (“[O]ther jurisdictions have explained that ‘the term [good and just
cause] includes any cause which bears a reasonable relation to the teacher’s fitness or
capacity to discharge the duties of his position.’”).
Appellant addresses this issue by stating that these cases are not controlling
authority. (Appellant’s Br. at 58-61.) Appellant found the hearing justice’s holding in
McCrink to be enlightening: “a decision to terminate a tenured teacher must be reached
after a careful examination of all the pertinent factors relating to the situation, with due
consideration of the effect the teacher’s conduct will have on the school authorities as
well as on the students.” Id. at 61 (quoting McCrink, 2012 WL 4739138, at *5).
Given that the Rhode Island Supreme Court has not provided a definition for
“good and just cause,” this analysis leads to the conclusion that the Commissioner of
Education, Hearing Officer, and this Court must rely on persuasive authority and closely
review the facts of each case. Here, Commissioner Wagner engaged in fact-intensive

26
analysis and accepted the credibility determinations of the Hearing Officer as the
factfinder. See May 9, 2017, Commissioner Wagner’s Decision. Consequently,
Commissioner Wagner did not apply the incorrect legal standard for “good and just
cause.”
iv
Was the Hearing Before Commissioner Wagner De Novo?
Appellant avers that Commissioner Wagner afforded the School Committee’s
decision improper deference. (Appellant’s Br. at 65-72.) Namely, Appellant argues the
language contained in Commissioner Wagner’s decision incorporated conclusions by the
School Committee which amounts to an error of law. Id. The School Committee argues
that its decision took center stage during the proceedings before the Hearing Officer due
to the burden on the School Committee. (School Comm.’s Br. Opp’n at 16.) Thus,
Commissioner Wagner commenting on the School Committee’s decision does not show
improper deference by Commissioner Wagner. Id. The Council did not discuss
Appellant’s argument on this issue. See Council’s Br. Opp’n.
G.L. 1956 § 16-39-2 mandates that “appeals from school committee actions to
the Commissioner of Education . . . contemplates a de novo hearing by the
commissioner.” Slattery v. School Committee of City of Cranston, 116 R.I. 252, 262, 354
A.2d 741, 747 (1976) (citing School Committee v. State Board of Education, 103 R.I.
359, 364, 237 A.2d 713, 716 (1968)). In Commissioner Wagner’s decision, he discusses
the School Committee’s decision in depth twice.4 (May 9, 2017, Commissioner Wagner’s
4 Commissioner Wagner discusses the School Committee’s decision in two main portions
of his decision:

27
Decision at 6-7.) However, Commissioner Wagner does not discuss deference to the
School Committee’s findings or decision. See id.
For the aforementioned reasons, Commissioner Wagner’s discussion of the
School Committee’s decision does not show improper deference. See id. Commissioner
Wagner properly reviewed the de novo hearing by the Hearing Officer.
2
Commissioner Infante-Green’s Decision
i
Did Commissioner Infante-Greene Commit Plain Error?
Appellant contends that Commissioner Infante-Greene found the new evidence
from Attorney Carroll and Attorney Lombardo to be material, but failed to analyze said
“The School Committee has discretion to determine what
constitutes good cause to terminate a teacher, which
includes any ground that is not irrational, unreasonable, or
unrelated to maintaining an efficient school system. The
School Committee’s decision was rational and reasonable
because it found, based on the evidence presented to it, Mr.
Viner’s conduct was unwelcome conduct of a sexually
harassing nature, as defined in the District’s Staff Policy on
Sexual Harassment, and that Mr. Viner’s conduct
unreasonably interfered with the educational environment
in his classroom.” (May 9, 2017, Commissioner Wagner
Decision at 6.)
“Based on the evidence before RIDE, the North Kingstown
School Committee’s conclusion that Mr. Viner’s conduct
was inappropriate and a violation of the District’s Staff
Policy on Sexual Harassment was in good faith and was not
arbitrary, irrational, unreasonable or irrelevant to the task of
building and maintaining an efficient school system. In
summary, the School Committee met its burden of proving
that there had been ‘good and just cause’ to justify its
December 7, 2015 decision to suspend and then dismiss
Mr. Viner.” Id. at 7.

28
evidence. (Appellant’s Br. at 72-73.) Therefore, according to Appellant, this action on the
part of Commissioner Infante-Green amounts to plain error, and this Court should vacate
her decision. Id. at 74. Again, neither the Council nor the School Committee mentioned
this argument. See School Comm.’s Br. Opp’n; see also Council’s Br. Opp’n.
In Commissioner Infante-Greene’s decision, she outlines the APA standard for
reopening a record based on new, material evidence. (Commissioner Infante-Green’s
Ruling on Mot. to Reopen the R. at 5.) A court will permit the additional evidence if
“it is shown to the satisfaction of the court that the
additional evidence is material and that there were good
reasons for failure to present it in the proceeding before the
agency . . . the court may order that the additional evidence
be taken before the agency upon conditions determined by
the court. The agency may modify its findings and decision
by reason of the additional evidence and shall file that
evidence and any modifications, new findings, or decisions
with the reviewing court.” Id. (emphasis added) (citing
§ 42-35-15(e).
Appellant’s argument on this point is unsupported by the facts and the law.
Appellant did not cite to any controlling authority in support of this assertion.
(Appellant’s Br. at 74 (citing Sparrow v. D.C. Office of Human Rights, 74 A.3d 698, 703
(D.C. 2013); Singh v. Mukasey, 264 F. App’x 83, 86 (2d Cir. 2008)). Section 42-35-15(e)
indicates that the School Commissioner is not required to modify her findings if she
reopens the record. Therefore, Appellant’s argument that Commissioner Infante-Greene
was required to provide a detailed analysis based on this new evidence—the two
depositions—is not persuasive. Commissioner Infante-Green did not commit an error of
law by not providing detailed analysis of the new material evidence.

29
3
The Council on Elementary and Secondary Education’s Decision
Appellant further argues that the Council did not give proper deference to the
Hearing Officer’s fact finding, and the Council’s Decision did not provide sufficient
analysis, making the decision arbitrary and capricious. (Appellant’s Br. at 89-92.) The
Council is not required to provide lengthy analysis given that it is not a factfinder in this
case. Durfee, 621 A.2d at 207-08. There is substantial evidence in the record to support
the Council’s finding that there was “good and just cause” for Appellant’s termination.
IV
Conclusion
After review of the entire record, this Court affirms the Council’s Decision which
concluded there was “good and just cause” for Appellant’s termination because there is
substantial evidence to support this conclusion. Counsel shall prepare the appropriate
judgment for entry.

30
RHODE ISLAND SUPERIOR COURT
Decision Addendum Sheet
TITLE OF CASE: James Viner v. Council on Elementary and
Secondary Education, et al.
CASE NO: PC-2021-02565
COURT: Providence County Superior Court
DATE DECISION FILED: April 5, 2024
JUSTICE/MAGISTRATE: Nugent, J.
ATTORNEYS:
For Plaintiff: Carly B. Iafrate, Esq.
John E. DeCubellis, Jr., Esq.
For Defendant: Paul V. Sullivan, Esq.