|
COURT OF APPEALS DECISION DATED AND RELEASED June 22, 1995 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1027
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
REGINALD D. PHILLIPS,
Petitioner-Appellant,
v.
DEPARTMENT OF PUBLIC
INSTRUCTION,
Respondent-Respondent.
APPEAL from a judgment
of the circuit court for Dane County:
MARK A. FRANKEL, Judge. Affirmed.
Before Gartzke, P.J.,
Dykman and Sundby, JJ.
PER
CURIAM. Reginald D. Phillips's teaching licenses
were revoked by the State Superintendent of Public Instruction (SPI). Phillips appeals from a trial court judgment
denying his motion to remand the case for further administrative proceedings,
and affirming the license revocations.
Phillips argues that the trial court erred in ruling that no material
error in procedure occurred during the administrative proceeding, that the
admission of "highly unreliable and prejudicial evidence" impaired
the administrative hearing, and that the court erred in failing to view a
videotape generated during the hearing which, Phillips alleges, demonstrates
that the hearing examiner distorted the evidence of witness Jeanne
Yunowich. For the reasons set forth
below, we affirm.
In December 1990, school
authorities in Niagara began to investigate whether Phillips had sexual contact
with his female students. In March
1991, Phillips was suspended. In
January 1992, SPI filed a Notice of Probable Cause and Intent to Revoke
License. SPI alleged Phillips violated
§ 115.31, Stats.,[1]
and Wis. Adm. Code § Pi 3.04[2]
in seventeen counts of immoral conduct by inappropriately touching female
students. As the result of a five-day
administrative hearing conducted in April 1992, the hearing examiner proposed
that SPI revoke Phillips's licenses to teach.
SPI affirmed and made the decision final, effective July 17, 1992. Phillips filed a ch. 227, Stats., appeal to the trial court.
STANDARD OF REVIEW
Under § 227.57(6), Stats., if the agency's action depends
on any fact found by the agency in a contested case hearing, a reviewing court
shall not substitute its judgment for that of the agency as to the weight of
the evidence on any disputed fact.
However, the reviewing court shall set aside the agency action, or
remand the case to the agency if the court finds that the agency's action
depends on a finding of fact not supported by substantial evidence in the
record. Id. Wis.
Adm. Code § Pi
3.04(2)(a) provides for revocation on immoral conduct grounds if there is clear
and convincing evidence that the person whose license is sought to be revoked
engaged in immoral conduct and there is a nexus between the immoral conduct and
the health, welfare, safety or education of any student.
ANALYSIS
Phillips attacks certain
portions of the evidence as unfairly prejudicial. He argues that the hearing examiner distorted Yunowich's
testimony, that the examiner granted improper weight to SPI's psychological
expert's testimony, and that the testimony of Christine Cazzola was improper
because it was too remote in time as the incident upon which the testimony was
based occurred approximately twenty years before this case.
However, Phillips does
not attack other findings of fact which, standing alone, are sufficient to
support the license revocations. For
example, there was uncontradicted evidence that Phillips touched the breast or brassiere
strap of Melissa Johnson, Jessica Smith, Angela Morrison, Elissa Van Pembrook
and Jennifer Champeau.
Phillips argues that
some or all of this touching was inadvertent or incidental to teaching driving
or industrial arts classes. However, as
set forth in the standard of review above, the hearing examiner determines the
weight to give contested testimony, and we may not substitute our judgment
unless there is no substantial evidence
to support the findings. Here, there
was substantial evidence by the other students as to the duration of the
touches (some as long as thirty seconds) and the fact that Phillips maintained
the touch when the students tried to withdraw.
Because this evidence of
sexual contact with five students, all under the age of seventeen, is
sufficient to sustain the revocations,[3]
we need not consider whether the hearing examiner gave improper weight to SPI's
expert witness,[4] whether the
testimony of Cazzola was too remote to be accepted,[5]
or whether the hearing examiner distorted testimony by Yunowich. See Sweet v. Berge, 113 Wis.2d
61, 67, 334 N.W.2d 559, 562 (Ct. App. 1983) (this court need not address other
issues when one is dispositive of the appeal).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Section
115.31(2), Stats., reads in
relevant portion as follows:
"[A]fter written notice of the charges and of an opportunity for
defense, any license granted by the state superintendent may be revoked by the
state superintendent for incompetency or immoral conduct on the part of the
licensee."
"`Immoral conduct' means conduct or behavior that is contrary to commonly accepted moral or ethical standards and that endangers the health, safety, welfare or education of any pupil." Section 115.31(1)(c), Stats.
[2] Wis. Adm. Code § Pi 3.04(1)(a) reads as follows: "`Immoral conduct' means conduct or behavior which is contrary to commonly accepted moral or ethical standards." Wis. Adm. Code § Pi 3.04(2) reads in part as follows: "[T]he state superintendent may revoke any license issued by the department for incompetency or immoral conduct on the part of the holder."
[3] As the hearing examiner noted, Phillips's behavior with each individual student was part of a "mosaic" of behavior, and the "numbers of ... intentional contacts with the intimate parts of female students" was the actual basis for revoking the licenses. Under this analysis, the undisputed evidence by the students is a sufficient basis for the exercise of the agency's discretion. Cf. § 227.57(8), Stats. (reviewing court is not to substitute its discretion for that of the agency's).