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NZTDT 2011/19

BEFORE THE NEW ZEALAND TEACHERS’ DISCIPLINARY TRIBUNAL

UNDER   AND	the Education Act 1989
IN THE MATTER	of disciplinary proceedings pursuant to Part 10A of the said Act
BETWEEN	THE NEW ZEALAND TEACHERS COUNCIL COMPLAINTS ASSESSMENT COMMITTEE   Complainant
AND	XXXXXXXXX   Respondent

This case has a somewhat protracted history. By Notice of Referral dated
18 September 2010, the Complainant referred the Respondent’s XXXXXXXXX 2009 convictions on charges of driving with excess blood alcohol to the Tribunal pursuant to s139AV(3) of the Education Act 1989.

The Notice of Referral sets out in tabular form the Respondent’s record of convictions on traffic and other offences dating back to 1986. These included five drink driving offences.

The Complainant alleged that:

“Cumulatively, the convictions are serious and call into question whether [the Respondent] is of good character and fit to be a teacher”.

The Chairman convened a pre-hearing telephone conference on
16 November 2010. At that conference the Complainant was represented by
Ms Phipps. The Respondent did not participate. At the conclusion of the conference the Chairman set the matter down for hearing on the papers, it appearing at that stage that the Respondent was unlikely to take any part in the process, and made directions in relation to the filing of evidence and submissions.

On 2 March 2011, the Respondent wrote to the Secretary apologising for his
non-attendance at the telephone conference, proffering an explanation for that (his commitment to Christchurch earthquake recovery work) and seeking further time to make submissions to the Tribunal. His letter also addressed aspects of the case itself.

The Secretary referred that letter to the Chairman and the Chairman determined, having regard to the fact that the Respondent seemed to be saying that he had not received and/or had an opportunity to consider all relevant papers, that he wanted to be given further time to do so, and directed that all relevant documentation was to be served (or re-served). The Respondent was invited to file and serve whatever material he wished the Tribunal to consider within a certain time frame. The Complainant was given a further period within which to respond.

Thereafter, on the Complainants behalf, Ms Phipps filed and served affidavit evidence proving the fact of the convictions referred to the Tribunal and the Respondent’s criminal record together with the Complainant’s submissions.

The Respondent, for his part, wrote again to the Secretary on 14 June 2011. In this letter he covered not only his substantive response to the charges and the Complainant’s evidence and submissions, but also raised a range of procedural matters.

On the Complainant’s behalf Ms Phipps provided a short response.

The Tribunal convened (by telephone conference) on 24 June 2011. Without going into detail, the Tribunal concluded that on the face of the material before it, the Respondent was in real jeopardy of an order revoking his registration. However, the Tribunal felt on balance that the Respondent had not been given sufficient opportunity to persuade it to adopt a different course and was disinclined to determine the case without giving the Respondent a further opportunity to do so.

That being the case, the Tribunal issued a minute on 13 July 2011, which traversed the background to the matter and concluded in these terms:

“Those conclusions have led the Tribunal to the preliminary view that it is obliged to consider deregistration. However, the Tribunal appreciates how serious such an outcome would be for the Respondent, and does not wish to reach such a conclusion without giving him a full and fair opportunity to persuade it that a different outcome – perhaps along the lines suggested by Ms Phipps in her submissions in response – is appropriate.

For those reasons, the Tribunal has decided to defer reaching a final conclusion in this matter and instead invite the parties – but most particularly the Respondent - to attend a short hearing for the purposes of addressing those issues, that is to say for the purpose of giving the Respondent an opportunity to persuade it that he does indeed appreciate the seriousness of the situation and that he either has or is putting in place strategies of the sort described earlier.

Accordingly, the Secretary is directed to liaise with the parties for the purposes of setting the case down for such a hearing, preferably in Wellington, but if necessary elsewhere.

Of course the Tribunal recognises that it is not in a position to force the Respondent to attend a hearing, and if he declines the invitation to do so, will proceed to deal with the matter on the available material”.

As we say, that memo was issued on 13 July 2011. The Respondent informed the Secretary shortly after that date that he would indeed like to appear before the Tribunal. Since then, there has been a substantive amount of toing and froing between the Secretary and the parties as to such matters as venue and procedure for any such hearing.

That eventually culminated in a further telephone conference on 26 August 2011, during the course of which the Respondent informed the Chairman, and through him the Tribunal, that in fact he had no desire to teach for the foreseeable future and would be quite content for the Tribunal to deregister him.

In those circumstances, the Tribunal proposes to proceed to deal with the matter by way of censure and deregistration, effectively at the Respondent’s invitation.

Before doing so we set out the bare bones of the case.

Evidence

The Complainant’s evidence was in affidavit form, the affidavit being sworn by one of the New Zealand Teachers Council’s case coordinator’s, Neil Kevin Mallon.

Mr Mallon first deposed as to his position and authority to give evidence. He then described how the New Zealand Teachers Council (the Council) became seized of this matter when the Respondent applied to renew his practising certificate and the consequential Police vet revealed his convictions. The relevant convictions include convictions for drink driving offences between 1986 and 2001 (which the Council had been aware of and had considered in 2005 when the Respondent’s practising certificate was renewed) and two subsequent convictions.

Mr Mallon moved on to describe the approach which the Council adopted to the matter and which ultimately led to the Complainant referring the Respondent’s convictions to the Tribunal.

He produced:

Mr Mallon also produced the available documentation for a number of these convictions.

The Tribunal is entirely satisfied that the Complainant has established all of these convictions, including the Respondent’s conviction on XXXXXXXXX 2006, of driving with excess breath alcohol in which the blood/breath count was 936 and the conviction on XXXXXXXXX 2008, in which the blood/breath count was 908.

Submissions

Given the background to this matter as outlined above, and given the Respondent’s approach, no useful purpose would be served by setting out the submissions made on the Complainant’s behalf by Ms Phipps, or recording the various communications between the Respondent and the Secretary.

It is sufficient to make three broad points:

(a) First, as the Tribunal has now said in a number of cases and in a range of circumstances, its jurisdiction is not limited to the behaviour of teachers in their professional capacity. Any actions of a teacher which reflects adversely on his or her suitability to hold registration as such is within the Tribunal’s jurisdiction. Although there is no suggestion in this case that the teacher’s convictions resulted from actions within his professional capacity, the Tribunal is nevertheless able to deal with the matter;

(b) There is no contest between the parties as to the fact or seriousness of these convictions;

(c) Although the Respondent’s historical convictions (those which occurred prior to XXXXXXXXX 2006, and which the Council was aware of when it renewed his practising certificate in 2005) are of less significance in this case than the two more recent convictions, nevertheless they are relevant background;

(d) The Respondent has informed the Tribunal – through the Chairman – that he regards censure and deregistration as the appropriate outcome, and does not wish to participate in a hearing to contend for some other outcome.

Discussion

Against that background, this case requires little analysis or discussion. The Tribunal is entirely satisfied that the Respondent’s convictions on serious drink driving offences in XXXXXXXXX 2006 and XXXXXXXXX 2009 reflect adversely on his fitness to hold a practising certificate as a teacher.

In those circumstances, the Tribunal regards the appropriate outcome in this case as being censure and deregistration.

This being a case involving a referral of convictions, no question of costs arises.

Order

The Tribunal’s formal order is therefore as follows:

We record that it is always open to a teacher whose registration has been revoked to reapply for registration at any stage in the future. This is a case in which we expect that if, at some suitable time in the future, the Respondent is able to demonstrate to the Council – or the arm of that body which makes decisions relating to registration – that he has mastered his obvious difficulty with alcohol, faced up to his responsibilities, and is unlikely to reoffend in the same way, an application for re-registration may well be received with some sympathy.

Dated 3 October 2011

__________________________________

Kenneth Johnston

1. A person who is dissatisfied with all or any part of a decision of the Disciplinary Tribunal under sections 139AU (2) or 139AW of the Education Act 1989, may appeal to a District Court.

2. An appeal must be made within 28 days of receipt of written notice of the decision, or within such further time as the District Court allows.

3. Subsections (3) – (7) of section 126 apply to every appeal as if it were an appeal under subsection (1) of section 126.

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