American Arbitration Association

VOLUNTARY LABOR ARBITRATION TRIBUNAL In the Matter of Arbitration Between HAVERHILL EDUCATION ASSOCIATION -andHAVERHILL SCHOOL COMMITTEE CASE NUMBER: 11 390 01025 12 AWARD OF THE ARBITRATOR
The UNDERSIGNED ARBITRATOR(S), having been designated in accordance with the arbitration agreement entered into by the above-named Parties, and dated and having been duly sworn and having duly heard the proofs and allegations of the Parties, AWARDS as follows:

The Haverhill Public Schools had just cause within the meaning of M.G.L. c. 71, §42 to terminate the employment of Daniel Francescone. The grievance is denied.

Date:

August 17, 2013 Philip Dunn, Arbitrator

Haverhill Education Assoc. and Haverhill Sch. Comm., AAA# 11 390 01025 12 Appearances:

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Thomas G. Guiney, Esq., counsel for the Haverhill Education Association David F. Grunebaum, Esq. & William D. Cox, Esq., counsel for the Haverhill School Committee STIPULATED ISSUE Did the Haverhill Public Schools have just cause within the meaning of M.G.L. c. 71, §42 to terminate the employment of Daniel Francescone? If not, what shall the remedy be? SUMMARY OF PROVEN FACTS1

Prior to the termination of his employment in April 2012, the grievant, Daniel Francescone, had served as a science teacher at the J.G. Whittier Middle School in the Haverhill Public Schools for over 13 years. He had received positive evaluations over the years. He had never been disciplined for anything, prior to the events that occurred after the start of the 20102011 school year. He had taught at the Whittier under the direction of several different principals, including Principals Powers, Beth Kitsos (fall 2006 to spring 2010), and finally Toni Donais from and after August 2010. In addition to his regular teaching duties, the grievant over the years (and under various principals) also performed a number of advisory and extra-curricular functions. One such function was the organization of student dances that would occur at the Whittier School throughout the school year. Another was serving as the faculty advisor to the Junior National Honor Society. He also supervised the student-run “School Store,” and he further served as one

On many factual issues, some collateral and others more central, the grievant’s testimony was at marked variance with the testimony offered by several different witnesses. For the reasons discussed at length in the “Discussion” section of this opinion, in these areas of evidentiary conflict, I have almost exclusively credited the testimony of the Employer’s witnesses, over the conflicting testimony offered by the grievant.

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of the co-advisors of the annual, eighth graders’ trip to Washington D.C. He also oversaw the sales of lollipops at the school, with profits from those sales helping to defray the cost of the Washington D.C. trip. In each of those advisory and extra-curricular roles, the grievant had frequent occasion to receive, secure, spend, and account for funds that were generated out of, or/or needed to finance, those various activities. Some of the most serious charges that ultimately were made against Mr. Francescone late in the fall of 2010 involved his handling, or alleged mishandling, of these funds. When Kitsos became principal at the start of the 2006-2007 school year, Francescone and another teacher, Jennifer Torrisi, basically were running the school dances. Kitsos as principal would attend, and sell tickets at the door. She relied on the grievant, however, to secure the cash from those sales; when she had accumulated a bunch of $20 bills, she would hand a wad of them over to the grievant for safekeeping. Tickets also were sold in advance, by students during the lunch hour. Cash collected from those advance sales went into a cash box, which the grievant locked in a closet in his classroom. From the cash so collected from advance sales, the grievant would buy at BJ’s snacks, bottled waters, and other items that would be sold at a snack counter at the dance. The disc jockey was paid in cash, by Kitsos, so she did count that specific sum before giving it to the DJ at the end of the dance. When a dance ended, neither she nor anyone else counted all the other collected cash before the evening ended. Rather, the grievant would take the collected cash home, and count it there. The grievant then would bring to Kitsos “the profits,” as she understood it, which profits she would use to support the school’s technology account.2
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This was an initiative which Kitsos and the staff had developed, to upgrade the technology at the W hittier.

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Kitsos was aware that the grievant was keeping cash locked in his classroom closet. She presumed that he was only keeping a kitty of a maximum of $200 in his closet, which kitty would be used as the cash register start-up cash for the next dance. She as principal had no problem with that, and she was not aware at the time of any school department rule or policy which would have prohibited that manner of securing cash from the dances. Under Kitsos’s principalship, the grievant also was overseeing the school store, which was run by students who were members of the Junior National Honor Society. Cash profits from the school store were intended to support various JNHS activities, including the induction ceremony, a couple of JNHS field trips, and the grievant’s stipend ($540/year) for serving as the JNHS advisor. The grievant would go to BJ’s with students to purchase the merchandise which was sold at the school store, using cash that had been generated by earlier sales out of the store.3 The grievant at times would show Kitsos certain receipts for items purchased for the school store, but Kitsos did not receive from the grievant any year-end accounting regarding income and expenses from the various cash-generating activities which the grievant was overseeing. As far as Kitsos was aware, the school store and school dance cash was all intermingled.4 On another matter, Kitsos’ promulgated policy at the Whittier was, “No students will eat lunch anywhere but in the cafeteria. We are trying to limit where we have food in the building.”

W hen Kitsos was principal, she and the grievant obtained from the parents of the JNHS students openended permission slips, which authorized their children to leave campus with the grievant to attend to JNHS business. The grievant testified at the arbitration hearing that in the spring of 2010, as Kitsos was preparing to leave as principal of the W hittier School and transfer to a different assignment, he spoke with Kitsos and informed her that he was planning to step down from his role of advisor to the JNHS. Kitsos was recalled in rebuttal, and testified that she did not recall that he so informed her, nor that she urged him not to so step down; rather, she presumed that he would be continuing as the JNHS advisor for the 2010-11 school year.
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This quoted language is taken directly from the Power Point presentation which Kitsos gave at the all-faculty meeting on the day before the start of each school year.5 However, notwithstanding this promulgated policy, Kitsos was aware that the grievant was allowing students to eat in his classroom. Kitsos put a stop to this activity for a period of time, but then it started up again, and Kitsos took no further action to stop the grievant from sharing lunches with students in his classroom. On still another matter, Kitsos’ policy at the Whittier School was that the windows on the classroom doors could not be covered over with anything. She wanted to be sure that she always could see into the classrooms through those windows, for the safety of all concerned. This was the policy during her administration, but this subject was not covered in the pre-school year Power Point presentation. Toni Donais became the principal of the J.G. Whittier Middle School in August 2010. Her predecessor in that role was Beth Kitsos. Ms. Donais at that point had completed 28 years of service in the Haverhill Public Schools. Prior to her 2010 appointment as the principal at Whittier, she had served a math teacher, and in that capacity, she and Francescone back some years earlier had worked together as fellow teachers at the Whittier Middle School. When Donais became principal of the Whittier in the fall of 2010, she had not previously served in the role of school principal. Her appointment to this new role came late in the summer of 2010, so she got a late start in preparing for the opening of the school year. In August, 2010,

The grievant stated with certainty that this issue of students eating lunches in classrooms was neither discussed by Kitsos nor addressed in her Power Point presentations at the all-faculty meetings before the start of school years. He explained that for years, he had kids eating lunch in his classroom, so such discussion or Power Point presentation would have stuck out. This matter never was covered in those fall meetings, the grievant testified assuredly.

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Mr. Francescone very graciously provided a lot of assistance to Principal Donais in preparing schedules and making room assignments for each of the students. Ms. Donais was very appreciative of this support which she received from Mr. Francescone, and they started off the school year in that very positive manner.6 As Kitsos had done before her, Principal Donais at the end of the summer held an allfaculty meeting on the day before students commenced classes in the fall, made comments in person, and showed a Power Point presentation. She had received from Kitsos the Power Point which Kitsos had utilized, and Donais re-used many of the slides with only cosmetic but not content changes, though with the order of presentation changed. In particular, she re-used, without change, the Power Point slide about no lunches being eaten in classrooms.7 Donais instructed the teachers that she did not want students eating in classrooms, and there would be no more ordering out from sub shops. Donais also amended some slides, and added slides which had not been included in Kitsos’ presentations. On a slide addressing field trips which Kitsos had utilized, Donais added an additional “bullet” which stated, “Send all money to office – do not keep large sums of money in your classroom.” Donais also substantially revised the closing slide of the Power Point presentation, so that it read as follows:

The grievant had provided similar support to Beth Kitsos when she had become the W hittier School’s principal in the summer of 2006, and she too had greatly appreciated Francescone’s assistance. The grievant stated with certainty that this issue of students eating lunches in classrooms was neither discussed by Donais nor addressed in her Power Point presentations at the all-faculty meetings before the start of school years. He explained that for years, he had kids eating lunch in his classroom, so such discussion or Power Point presentation would have stuck out. This matter never was covered in those fall meetings by either Kitsos or Donais, the grievant testified assuredly.
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Haverhill Education Assoc. and Haverhill Sch. Comm., AAA# 11 390 01025 12 Looking forward to another great year! • Staff: You are 100% responsible for what you say. No comments on students in the teacher’s room or outside of school. Do not put anything in e-mail that you would not put on the front page of the newspaper. All money must be turned into the office at the end of each school day. No money should be in classroom closets at any time. (Emphasis added). BAND will be on Tuesdays. Please let us know what we can do to help you continue to do the great job you are all doing.8

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Notwithstanding her directive about no ordering out for lunches and no eating in the classrooms, in mid-September, an order from a local sub shop was delivered to the office at the Whittier School. Students from Francescone’s class came to the office to pick up the delivered lunches. Principal Donais asked the kids where they were going with the delivered lunches. They responded, to Mr. Francescone’s classroom. Donais replied that the kids could eat the delivered lunches, but only at a cafeteria table. She presumed that this would be the end of the matter. The students followed Ms. Donais’ directive, and went to the cafeteria and there ate the food which had been delivered.

The grievant testified that he was 100% positive that this slide was not part of Donais’ fall 2010 Power Point presentation, and that the handling of money was not discussed at all in that pre-school year, all-faculty meeting. He explained, “I was directly responsible for handling money, so if money had been discussed, I would have remembered, it would have stuck out for me; money wasn’t discussed.” In contrast, his prior friend and co-worker Jean Torrisi testified that she never kept money collected for the W ashington D.C. trip locked in her closet, but rather had turned all cash into the office on a daily basis, “because we’d been told, that’s the way it has to be done.” Torrisi testified that the teachers had been so advised by the principal at the teacher orientation day. Torrisi was not aware of any teacher, except the grievant, who was keeping money in his closet or classroom.

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Soon after the students left the office, the grievant came in. In the presence of School Secretary Spiro, the grievant angrily stated, “This is ridiculous, I’ve done this for years, I’m not going to stop!” He then turned and marched out, slamming the door shut behind him, and took off toward his classroom. After he departed, Spiro commented, “You need to write him up. That was the rudest thing I’ve ever seen a teacher do, that was insubordination.” Donais waited for a few minutes, then went to the grievant’s classroom. He was still angry. Donais told the grievant, “There is a protocol, I want it followed.” The grievant replied, “I’ve done this for years, I’m not going to stop it.” And indeed, he continued thereafter to allow students to eat in his classroom. Moreover, on Fridays, he continued to order pizza for the JNHS students, and they continued to gather and eat the pizza in the grievant’s classroom. Donais did not impose any discipline upon the grievant at these times – notwithstanding the expression of dismay which had come from Secretary Spiro, and the grievant’s continued rejection of Donais’ directive about all eating to be in the cafeteria. One has to wonder if Donais was disinclined to impose any discipline upon the grievant because he had in August been generous in helping her get prepared for her first year as principal, and/or because of her newness in the role of principal. In any case, as will be further noted on a number of issues below, she did not take any formal disciplinary action on any grounds against the grievant until January 2011, when matters had escalated especially regarding fiscal matters. Also in mid-September, Donais noticed that the window into the grievant’s classroom had been frosted over. She learned that the grievant had asked the custodian to frost his classroom window, after the custodian (at Donais’ request) had frosted over the window on the door into the school’s conference room. Donais directed the custodian to remove the frosting off

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of the grievant’s classroom window, which he did. She spoke to the grievant, and told him that the windows on classroom doors are not to be covered. She presumed that was the end of the matter. However, a couple of weeks later, Donais saw that the window on Francescone’s classroom door was covered over with red construction paper. She removed the paper from the window, but she did not speak to Francescone about it.9 This is another instance, then, when Donais at the time could have formally disciplined the grievant for disobeying her instruction, but she refrained from imposing any formal discipline, and indeed did not even informally counsel the grievant at the time about this repeat rule infraction. Also in mid-September 2010, the first school dance was held – from 6 to 9 p.m. on Friday, September 17, in the gymnasium at the Whittier School. Tickets were sold by students during the preceding week, at $5 each. Tickets also were sold at the door, for $6 each, by Ms. Donais and Jean Torrisi. Tickets were not numbered. In addition to the proceeds from ticket sales, there also were refreshments (bottled water, Gatorade and candy bars) sold at a refreshment table, staffed by JNHS students, in the gym. A commercial disc jockey, Mr. Phillips, spun the tunes. Before the start of the September dance, Donais placed into a cash drawer $200 which would be used to make change at the refreshment table.10 At some point during the evening, Donais put the net proceeds from the front table ticket sales into a zipper back and placed it into the school safe in her office.
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The grievant acknowledged that after the frosting was removed, he did place cardboard over the window on his classroom door. He asserted, however, that this was done when M CAS testing was going on, and testing protocol called for the window to be covered at that time. Presumably Donais had a separate amount of starter money at the front desk for ticket sales, especially given the door ticket price of $6 per ticket.
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At the conclusion of the dance, Francescone asked Donais where the money from ticket sales was. She responded that it was in the safe. Francescone then explained that it was his practice to take all the money from both the ticket sales and refreshment table to his home, where he would count it. He further explained that the following Monday, he would bring to the principal the profits from the event. Donais suggested that the money be counted in school, either then or on Monday morning. The grievant responded that this was not the way he was used to doing it, but rather he had done the counting at home over a number of years. For whatever reason, Ms. Donais reluctantly agreed, and she gave to Francescone the money from the front table which she had secured in the office safe. No counting occurred before the money went home with the grievant, and the grievant did not at that time present to Donais any receipts for items purchased for the dance, so there was no way to confirm independently what the gross or net proceeds were from that September dance. On the following Monday, the grievant brought to Principal Donais $325 in cash. She asked, what had been done with the remainder of the money. The grievant explained that the remaining money – whatever that amount was – would be used to purchase items for the Junior National Honor Society. The second school dance was held in on Friday, October 22, with a Halloween theme. On the preceding Monday, October 18, the grievant spoke to Donais about the arrangements for the upcoming dance. Before the dance, Donais directed the grievant to pay the disc jockey, Mr. Phillips, by check, and to get a receipt. The grievant replied that Phillips only works for cash. The grievant never turned in any receipts from the D.J. He asserted that he was paying the D.J.

Haverhill Education Assoc. and Haverhill Sch. Comm., AAA# 11 390 01025 12 $350 in cash per dance.11

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Francescone in that same conversation further informed Donais that he was storing a “great deal” of cash in the locked closet in his classroom. That news was greatly troubling to Donais, since many people had keys that could open that closet. Also, of course, the fact of money being stored in his classroom closet was directly contrary to the school policy which Donais had announced at the all-faculty meeting prior to the start of the school year. She told the grievant that he was not supposed to have cash in his closet. The grievant replied that the money was locked, and under his control. Being concerned about the grievant’s October 18 statement about having large sums of cash in his classroom closet, Ms. Donais on Tuesday, October 19 had School Custodian Louis Gonzales accompany her to the grievant’s classroom. They unlocked the closet door, and found and together counted what indeed were large amounts of cash in that closet. All teachers have that same key. One blue lunch back labeled “lollipop money” contained $451.12 A second blue bag contained additional cash, and there also were some batches of coins and a small number of loose bills in the closet. All told, the amount of cash in the closet was slightly over $1,000.00. On Thursday, October 21, Principal Donais at her request met with Assistant Superintendent for Finance Kara Kosmes, and Donais reported that Francescone was keeping large amounts of money in the locked closet in his classroom. Kosmes confirmed that this was

After the grievant had been placed on administrative leave, the school continued to use Phillips as the D.J. for school dances. He accepted payment by check, in the amount of $213 per dance. Lollipop money was generated by students’ sales of lollipops either through the school store or in the cafeteria. Francescone would buy cases of lollipops at wholesale pricing, and students would sell them for $1 each. Francescone would pay the bill to the lollipop company from gross receipts from those retail sales. The profits were used to help finance the 8 th grade trip to W ashington D.C.
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contrary to school department policy; the fact that the closet was locked did not matter. They agreed that they should meet together with Francescone, to discuss this situation. That meeting was scheduled for the following Monday, October 25. In the meanwhile, for the October 22 dance, ticket and refreshment sales were handled in the same manner as at the September dance, with Torrisi and Donais staffing the ticket sales at the entrance door into the gym. Donais estimated that about 150 students attended the dance – the gym was jammed – but since tickets were not numbered, an exact count of tickets sold could not be made.13 After the dance, Francescone followed the same procedure of taking all the cash home, doing a count, and on Monday bringing to Donais the school’s “share” of the proceeds. Once again, Donais retrieved from the school safe the money which had been collected at the ticket sales table, and allowed Francescone to take all the money home to count it. On Monday, October 25, he turned in $365, the school’s “cut,” as Francescone called it. He told Donais that he kept the other half to cover JNHS induction costs. Donais expressed surprise at that; “Those are awfully expensive cakes,” she commented. On Monday, October 25, at about 1 p.m., Kosmes and Donais met with Francescone. The meeting proceeded in a cordial manner. Kosmes explained that she was concerned about any money being stored in his closet. She noted that such retention of cash in his closet was contrary to Haverhill School Department policies and procedures, and state law. She added, with remarkable prescience, “I don’t want you to be at risk of accusation....”14 She directed that all

The grievant after the dance opined that about 80 students had attended, an estimate that Donais characterized as “ridiculous.” If the grievant had taken Kosmes’ admonition to heart, perhaps the grievant would have avoided the predicament that he ended up finding himself in.
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student activity monies needed to be turned into the office and placed into the school safe on a daily basis. Money was not to be taken home, nor was it to be stored in the closet in his classroom. Francescone indicated that he liked to keep cash in his closet so that it would be readily available as necessary to promptly purchase supplies and make other necessary payments to support the various student activities (including the dances, school store, and lollipop sales) which he supervised. Kosmes responded that there were several ways in which the grievant could without delay make such expenditures, consistent with school department policies. When purchasing supplies at BJ’s or elsewhere, he could front the money and then present a receipt to Donais for immediate reimbursement. Or, Donais could give him a check in advance, in a known amount or all made out except as to the amount, and then he could bring back a receipt to Donais. Or, they could obtain a BJ’s credit card in the name of the Whittier School – which would generate receipts for all purchases. The bottom line, Assistant Superintendent Kosmes stated, was that “we need receipts” for all expenditures of student activity funds. The grievant appeared somewhat surprised by all the options Kosmes had laid out, and indicated that he would follow that process of turning in all cash on a daily basis, and following one of the discussed options that would generate receipts for all expenditures. Kosmes directed the grievant that she wanted all of the money currently in his closet removed, reconciled, and turned into the office with accounting “immediately.”15

Kosmes testified that her directive was to do so “immediately.” Donais gave slightly different testimony, that Kosmes directed the grievant, “Before you leave today, you shall turn into Ms. Donais all the money in your possession.” The grievant’s recollection on this point was consistent with that of Kosmes, and based on that common recollection, I have made my finding of fact on this narrow point based upon that common recollection of Kosmes and the grievant. In any case, the difference in meaning is a subtle one, at most.

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On the afternoon of October 25, Francescone turned no money into Donais, though she remained at the school until 5 p.m. that afternoon. On October 26, Kosmes and Donais spoke, and Donais informed Kosmes that the grievant had not turned in any funds. Kosmes advised Donais to tell the grievant, bring all the money from the closet today, which Donais did. The grievant on October 26 brought $300 to Donais, and stated that this was all the money he had in his closet. He stated that this $300 represented the profits from the school store since the start of school; he gave no further accounting. Donais was aware from her count on October 19, however, that there had been over $1,000 in the closet. She did not say as much to Francescone when he gave her the $300. Donais reported to Kosmes that the grievant had turned in $300, but that was not all the money in the closet. At Kosmes’ direction, Donais thereafter told the grievant that they were aware that he had not yet turned in all the money from his closet, and that he must do so. On or about November 5, he turned in $451 to Donais. He stated that this was all the money from his closet, including the lollipop money.16 Donais did not say to the grievant at that time, that she
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Regarding this $451, the grievant testified as follows. This was lollipop money, which was used to subsidize the cost of the W ashington D.C. trip. Accordingly, he wanted to check with the leadership of the PTO, specifically Christine Buco, to see if they wanted to take over the retention and safekeeping of these lollipop funds. He asked to Buco about this, but it took her “a few days” to check this issue out with the other leaders of the PTO group and get back to Francescone. Ultimately, Buco got back to the grievant and told him that the PTO did not want to take over the lollipop fundraising nor control of the money, and that he should keep control of it. So at that point, he turned in the $451 to Donais. Ms. Buco was called as a rebuttal witness, and testified as follows. She was vice president or secretary of the W hittier School PTO in the fall of 2010, when her children were attending that school. She also was employed as a paraprofessional at the W hittier, and she was aware of the lollipop fundraising that was going on. That lollipop fundraising had nothing to do with the PTO’s fundraising activities at the school. The grievant did not in October 2010, or at any other time, talk to her about the PTO taking over the lollipop sales and funds. Moreover, if he had done so, she would have had to raise that issue with the entire PTO assembly, in a meeting of the organization. It would have been an issue resolved by a group vote, recorded in the minutes. She before testifying reviewed all the fall 2010 minutes of the PTO, and found no reference to any discussion about the lollipop issue. [From her demeanor when testifying, and immediately thereafter, it was readily apparent that it saddened Ms. Buco greatly that Francescone had been terminated, and/or that she had been called to testify in a manner unhelpful to his defense.]

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knew that there had been over $1,000 in his closet – even before considering operating profits from the school store and lollipop sales over the past couple of weeks. Donais thereafter called and reported to Kosmes that the grievant at that point had given her the $300 plus the $451, but it was Donais’ belief that there was still more in the closet. Even as of November 5, some $250 still had not been turned into Donais. Upon receiving that report from Donais, Kosmes realized that she had to proceed with more formal action. She asked Donais to give to her documentation about all the funds that were in the closet, from what activities. She further directed Donais to go back to the grievant’s classroom closet, and confirm what was still there. Donais went back to the grievant’s classroom closet, and observed still more money in a blue lunch bag, plus some loose quarters and some loose dollar bills. That remaining cash that was still in the closet never was turned into the office.17 The next dance, and the final one that the grievant was involved with, was held on November 19. It was a “reunion” dance held for high school kids who had graduated from the Whittier School. It was a special fundraiser for the Adam Troy Scholarship Fund. Because attendees were graduates, there were very few advance ticket sales; most tickets were sold at the dance itself. Prior to the dance, Ms. Donais had urged the grievant to use numbered tickets so that there could be a better accounting of all tickets sold. However, the grievant resisted the idea, and un-numbered tickets again were sold. Mr. Francescone asked Ms. Donais for start up cash, in the

The grievant did later turn in a bag of change, which he said was from his desk. He testified that what was left in his closet was “a few one dollar bills for pizza Friday,” a cup of pennies he used when teaching about buoyancy, a roll of quarters he used when teaching about probability, and loose change in a blue bag which he had forgotten was there.

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amount of $200, to be placed in the cash drawer and available to make change at the refreshment table. Donais called Kosmes and asked if that was an appropriate cash kitty to set up for the refreshment table, and Kosmes replied that $200 was too much, but rather that $50 to $60 in smaller bills should suffice. Ms. Donais then responded to Francescone that $60 would suffice as the start up cash, and she provided him with 40 $1 bills and four $5 bills for the cash table cash drawer. After that exchange, Francescone told Donais that he was no longer going to be involved in organizing the school dances after this November 2010 event. He further stated that he cease being involved with the Junior National Honor Society, and in the supervision over the school store. He stated that if he could not be in charge of the money and “steer his own ship,” he did not want to be involved in any of these matters.18 Because the attendees at the November dance would be of high school rather than middle school age, and no longer directly subject to disciplinary control by Principal Donais, she arranged to have a Haverhill police officer, Bill Alvarado, on duty for security throughout the November dance. He was stationed at the front desk where tickets were being sold, and from where he could monitor the comings and goings of the attendees. Also stationed at the front door, and overseeing the cash drawer there, were Jennifer

At the arbitration hearing, the grievant testified as follows. At the end of the 2009-10 school year, he had told Principal Kitsos that it was his intention to step down as advisor to the JNHS and the school store, and as the organizer of the school dances. Thus, his implementation of that decision in mid-November was not, as Donais suggested, motivated by the fact that he could no longer be in charge of the money and “steer his own ship.” However, Kitsos when called as a rebuttal witness testified that she recalled no such discussion with the grievant in June 2010, nor did she recall trying to persuade him to stay on at least for the start of the next school year. Rather, she testified, she expected that in the next school year, under the principalship of Donais, the grievant would be continuing to serve in these various advisory/extracurricular roles.

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Torrisi, a teacher at the Whittier, and Ms. Donais, as well as Building Custodian Louis Gonzales. Ms. Torrisi and the grievant were good friends, both at work and outside of school. During the course of the dance, the grievant at one point brought to Torrisi a $10 bill, and obtained in exchange ten $1 bills that could be used in making change at the refreshment table. Other than that, Torrisi, Gonzales and Donais all testified, the grievant did not over the course of the evening deliver any other cash to any of them who were stationed at the front desk. Although the dance was continuing until 9 p.m., at about 8:30 p.m., Francescone came out to the front desk, and announced that he was leaving at that point, to go out for dinner with some of the high school students who had come to the dance. He handed to Donais the cash drawer from the refreshment table. He saluted toward Ms. Donais, and left. Donais glanced down at the contents of the cash drawer from the refreshment table, and noted that it appeared to contain only a small sum of money. She asked Police Officer Alvarado to accompany her to the office, where they together counted the cash that the grievant had delivered from the refreshment table. There was only $85 in the cash drawer. Since Donais had given the grievant a start up kitty of $60, that appeared to suggest that only $25 of refreshments had been sold to the roughly 150 youngsters who were attending the dance. That small amount of cash from the refreshment table troubled Ms. Donais, since in prior dances, the refreshment table had generated $200 to $300 in sales. To investigate further how many sales had in fact occurred at the refreshment table, she took a couple of steps after the dance had ended at 9 p.m. First, she had Custodian Gonzales, in the presence of Donais and Officer Alvarado, count the number of discarded water and Gatorade bottles that were in the trash barrels in the gym. Gonzales carefully counted out the discarded bottles, and found that 97

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bottles had been discarded.19 Then, Principal Donais went with Gonzales to the grievant’s classroom where the full, unsold bottles of water and Gatorade, and cartons of unsold candies, were stored, as another way to measure the gross sales that had been made at the refreshment table at the November 2010 dance. From that count, they were able to determine that 74 candy items had been sold, in addition to the 97 bottles of beverages. That meant that there should have been $171 in sales, which along with the $60 starting kitty should have resulted in $231 in the cash drawer when the grievant turned the drawer into Donais. Yet, there had been only $85 in the cash drawer which the grievant had turned in as he left. On Saturday, November 20, Donais called Assistant Superintendent Kosmes, and reported that it was her belief that the grievant had not turned in all the moneys which had been collected at the refreshment table at the dance on the preceding evening. Upon receiving that report from Donais, Kosmes called Superintendent Scully, and moved the matter to his level. On the following Monday, November 22, the grievant brought into Donais receipts from BJ’s in the amount of $279, for items which had been purchased for the refreshment table at the November dance, and asked for reimbursement. Donais responded, how could she do that when he had only turned in $25 in gross sales (plus the $60 start up kitty). The grievant replied that she was incorrect, he had in fact turned in much more than $85. They argued about the amount of cash he had turned in. Ms. Donais then stated that she knew exactly how much had been turned in, since she and Police Officer Alvarado had together counted it to be $85 in total.

Gonzales had set up the barrels in the gym just prior to the dance, so he knew that there were no empty water or Gatorade bottles in the barrels before the start of the dance. Donais did not have Gonzales try to count out the candy wrappers, since they were torn and sticky; counting them would have been inexact, and messy.

19

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Upon hearing that, the grievant paused and then stated, “Oh, that’s right, I kept a wad of cash.” Donais asked where that “wad of cash” was, and the grievant replied that he had given it to Torrisi.20 Later that day, the grievant returned and spoke further with Donais. He then indicated that his thinking that day was a little foggy because this was the one year anniversary of his grandmother passing away; he had been very close to her, and this weekend had been a hard one for Francescone. He stated that while he believed he had given the wad of bills to Torrisi, he was not sure about that. On the next day, Tuesday, November 23, the grievant came to see Donais once again. He stated at that time that he and his wife had talked it over, and had decided to treat as a donation the $279 which he had spent on supplies at BJ’s for the dance. So, he said, Donais should not reimburse him that $279, but rather should just treat it as a donation. In the meanwhile, because of rising concern that the grievant may have diverted school activity funds to his own use, the superintendent asked the Haverhill police to commence an investigation. On November 29, the grievant was directed to go, with a union representative, to the police station, at which time he was interviewed by Detective Benedetti. The grievant testified that as he understood it, the questioning was only about the funds that had been collected at the November 19 dance; and moreover, the police did not suggest that he personally was suspected of any theft of funds.21 The grievant testified that he offered to help in any way to sort

However, when asked by Donais on that Monday, and again in her testimony at the arbitration hearing, Torrisi flatly and certainly denied that the grievant had given her any cash on the evening of the November dance, other than the $10 bill which she received from him in exchange for ten $1 bills to be used in making change at the refreshment table. However, before the police commenced the interview, they gave the grievant a written printout of his Miranda rights, and he signed that he had received and understood those rights, but still was willing to answer questions without the assistance of counsel.
21

20

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On January 4, 2011, Superintendent Scully and Principal Donais met with Francescone, and placed him on administrative leave pending further investigation of possible misconduct. On the next day, January 5, 2011, the grievant received a “Summons to Defendant” from the Haverhill District Court, which listed four criminal charges against the grievant: three counts of larceny over $250, and one count of larceny under $250. That Summons directed the grievant to appear at an arraignment on January 19, 2011. The grievant continued to be held out of work on administrative leave pending the outcome of the criminal proceedings which had been initiated against him. Two counts of larceny over $250 were dismissed on motion in December 2011. Ultimately, a criminal trial was held on the two remaining criminal counts on March 21 and 22, 2012, more than a year after the grievant had been placed onto administrative leave. On March 22, 2012, the jury returned a verdict of not guilty on those two remaining counts. By letter dated March 28, 2012, Superintendent Scully notified the grievant “that it is my intention to terminate you....” The grounds for the intended termination were listed in a “Schedule A” which read in part as follows:

The grievant testified that on the day following this interview, he called Benedetti and told the detective that he had further receipts and a certain accounting records that would show the monies received and expended. According to the grievant, Benedetti replied that he would not be in, but he could drop this package of papers off with the officer at the front desk at the police station, which the grievant did. In contrast, Detective Benedetti testified as follows. No such conversation between the grievant and him occurred on November 30 or at any other time, and Benedetti never received the package which the grievant testified he had dropped off. In all his years on the police force, there never had been an instance when someone had dropped off a package at the front desk for Benedetti, but the package did not get delivered to the detective.

22

Haverhill Education Assoc. and Haverhill Sch. Comm., AAA# 11 390 01025 12 Insubordination: 1. Failure to obey directive of Principal ... to cease having students eat lunch in classrooms and order lunches from sub shops.... 2. Failure to obey directive of Principal ... to have the glass panel of his classroom door uncovered.... 3. Failure to obey directive of Principal Donais set forth during the first day of school meeting that no money was to be kept in any classroom closets – all money was to be turned into the office each day. 4. Failure to obey directive of Principal not to take students off school grounds without parental permission slips. 5. Failure to obey directive of Asst. Superintendent Kosmes to turn over all money in his closet by the end of the day on October 25th, 2010. Money was not turned in until October 26th and November 5th. 6. Failure to obey directive of Principal to obtain prior approval or permission from her for two orders of lollipops ... purchased on credit billed to the Whittier School from September through November 30, 2010. 7. Failure to obey directive of Principal to pay the DJ (Michael Phillips of American Entertainment) for dances on September 17 and October 22, 2010 with a school check and obtaining a receipt. DJ was paid in cash and no receipts were ever provided. 8. Failure to obey directive of Asst. Superintendent Kosmes on October 25th 2010 that dance money was to be turned over to the school office by 3 p.m. that day and placed in the school safe and deposited on the following Monday. Instead, he continued to hold dance money in his possession. Untruthfulness 1. Untruthful in stating that he gave Mrs. Torrisi cash from the refreshment table cash drawer at the school dance on November 19, 2010.

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Haverhill Education Assoc. and Haverhill Sch. Comm., AAA# 11 390 01025 12 2. Untruthful in stating to Principal Donais on October 26, 2010 that he was giving her all the money he had in his closet, namely $300, when in fact he still had $700 left in the closet. 3. Untruthful in stating to Principal Donais on November 5, 2010 that he was giving her all the money he had in his closet, namely $451, when in fact he still had $250 left in the closet. 4. Untruthful in misrepresenting the amount of student activity monies that were collected at the school dances, lollipop fund and school store from September through November 30, 2010. 5. Untruthful in misrepresenting the amount of student activity monies that were spent for supplies, materials or services for various school activities, such as National Honor Society, school dances, lollipop fund and the school store, from September through November 30, 2010. 6. Untruthful in misrepresenting to Principal Donais that he had permission slips from parents or guardians to take students off school grounds. He took students to BJs in September, 2010 and had no such permission slips. Incompetency 1. Failure to properly supervise the handling and collection of student activity monies (dances, lollipop fund and school store) from September through November 30, 2010. 2. Failure to properly collect and account for student activity monies (dances, lollipop fund and school store) from September through November 30, 2010. 3. Failure to properly follow procedures for the handling of student activity monies (dances, lollipop fund and school store) from September through November 30, 2010. Conduct Unbecoming a Teacher 1. Misappropriation of student activity funds from the ticket sales for the September 16 and 17, 2010 student dance ($322). 2. Misappropriation of student activity funds from the refreshment

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Haverhill Education Assoc. and Haverhill Sch. Comm., AAA# 11 390 01025 12 table proceeds of the September 16 and 17 student dance (Unknown amount). 3. Misappropriation of student activity funds from the ticket sales from the October 22, 2010 student dance ($365). 4. Misappropriation of student activity funds from the refreshment table proceeds of the October 22, 2010 student dance (Unknown amount). 5. Misappropriation of student activity funds from the refreshment table proceeds of the November 19, 2010 student dance ($154). 6. Misappropriation of student activity funds from the school store from September through November 30, 2010 ($2,800). 7. Misappropriation of student activity funds from the lollipop fund from September through November 30, 2010 ($2,128).

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A pre-termination meeting before Superintendent Scully was held on March 30, 2012, at which time the grievant was afforded the opportunity to present any defenses to the charges listed above. After that hearing, the superintendent by letter of April 11, 2012 terminated the employment of Mr. Francescone, effective immediately. By letter dated April 23, 2012, President Marc Harvey of the Haverhill Education Association timely grieved the termination of Mr. Francescone. That grievance remained unresolved through the lower steps of the grievance procedure, leading to this arbitration proceeding. DISCUSSION As noted in footnote one at the very beginning of this opinion, given the sharply divergent evidence regarding certain key facts in this case, it is necessary at the outset to determine the relative credibility of the grievant on the one hand, in comparison to the several witnesses called

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by the Employer who provided testimony which conflicted with that offered by the grievant. In these areas of evidentiary conflict, I have almost exclusively credited the testimony of the Employer’s witnesses, over the conflicting testimony offered by the grievant. I have done so for the following reasons. Were there to be only a single person who gave testimony contrary to that of the grievant, it could be a harder task to sort out which witness to credit. In such a case, the sole Employer witness could simply have mis-observed the event in question, or mis-remembered it, or could be flat-out lying. However, in many different important respects, the grievant’s testimony was directly contradicted, by a large number of different Employer witnesses. It is implausible that all these witnesses had mis-perceived or mis-remembered these various events in question, or worse, were conspiring to collectively lie so as to support the grievant’s termination. None of these witnesses started out with any animosity toward the grievant. On the contrary, Donais (like Kitsos before her) was deeply appreciative of the extra help that he offered to her as she started her principalship in the fall of 2010. Torrisi was a close friend of the grievant’s, both at work and in their families’ personal lives. Not one of these Employer witnesses, who testified from personal knowledge about the disputed facts in this case, harbored any animosity or other reason to lie in a manner that would support the termination of his employment. In the end, it is the collective weight of the testimony offered by Prior Principal Kitsos (as corroborated by the Power Point presentation she had showed), Principal Donais (similarly corroborated by her Power Point presentation), prior close friend and Co-Worker Torrisi, PTO Leader Christine Buco, Custodian Gonzales, and Police Detective Benedetti, which caused me to discredit the grievant’s testimony. All of those Employer witnesses offered first-hand testimony

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which contradicted the grievant on one key point or another. Their testimony was credible, and collectively caused me to base my findings of fact upon the testimony they gave, rather than that offered by the grievant. With those credibility findings in mind, it is helpful to continue the analysis of this case with some general comments. As to many if not all of the counts against Mr. Francescone, the Union repeatedly asserts that there was a notable lack of progressive discipline. The Union notes that amongst the various counts are many acts of supposed misconduct that occurred commencing in early September 2010, and that Principal Donais was fully aware of many of these events at the times they occurred. Yet, the Union emphasizes, no lower levels of formal discipline were applied, not once, until the grievant was placed on administrative leave in early January 2011, and ultimately terminated. The Union suggests that this total lack of progressive discipline is fatal to the Employer’s claim that it then acted with just cause when it then summarily terminated the employment of Mr. Francescone. The Union certainly is correct that the proper application of progressive discipline is a necessary prerequisite to termination of a long service employee, unless the termination is for a proven offense of such egregiousness as to warrant termination in the very first instance. Some of the allegations made by the Employer against Mr. Francescone involved alleged misconduct which one would expect to be addressed, in the first instance, by lower levels of progressive or corrective discipline, not summary termination. Examples that come to mind are the alleged offenses of allowing students to eat in his classroom, notwithstanding the principal’s directive that this practice cease; having the glass window pane on his classroom door covered over; keeping modest amounts of student activity funds locked in the closet in his classroom; or taking

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students off of school premises without producing permission slips. Of course the principal had every right to issue these instructions, but when and if violations occurred, then lower levels of progressive discipline could and should have been applied, before summarily terminating the grievant for these cited reasons. What happened instead was that events transpired which troubled Ms. Donais, but for whatever reason, she repeatedly failed to apply lower levels of progressive discipline that might well have helped Mr. Francescone appreciate the absolute necessity of conforming his behavior to the policies she had established. One has to wonder if Donais was disinclined to impose any discipline upon the grievant because he had in August been generous in helping her get prepared for her first year as principal, and/or because of her newness in the role of principal. In any case, she did not take any disciplinary action on any grounds against the grievant until January 2011, when matters had escalated especially regarding fiscal matters. To then cite this collection of relatively minor offenses which occurred months prior the grievant’s placement on administrative leave, as part of the rationale for summary termination, looks more like improper, “cumulative” discipline rather than the progressive discipline which is an integral part of the just cause standard. It is inconsistent with the concept of just cause to knowingly allow a bunch of lesser offenses over time to go undisciplined at a lower level, but then to add them all up and assert that as accumulated, they justify summary termination. That having been said, there are certain offenses which do warrant summary termination of employment without an initial application of progressive discipline. Theft or misappropriation of funds in any amount from one’s employer is one example of an offense which is generally recognized as warranting summary termination; in the case of teachers with professional teacher

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status regulated by M.G.L. c.71, §42, such proven misappropriation of funds would constitute “conduct unbecoming a teacher. “Insubordination” is another basis for termination under c.71,§42. In this case, some of the most serious allegations against Mr. Francescone involved misappropriation of student activity funds. Certain of these alleged acts of misappropriation of funds ultimately led to criminal prosecution for larceny. Quite clearly, if the grievant had been convicted of the criminal offense of larceny of student activity funds, that conviction would have provided more than ample justification for summary termination of Francescone’s employment. As the Union notes, though, the four criminal counts of larceny brought against Mr. Francescone either were dismissed on motion before trial, or he was found not guilty of larceny after a trial before a jury. Those dispositions in the criminal proceedings, the Union suggests, should have ended the inquiry, and the Employer thus lacked just cause to proceed with its action of terminating Mr. Francescone’s employment. However, the standard of proof applied in those criminal proceedings, proof beyond a reasonable doubt, is a significantly higher burden of proof than the one which the employer must meet in order to establish just cause for termination of the grievant’s employment. The findings of not guilty in the criminal proceedings, then, do not foreclose the Employer from seeking to prove by clear and convincing evidence that a misappropriation of funds occurred, thus establishing just cause for summary termination for that offense. Moreover, some of the more serious charges of misconduct cited as the reasons for termination in this case involve alleged misdeeds that are not criminal in nature, but if proven constitute disciplinary misconduct in the employment context. Insubordinate behavior toward a

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supervisor, incompetence, or conduct unbecoming a teacher might well not constitute criminal misconduct, but could provide grounds for discipline up to and including summary termination of employment if egregious in nature. For all these reasons, the fact that the criminal charges against Mr. Francescone were dismissed or resulted in jury findings of not guilty does not foreclose the Employer from arguing that it nonetheless had just cause within the meaning of M.G.L. c.71, §42 to terminate the grievant. In the final analysis, although the Employer alleged a wide variety of misdeeds by the grievant, it is only necessary to focus in on one factual area, since this one area alone establishes that the Employer acted with just cause within the meaning of M.G.L. c.71, §42, when it terminated the employment of Mr. Francescone. Regarding this one decisive area, the key, proven facts can be summarized as follows. In Principal Donais’ fall 2010, pre-school Power Point presentation to faculty, Principal Donais clearly informed and directed the staff, “All money must be turned into the office at the end of each school day. No money should be in classroom closets at any time (emphases added).” However, on October 18, Donais heard from Mr. Francescone that notwithstanding her directive to all staff, he was keeping large amounts of cash in the locked closet in her classroom. Later that day, Donais with Custodian Gonzales went to the grievant’s locked closet, opened it, and found just over $1,000 in cash stowed away there. Gravely concerned, she promptly conferred with Assistant Superintendent Kosmes. On Monday, October 25, at about 1 p.m., Kosmes and Donais met with Francescone. Kosmes explained that retention of cash in his closet was contrary to Haverhill School Department policies and procedures, and state law. She also warned the grievant, with

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remarkable prescience, “I don’t want you to be at risk of accusation....” She directed that all student activity monies needed to be turned into the office and placed into the school safe on a daily basis. Money was not to be taken home, nor was it to be stored in the closet in his classroom. Kosmes also clearly described various methods by which the grievant could still expeditiously expend school activity funds to carry out his ongoing advisory functions, but consistent with the absolute requirement that “we need receipts” for all expenditures of student activity funds. There is no doubt that the grievant understood that directive. Moreover, he understood, or certainly should have understood, the gravity of the directive, coming as it did from the assistant superintendent who had been called to this meeting at the Whittier School specifically to address this matter personally with him. He said that he would comply. The assistant superintendent further directed the grievant that she wanted all of the money currently in his closet removed, reconciled, and turned into the office with accounting “immediately.” The grievant, however, failed to comply with those clear directives. He did not turn in the money from his closet “immediately,” which in common usage would mean at once, that very afternoon. Only after a further demand, he on the next day turned in less than a third of the money which he had stored in his closet. Only after still another demand, he on or about November 5 turned in only another $451, still leaving about $250 in his closet (or unaccounted for).23

The Union argues that the grievant needed time to he needed time to do an accounting, so “immediately” meant, once he could find the time to complete the necessary accounting and paperwork. Of course, the money could have been counted and turned in that very afternoon – i.e., “immediately” within the normal meaning of that

23

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Nor did he turn in on a daily basis any of the cash which was coming into his hands every day from lollipop and school store operations. Rather than complying promptly and completely with the clear and forceful directives of the assistant superintendent, he continued to store student activity monies in his classroom closet, and perhaps elsewhere, but not in the school safe as he had been directed. Then, the last straw occurred on the night of the November 19, “Reunion Dance.” Rather than turn in all monies which had been collected at the refreshment table, the record evidence clearly and convincingly establishes that he took about $150 in cash from the refreshment table net sales, and walked out of the dance with that cash, announcing upon his exit that he was going out to eat with some of the graduates who had returned for the dance. Then, when questioned about that missing cash on Monday, he presented the following series of claims which he knew were not truthful: he had turned in far more than the $85 which Donais had stated (which testimony was rebutted by Donais, given that she and Officer Alvarado had counted the money together); he gave a wad of bills to Torrisi (which testimony she convincingly rebutted); or, he from time to time brought money from the refreshment table and put it into the cash tray at the front table where tickets had been sold (which testimony was convincingly rebutted by Torrisi, Donais and Gonzales). One can only speculate what the grievant did with the missing $150. Did he feel it was within his rights to use some of the proceeds of the reunion dance to treat some of the returning

word – and then he would have worked on back-up accounting after the fact. He did not need to sit on the cash, contrary to the assistant superintendent’s directive, in order to complete any accounting that he intended to produce. Moreover, even when he did belatedly turn in cash, no accounting came with it. He only turned in the $300, then about a week later, another $451. Since he gave no accounting, even then, needed time for accounting obviously was not the reason for his substantial delay in complying (only partially) with Kosmes’ directive.

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graduates to a bite to eat?24 It does seem that Mr. Francescone felt it was his within his sole discretion to expend student activity funds in whatever way he deemed appropriate, without any documentation or accounting to anyone. If that is what happened, he unquestionably violated the firm and clear directives which he had received from Assistant Superintendent Kosmes, that the grievant was to turn in all student activity funds on a daily basis, and provide receipts for all expenditures of such funds. Regardless of what he did with the missing $150, then, at a minimum, he was grossly insubordinate in his mishandling of the monies from the refreshment table on that evening of November 19. Moreover, his mishandling of those missing monies, and then his lying to Donais and others about what he did with that cash, compels the additional conclusion that the grievant misappropriated those funds, which constituted conduct unbecoming a teacher. It is bitterly ironic that the very blunt warning which Assistant Superintendent Kosmes so forcefully voiced to Mr. Francescone at the meeting of October 25 – and which he brazenly ignored – turned out to be exactly what transpired. The grievant failed to comply with the clear directives to turn in all student activity funds in his possession each and every day, and to follow procedures to assure receipts and the ability to track all expenditures of such student activity funds. The result, just as Kosmes warned, was that he put himself at risk of accusation, and that risk in fact came to harsh fruition when criminal charges were filed against him and he had to go through a criminal trial. Moreover, it was not just he himself who was placed at risk; the Whittier School and the Haverhill Public Schools collectively were placed at risk as well – at risk of being dragged through a senseless scandal about financial mis-management. It matters
24

The grievant, however, never has acknowledged as much.

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little that the criminal charges filed against the grievant ultimately resulted in not guilty findings; the damage to the Haverhill Public Schools was not avoided by the fact of that disposition of the criminal charges against Mr. Francescone. The Union strenuously argued that there was in this case a total absence of progressive discipline. However, in the case of egregious insubordination and misappropriation of student activity funds as occurred here, after and notwithstanding the clear and forceful directives from Assistant Superintendent Kosmes; and then followed by dishonesty as the school administration tried to learn what had in fact transpired; the Employer was justified in moving directly to termination of employment, without any progressive discipline. Moreover, given these facts, the best interests of the pupils in the school district were properly served by the summary termination of the grievant’s employment, notwithstanding his many years of service to the Haverhill Public Schools. The Employer based its termination action upon many other allegations as well, some quite serious such as alleged misappropriation of quite substantial sums of monies generated in such school activities as the school store and the lollipop sales program. It is not necessary to address these various claims and allegations, since the facts as discussed above clearly and convincingly establish that the Employer acted with just cause within the meaning of M.G.L. c. 71, §42 when it terminated the employment of Daniel Francescone. Accordingly, the grievance brought by the Haverhill Education Association on Mr. Francescone’s behalf is denied.
ArddecCD:HaverhillPS&Francescone102512Dec.wpd

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