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View Case Details
 
Ronald Gedney
vs.
Groton Board of Education
 
Case:
CV 93 052 67 23
 
Location:
SUPERIOR COURT OF CONNECTICUT JUDICIAL DISTRICT OF NEW LONDON AT NEW LONDON
 
Date:
September 4 1996 Decided
 
Court:
Parker J.
 
Author:
The Hon Justice Parker
 

Plaintiff Ronald Gedney was a tenured fourth grade teacher at the Mary Morrisson School in Groton. On April 7 1993 the defendant Board of Education voted to terminate his eighteen year employment for "moral misconduct" and "other due and sufficient cause."

In this appeal plaintiff challenges the propriety of his termination.

In October 1991 plaintiff was arrested in Groton for possession of cocaine and use and possession of drug paraphernalia. Cocaine possession is a felony. Severe penalties are prescribed. For a first offense any person . . . may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned. C.G.S. 21a-279a. Possession of drug paraphernalia is a misdemeanor. C.G.S. 21a-267. Such an offense carries a possible penalty of three months imprisonment and a fine of five hundred dollars. C.G.S. 53a-36 53a-42 and 53a-28. Had plaintiff been convicted of both charges he faced a possible 7 1/4 years in prison and fines up to $50 500.

Plaintiff was not convicted. In the criminal court he was permitted to take advantage of the Pretrial Program For Accelerated Rehabilitation. See C.G.S. 54-56e.

In November 1991 acting pursuant to C.G.S. 10-151 the defendant board notified plaintiff it was considering terminating him. At his request a written statement of the reasons for termination was given to the plaintiff. The reason for consideration of termination of Mr. Gedney's employment is (a) moral misconduct and/or (b) other due and sufficient cause. Letter dated November 20 1991 James E. Mitchell Acting Superintendent to William J. Dolan Esq. plaintiff's Counsel. Later the board elaborated:

The reason the administration is considering termination of Mr. Gedney's employment is (a) moral misconduct and/or (b) other due and sufficient cause. More particularly but without limitation the administration charges that Mr. Gedney on or about October 4 1991 in the Town of Groton possessed and/or exercised dominion and control over a narcotic substance and/or had knowledge of its presence and narcotic character and/or used or possessed with intent to use drug paraphernalia and/or was involved in conduct proscribed by C.G.S. Sections 21a-279(a) and 21a-267. The above referenced actions seriously compromise Mr. Gedney's effectiveness as a role model and employee of the Groton Board of Education. Letter dated January 21 1992 Harry E. Calmar Esq. Counsel for the School Administration to William J. Dolan Esq. plaintiff's Counsel.

Statute prescribes the reasons for which a tenured teacher's employment may be terminated. C.G.S. 10-151(d). "Moral misconduct" and "other due and sufficient cause" are among the reasons for termination. C.G.S. 10-151(d)(3) and (6). Mr. Gedney requested a hearing before a single impartial hearing officer. A hearing officer was selected. The hearing took place on eight separate days February 4 25 27 March 10 17 April 23 May 11 and 12 1992. On April 5 1993 the Hearing Officer filed extensive findings and a recommendation. Since the Hearing Officer's findings of fact are central to at least parts of the decision herein they are set forth verbatim:

1. Ronald Gedney is a tenured teacher with 18 years experience in the Groton Public Schools.

2. Mr. Gedney earned a Bachelor's Degree at Nathaniel Hawthorne College in 1970.

3. Mr. Gedney earned a Master's Degree at Eastern Connecticut State Teachers' College in 1979 or 1980.

4. Mr. Gedney's present teaching assignment is 4th grade at Mary Morrisson School.

5. Teachers are authority figures behavior examples exemplars and role models for the students they teach.

6. That Mr. Gedney is and at all times relevant was aware that a teacher's actions are subject to great scrutiny because of the teacher's special position and profession.

7. That in 1986 as a result of community concern regarding drug use and alcohol abuse the Groton Board of Education implemented a drug curriculum known as "Here's Looking At You 2000."

8. That the "Here's Looking At You 2000" drug curriculum advocates a no use drug and alcohol policy.

9. That the Respondent as a full time teacher was trained in and assisted in the education of elementary students in accordance with the curriculum.

10. That the "Here's Looking At You 2000" program begins at the kindergarten grade level.

11. That the curriculum is buily (sp) around three components: providing information developing social skills and promoting bonds with institutions and prosocial peers.

12. That the information portion of the program teaches students how drugs affect the human body and how they affect developing young people.

13. That the social skills portion involves role play activity where the children are given a model in an effort to help them deal with peer pressure regarding drug use.

14. That the third portion of the program involves bonding with themselves and others in an effort to teach them respect and tolerance for other people.

15. The curriculum also describes four (4) stages of chemical dependency.

16. The last stage is the recovery stage.

17. One of the elements of the recovery stage according to the Board's curriculum is "returning to home and school or job."

18. Another element of the recovery stage according to the Board's curriculum is "increased trust of teachers or employers."

19. An objective of the curriculum is to help students recognize that chemical dependency is a fact of life but that "things can get better."

20. That it is the goal of the program to project a clear and consistent message to students.

21. That teachers if asked questions regarding prior drug use are advised that because the role of a teacher is to be a model to the student it is the teacher's dominant responsibility to not acknowledge any prior use.

22. That "Here's Looking at You 2000" specifically avoids all mention of previous drug use or addiction in an effort to prevent children from developing the idea that they can experiment with drugs and not suffer repercussions.

23. That using recovering alcoholics and/or addicts to educate students on the hazards of drug use is inappropriate at the elementary level.

24. The Groton Board of Education has adopted a drug free workplace policy for students and employees.

25. The student policy specifies that assistance in obtaining treatment is available through the school system.

26. The student policy provides for rehabilitation.

27. The employee policy promotes an alcohol and drug free school environment.

28. Employees are required by the policy to inform the Groton Board of Education of "any criminal drug statutes conviction."

29. Under its employee policy one of the Board's options for dealing with an employee who has been convicted of a criminal drug statute violation is to require the employee to participate in a drug abuse assistance or rehabilitation program.

30. The employee policy requires the Groton Board of Education to provide a drug-free awareness program which includes an obligation to inform employees about the "availability of drug Counseling and rehabilitation programs."

31. Employees who may have substance abuse problems are provided by the Board of Education with a list of treatment centers for their use.

32. That on or about October 4 1991 in the Town of Groton Mr. Gedney was arrested for possession of cocaine which is an unenumerated felony pursuant to Connecticut General Statutes Sec. 21a-279(a) and use and possession of drug paraphernalia which is a Class C misdemeanor pursuant to Sec. 21-267.

33. That on or about October 4 1991 in the Town of Groton Mr. Fedney (sp) possessed and/or had knowledge of its presence and narcotic character.

34. That on or about October 4 1991 in the Town of Groton Mr. Fedney (sp) used or possessed with intent to use drug paraphernalia.

35. That on or about October 4 1991 in the Town of Groton Mr. Gedney engaged in conduct proscribed by Connecticut General Statute Sec. 21a-279(a).

36. That on or about October 4 1991 in the Town of Groton Mr. Gedney engaged in conduct proscribed by Connecticut General Statute Sec. 21a-267.

37. That Mr. Gedney admits that on or about October 4 1991 in the Town of Groton he possessed and/or exercised dominion and control over a narcotic substance and/or had knowledge of its presence and narcotic character.

38. That Mr. Gedney admits that on or about October 4 1991 in the Town of Groton he used or possessed with intent to use drug paraphernalia.

39. That at all times herein relevant Mr. Gedney knew or should have known that possession and/or use of narcotic substances would jeopardize his position as an employee of the Groton Board of Education.

40. That Mr. Gedney's arrest was reported in three newspaper articles in the New London Day and discussed on one radio program.

41. That Mr. Gedney's arrest and conduct leading to his arrest was known and discussed within his employment environment including but not limited to his colleagues his students and their parents.

42. That Mr. Gedney's students observed by a health teacher on the Monday following the incident reported feeling disappointed angry mad bad frustrated scared and confused.

43. By letter dated November 13 1991 the Groton Board of Education through its Acting Superintendent of Schools James Mitchell informed Mr. Gedney that his contract of employment was under consideration for termination.

44. By letter dated November 18 1991 Mr. Gedney through his Counsel requested a statement of reasons for the termination.

45. By letter dated November 20 1991 the Acting Superintendent responded stating the reasons to be: 1) moral misconduct and 2) other due and sufficient cause.

46. By letter dated November 22 1991 Mr. Gedney through his Counsel requested a more specific statement of the reasons.

47. By letter dated November 27 1991 Mr. Gedney requested a hearing before a single impartial hearing officer and waived the statutory time limit for commencement of the hearing.

48. By letter dated December 12 1991 the Counsel for the Board of Education agreed to a single hearing officer and waiver of the time limits based upon the mutual selection of Peter Blum Esq. as hearing officer.

49. By letter dated January 8 1992 Mr. Gedney through his Counsel made a second request for a more specific statement of the reasons a list of witnesses statements and documentary evidence.

50. By letter dated January 21 1992 the Counsel for the School Administration responded by stating the reasons to be: 1) moral misconduct and 2) other due and sufficient cause. More specifically such letter stated that Mr. Gedney's actions on or about October 4 1991 "seriously compromise Mr. Gedney's effectiveness as a role model and an employee of the Groton Board of Education."

51. The "actions" of Mr. Gedney referred to in the preceding finding are that he: 1) possessed and/or exercised dominion and control over a narcotic substance 2) had knowledge of its presence and narcotic character 3) used or possessed with intent to use drug paraphernalia and 4) was involved in conduct proscribed by C.G.S. Sections 21a-279(a) and 21a-267.

52. An actively addicted person has a compulsion to engage in the use of the addictive substance whether it is alcohol or cocaine.

53. Mr. Gedney admits to abuse of alcohol.

54. Mr. Gedney never possessed nor used alcohol in school nor did he even come to school intoxicated.

55. Mr. Gedney admits to abuse of cocaine.

56. Mr. Gedney never possessed nor used cocaine in school nor did he ever come to school under the influence of cocaine.

57. Mr. Gedney is a recovering alcoholic.

58. Mr. Gedney is a recovering cocaine addict.

59. Since his arrest on October 4 1991 Mr. Gedney has remained continuously sober and drug-free.

60. Mr. Gedney's use of cocaine was compulsive behavior related to his addiction.

61. Mr. Gedney is committed to recovery.

62. Mr. Gedney's behavior is consistent with that of substance abusers who do not relapse providing he continues his same behavior.

63. The School Administration stipulated that because the Groton Board of Education receives federal funds the Board as an employer is covered by the Rehabilitation Act.

64. Following an arrest for drunken driving that was reported in the press a school principal was reinstated to his position by the Board of Education.

65. Another Groton school administrator who had a known alcohol problem was continued in employment after he stopped drinking.

66. Mr. Gedney can perform the essential elements of the job of elementary school teacher despite his handicap.

a. According to the Acting Superintendent Mr. Gedney is "technically . . .probably still qualified to teach" and his eventual return to teaching in Groton is "something that obviously can be considered."

b. According to a teacher-colleague Mr. Gedney's reputation is that he was a fine teacher, and that we think he would be a fine teacher.

c. According to a teacher-colleague Mr. Gedney "is an asset to our school and to our grade level in particular."

d. According to a teacher-colleague Mr. Gedney "is an excellent teacher and colleague."

e. According to Mr. Gedney's Assistant Principal Mr. Gedney "has been a fine role model all along. I think that he can be that role model he once was."

f. According to a teacher-colleague Mr. Gedney "is a very good teacher."

g. According to another teacher-colleague Mr. Gedney has "a good reputation as being a good teacher."

h. According to another teacher-colleague Mr. Gedney "is still held in high esteem. He was as you know always a dedicated teacher."

i. According to another teacher-colleague Mr. Gedney "has always been considered an excellent teacher and well-respected by faculty and loved and respected by children."

j. According to another teacher-colleague Mr. Gedney "has been known to be a good teacher and a good friend and a good organizer."

k. According to another teacher-colleague Mr. Gedney "is a good teacher. He does a lot for the school. He does a lot of extras for the school and for the children."

l. According to Mr. Gedney's former Assistant Principal Mr. Gedney was "excellent as far as classroom teaching goes and I would appreciate that that would be the way he is now."

m. According to another teacher-colleague Mr. Gedney "is a valued member of the staff."

n. According to Mr. Gedney's former Principal Mr. Gedney was "a very good teacher."

o. According to an administrator who is a former Assistant Superintendent and a former Principal of Mr. Gedney's Mr. Gedney's reputation "hasn't changed any. . . it is good."

67. The Principal of Pleasant Valley Elementary School would be "happy to have" Mr. Gedney assigned to his school if he has successfully completed a rehabilitation program "Because he was a very good teacher. He had a good way with the children. The children liked him. And he had a lot of spirit . . ."

68. The Assistant Principal of Eastern Point Elementary School "wouldn't have a problem" with Mr. Gedney's assignment to his school.

69. The Assistant Principal of Mary Morrisson Elementary School would not be reluctant to see Mr. Gedney return to teach at the school because he thinks that Mr. Gedney "can be that role model he once was as long as he stays in the rehabilitation program."

70. The former Assistant Superintendent and Principal of Mary Morrisson Elementary School does not have any reluctance about seeing Mr. Gedney return to teaching in the elementary level in Groton.

71. Mr. Gedney requested and was granted Accelerated Rehabilitation (AR) in connection with his October 4 1991 arrest.

72. In ruling on Mr. Gedney's AR application Court urged that Mr. Gedney be allowed to continue teaching.

73. Accelerated Rehabilitation is a pretrial probation program for persons who have been "accused of a crime . . . not of a serious nature" and who have "no previous . . . record of conviction of a crime . . ."

74. Upon satisfactory completion of the terms and conditions of the AR probationary period the defendant may apply for dismissal of the charges and Court shall dismiss those charges.

75. The terms and conditions of the two-year AR probationary period are:

1. to follow recommendations of the Office of Adult probation including but not limited to those regarding evaluation treatment Counseling and monitoring.

2. to attend a minimum of four AA of N.A. meetings per week.

3. to complete 100 hours of community service in the first year of probation.

Findings and Recommendations April 5 1995 pp. 8-17.

The Hearing Officer specifically found that the Administration has proven by a preponderance of the evidence received the statutory reasons for termination of a contract of employment of moral misconduct and other due and sufficient cause. Hearing Officer's Findings and Recommendations April 5 1993 p. 22.

The Hearing Officer believed there was also "substantive mitigating evidence." Hearing Officer's Findings and Recommendations April 5 1993 p. 22. The Hearing Officer therefore recommended that plaintiff not be terminated but returned to employment at the start of the 1993-94 school year. Hearing Officer's Findings and Recommendations April 5 1993 p. 24.

On April 7 1993 the defendant board accepted the Hearing Officer's findings; it did not accept or follow his recommendation. The board voted 6-0 two members abstaining to terminate plaintiff's employment "due to his moral misconduct and for other due and sufficient cause." Minutes of Meeting Groton Board of Education April 7 1993 p. 2.

By letter dated April 12 1993 the defendant informed Gedney of his termination. It stated: "The reasons for the termination of your teaching contract are moral misconduct and other due and sufficient cause." Regarding moral misconduct, the letter elaborated:

Of particular concern to the Board were those findings of fact of Hearing Officer Blum in which a determination was made that on or about October 4 1991 you possessed and/or exercised dominion and control over a narcotic substance and/or had knowledge of its presence and narcotic character and that on that date in the Town of Groton you used or possessed drug paraphernalia . . . The Board accepted the findings of Hearing Officer Blum and on the basis of the above referenced findings determined that your behavior on October 4 1991 constitutes moral misconduct." Letter dated April 12 1993 from Mary G. Keith Chairman Groton Board of Education to Ronald M. Gedney Record Item # ???.

The April 12 1993 termination letter also stated:

A second and distinctly separate reason for terminating your employment contract is referred to in the Teacher Tenure Act (C.G.S. 10-151) as "other due and sufficient cause." [Sic] In this case other due and sufficient cause for termination concerns the impact of your misconduct on your ability to serve as an appropriate role model for elementary age students and to serve otherwise as a teacher in the Groton School System. The conclusion of the Groton Board of Education that your contract of employment must be terminated for other due and sufficient cause arises from Findings no. 5 through 10 inclusive 21 through 24 inclusive and no. 27 of the Hearing Officer's report. In your role as a fourth grade teacher you are an authority figure behavior example exemplar and role model for the students you teach. You were at all relevant times aware that your reactions were subject to greater scrutiny than those of non-teachers because of your special position and profession. You are familiar with and were responsible for teaching the "Here's Looking at You 2000" drug curriculum which advocates a 'no use' drug and alcohol policy. In your role as a model to students you were advised as a part of the 'Here's Looking At You 2000' curriculum to deny any prior drug use if asked by students. The curriculum specifically avoids all mention of previous drug use or addiction in an effort to prevent children from developing the idea that they can experiment with drugs and not suffer repercussions.

It was found by the hearing officer and by the Board that using recovering alcoholics and/or addicts to educate students on the hazards of drug use is inappropriate at the elementary school grade level. Unfortunately the notoriety resulting from your conduct on October 4 1991 when you possessed a controlled substance and related paraphernalia has profoundly diminished your ability to effectively discharge your duties as a fourth grade teacher. The Board has concluded that you cannot serve as an appropriate role model for elementary school age children and that you cannot credibly perform that essential function of your job which includes instruction in the 'no use' drug and alcohol policy. Your inability to perform that essential function constitutes other due and sufficient for termination of your teaching contract." Letter dated April 12 1993 from Mary G. Keith Chairman Groton Board of Education to Ronald M. Gedney.

This appeal followed.

In this appeal plaintiff claims:

  1. The decision of defendant Board terminating plaintiff's contract of employment was:
  2. a. clearly erroneous in view of the reliable probative and substantial evidence on the whole record;

b. arbitrary and capricious;

c. in violation of the federal "Rehabilitation Act of 1973;"

d. in violation of Connecticut General Statutes 10-151(d)(3) and (6);

e. in violation of the Connecticut Constitution Amendment XXI.

f. affected by other error of law; and

h. made in bad faith.

Substitute Complaint June 29 1993 p. 3. [106]

In his brief plaintiff has only argued that his termination violated his rights under the federal Rehabilitation Act of 1973 and Amendment XXI of the Connecticut Constitution. Plaintiff's Brief September 29 1993. [110]

There is no question that plaintiff was aggrieved by the termination. The Board has admitted this. Substitute Complaint 10 Answer 10. [106 108] Court finds that the plaintiff is aggrieved.

I

The plaintiff has not argued or articulated either in his brief or at oral argument any impropriety in his termination under C.G.S. 10-151(d)(3) and (6). Since plaintiff has not briefed any claims regarding his termination under C.G.S. 10-151(d)(3) and (6) they are deemed abandoned and not part of the appeal. The defendant Board of Education's action terminating plaintiff vis-a-vis C.G.S. 10-151(d)(3) and (6) is unchallenged. Court interprets this as plaintiff's concession that his termination complied with and was in accord with that statute.

Plaintiff's not challenging the defendant's action taken pursuant C.G.S. 10-151(d) implicates this court's jurisdiction. The statutory authorization for appeal is C.G.S. 10-151(f).

Any teacher aggrieved by the decision of a board of education after a hearing as provided in subsection (d) of this section may appeal therefrom within thirty days of such decision to the superior court. C.G.S. 10-151(f).

Since issues other than those arising under 10-151(d) were properly considered during the hearing and are subsumed in the decision of the board Court holds that it has jurisdiction even though the board's action taken on 10-151(d) issues is not being appealed.

Court feels it necessary to review and address the defendant's action taken pursuant to C.G.S. 10-151(d) since it (1) is a claim made in his appeal although not briefed (2) is the essential jurisdictional base for Court's consideration of his claims and (3) the board terminated him acting pursuant to C.G.S. 10-151(d). Moreover the board's findings of "moral misconduct and other due and sufficient cause" pursuant to 10-151(d)(3) and (6) are material to the issues actually pursued by plaintiff in this appeal.

The Hearing Officer found that the Administration has proven by a preponderance of the evidence received the statutory reasons for termination of a contract of employment of moral misconduct and other due and sufficient cause. Hearing Officer's Findings and Recommendations April 5 1993 p. 22.

Addressing the finding of "moral misconduct C.G.S. 10-151(d)(3), the plaintiff admitted conduct, the possession of cocaine, which constituted a violation of C.G.S. 21a-279a. Hearing Officer's Findings and Recommendations, April 5, 1993, s 37, 38 and 51; pp. 11 and 13. Plaintiff concedes that his not being convicted of the crime of possession of cocaine, makes no real difference. Transcript of court proceedings, 8/17/95, p. 14. Section 21a-279a, which criminalizes the possession of cocaine, is an unclassified felony carrying a maximum penalty of seven years incarceration. The Hearing Officer and the defendant board held that this established moral misconduct."

This is consistent with established law. In Rado v. Board of Education 216 Conn. 541 (1990) plaintiff a tenured high school teacher had been acquitted of three counts of the crime of eavesdropping C.G.S. 53a-189 a Class D 5-year felony. These charges were based upon allegations that the plaintiff had intercepted telephone calls involving other personnel at the high school. Rado 545. Although the plaintiff there had been acquitted of the criminal charges the impartial hearing panel found plaintiff [Rado] had intentionally tampered with the school telephone system. Rado 552. In its statement of reasons for termination as required by C.G.S. 10-151(d) the defendant board of education stated "that the plaintiff had obtained a recording of a teacher at the high school had intercepted private telephone conversations at the high school and had disclosed the contents of these conversations to others." [Footnote omitted.] Rado 545-6. The impartial hearing panel found "that the plaintiff had intentionally tampered with the telephone system for the purpose of overhearing conversations of others using the school telephones." Rado 549.

The Supreme Court discussed whether plaintiff's [Rado's] conduct which constitutes a Class D felony was "moral misconduct."

We have not previously defined 'moral misconduct' for the purpose of 10-151(d) nor do we find it necessary in this case to essay a comprehensive definition of that term. The finding of the panel that the plaintiff had tampered with the school telephone system for the purpose of overhearing conversations of other persons involves conduct proscribed by 53a-189 which makes such eavesdropping a class D felony. A legislative determination that certain conduct should be punished as a crime is highly significant in deciding whether it constitutes 'moral misconduct.' The conclusion of the board that the plaintiff's behavior fell within this classification therefore cannot be characterized as arbitrary or illegal; [Footnotes omitted.] Rado 553.

The plaintiff here Gedney admitted he possessed cocaine. This involved conduct proscribed by C.G.S. 21a-279a an unclassified felony. Section 21a-279a prescribes a maximum penalty of seven years imprisonment.

The Supreme Court has stated that "the prime index of the gravity of a particular crime is the length of the statutorily authorized prison term that a defendant convicted of the crime may be required to serve." State v. Tucker 219 Conn. 752 759 (1991).

With the principles of Rado and Tucker in mind the hearing officer's and the defendant board's classification of Gedney's conduct as "moral misconduct" cannot be characterized as arbitrary or illegal. And this conclusion by Court is not based solely on the legislature's determination that possession of cocaine warrants seven years imprisonment as opposed to eavesdropping's five years.

This conclusion is confirmed by the plaintiff's testimony before the hearing officer. Plaintiff testified in part:

Q. Now in your view your world view is using cocaine morally wrong?

A. Yes it is.

Q. And the use of cocaine by a teacher is misconduct isn't it?

A. Yes.

Transcript of Proceedings April 23 1992 p. 35-6.

In fact the day after he was arrested plaintiff "realized that most likely I was going to be terminated from my job." Transcript of Proceedings April 23 1992 p. 16.

The possession of cocaine by a teacher of fourth graders roughly ten-year olds not only warrants but probably demands a finding of "moral misconduct."

The Hearing Officer also found that the Administration has proven by a preponderance of the evidence received the statutory reasons for termination of a contract of employment of moral misconduct and other due and sufficient cause. [Italics added.] Hearing Officer's Findings and Recommendations April 5 1993 p. 22.

In discussing this second ground for termination the Hearing Officer stated:

The Administration claims that the Teacher's illegal conduct has a detrimental effect on the Board's operation of the "Here's Looking At You 2000" drug program and his position as a role model in the Groton School District which justifies the Teacher's termination for other due and sufficient cause.

As claimed by the Administration a significant consideration when determining whether conduct constitutes due and sufficient cause is the impact of the conduct upon operation of the school. That the current conduct is unrelated to a teacher's school activities still may constitute other due and sufficient cause for dismissal as found in a Connecticut case where a teacher was found guilty of larceny in second degree. Petrinov v. Board of Education 179 Conn. 428 (1980). In view of the school system's high profile no use program against drugs 'Here's Looking At You 2000' [Sic] under which teachers are asked to respond negatively to questions regarding prior drug use the Teacher's actions in the instant matter do constitute other due and sufficient cause. This is especially so since the Teacher was trained in and participated in the program. Moreover the Teacher admitted that he is aware and has always been aware of the fact that teachers are especially subject to scrutiny as a role model behavior exemplar and authority figure. Thus the Teacher's conduct had a detrimental effect on the students as set forth in the testimony of the health teacher. The health teacher found on the Monday after the Teacher's arrest that his students exhibited feelings of disappointment anger frustration fear and confusion. Hearing Officer's Findings and Recommendations April 5 1993 p. 21.

The grounds put forward by the defendant board for its conclusion that there was "other due and sufficient cause" for plaintiff's termination were carefully articulated in its April 12 1993 letter of termination.

A second and distinctly separate reason for terminating your employment contract is referred to in the Teacher Tenure Act (C.G.S. 10-151) as "other due and sufficient cause." [Sic] In this case other due and sufficient cause for termination concerns the impact of your misconduct on your ability to serve as an appropriate role model for elementary age students and to serve otherwise as a teacher in the Groton School System. The conclusion of the Groton Board of Education that your contract of employment must be terminated for other due and sufficient cause arises from Findings no. 5 through 10 inclusive 21 through 24 inclusive and no. 27 of the Hearing Officer's report. In your role as fourth grade teacher you are an authority figure behavior example exemplar and role model for the students you teach. You were at all relevant times aware that your reactions were subject to greater scrutiny than those of non-teachers because of your special position and profession. You are familiar with and were responsible for teaching the "Here's Looking at You 2000" drug curriculum which advocates a 'no use' drug and alcohol policy. In your role as a model to students you were advised as a part of the "Here's Looking At You 2000" curriculum to deny any prior drug use if asked by students. The curriculum specifically avoids all mention of previous drug use or addiction in an effort to prevent children from developing the idea that they can experiment with drugs and not suffer repercussions.

It was found by the hearing officer and by the Board that using recovering alcoholics and/or addicts to educate students on the hazards of drug use is inappropriate at the elementary school grade level. Unfortunately the notoriety resulting from your conduct on October 4 1991 when you possessed a controlled substance and related paraphernalia has profoundly diminished your ability to effectively discharge your duties as a fourth grade teacher. The Board has concluded that you cannot serve as an appropriate role model for elementary school age children and that you cannot credibly perform that essential function of your job which includes instruction in the 'no use' drug and alcohol policy. Your inability to perform that essential function constitutes other due and sufficient for termination of your teaching contract. Letter dated April 12 1993 from Mary G. Keith Chairman Groton Board of Education to Ronald M. Gedney.

In Rado v. Board of Education the Supreme Court also addressed the other due and sufficient cause ground for termination prescribed by C.G.S. 10-151(d).

With respect to the additional ground relied on by the board 'other due and sufficient cause ' this court in Tucker v. Board of Education 177 Conn. 572 577 418 A.2d 933 (1979) has treated that phrase as equivalent to good cause citing with evident approval a definition of that term taken from Rinaldo v. School Committee of Revere 294 Mass. 167 169 1 N.E.2d 37 (1937): 'Good cause includes any ground which is put forward by the [school] committee in good faith and which is not arbitrary irrational unreasonable or irrelevant to the committee's task of building up and maintaining an efficient school system.' In Tucker we declared that 'the decision to terminate must be reached after a careful examination of all pertinent factors relating to the particular situation with due consideration of the effect the teacher's conduct will have on the school authorities as well as on the students.' Id. 580. Thus in deciding whether particular conduct constitutes 'due and sufficient' cause for termination the impact of that conduct upon the operation of the school is a significant consideration. In the present case there is a substantial nexus between the plaintiff's misconduct and the school since that is where it occurred and its ramifications would be greatest. The conclusion of the board that 'such behavior must necessarily have undermined [the plaintiff's] capacity to effectively work [sic] with fellow staff members sets an extremely poor example for students and staff and reflects personal values inconsistent with [his] continued employment as a teacher' is supported by the findings of the panel and satisfies this statutory criterion for termination. [Footnote omitted.] Rado v. Board of Education 216 Conn. 541 554 (1990).

[Our Supreme Court has cited "with evident approval" the definition of "good cause" in Rinaldo v. School Committee of Revere 294 Mass. 167 169 1 N.E.2d 37 (1937). There the Supreme Judicial Court of Massachusetts found that terminating a woman teacher for getting married was a termination for good cause because the school committee had adopted a policy forbidding the employment of married woman teachers. Times do change!]

By statute local school boards are required to have drug education included in the curriculum at all grade levels.

The knowledge skills and attitudes required to understand and avoid the effects . . . of drugs . . . on health character citizenship and personality development shall be taught every academic year to pupils in all grades in the public schools; and in teaching such subjects textbooks and such other materials as are necessary shall be used. Not later than July 1 1991 and annually thereafter at such time and in such manner as the commissioner of education shall request each local and regional board of education shall attest to the State Board of Education that all pupils enrolled in its schools have been taught such subjects pursuant to this subsection and in accordance with a planned ongoing and systematic program of instruction. C.G.S. 10-19(a).

In the public schools the program of instruction offered shall include at least the following subject matter as taught by legally qualified teachers . . . health and safety including . . . substance abuse prevention . . . C.G.S. 10-16b(a).

The legislative determination and directive that "the knowledge skills and attitudes required to understand and avoid the effects . . . of drugs" and that "substance abuse prevention" "shall be taught every academic year to all pupils in all grades in the public schools" "in accordance with a planned ongoing and systematic program of instruction" in this State certainly underscores the importance of Groton's "NO USE" policy found in its "Here's Looking At You 2000." curriculum. The core of that curriculum is "NO USE." The Hearing Officer found "that it is the goal of the program to project a clear and consistent message to students." Findings 20. The program even provided that teachers if asked about their own use of drugs were to deny any drug use. Findings 21. A goal of the program is to prevent children from developing the idea that they can experiment with drugs and not suffer repercussions." Findings 22. Significantly the Hearing Officer found as a fact "that using recovering alcoholics and/or addicts to educate students on the hazards of drug use is inappropriate at the elementary level." Findings 23. Plaintiff's arrest and the conduct causing that arrest received radio and newspaper publicity was widely discussed by and among faculty students and parents. Findings 40-41. His students were "disappointed angry mad bad frustrated scared and confused" upon learning of his arrest and conduct. Findings 42. According to the Hearing Officer plaintiff's conduct had a detrimental effect on the students. Findings and Recommendations p. 23.

In view of the legislative directives mandating drug abuse education and particularly drug abuse prevention and the explicit findings of fact recounted in the preceding paragraph the defendant school board had "good cause" to terminate plaintiff.

Plaintiff claims "the decision of the defendant Board terminating plaintiff's contract of employment was . . . made in bad faith." Substitute Complaint June 29 1993 p. 3. [106] There is no evidence in the record to support that claim. It is implicit in the findings of the Hearing Officer that the instigation and prosecution of the termination proceedings were done in good faith. No evidence was put forward during Court proceedings which would support the allegation of the board's bad faith. Such evidence if there were any would be "relevant to an equitable disposition of the appeal." See C.G.S. 10-151(f). Members of a board of education are public officers. "There is a presumption that a public officer properly performs his duty unless the contrary appears." Cahill v. Board of Education 198 Conn. 229 242 (1985). In Court's mind the proper performance of duty includes acting in good faith. Court concludes that the defendant school board acted in good faith in terminating plaintiff.

The defendant board's reasons for terminating plaintiff were "not arbitrary irrational unreasonable or irrelevant to the committee's task of building up and maintaining an efficient school system." Rinaldo v. School Committee of Revere 294 Mass. 167 169 1 N.E.2d 37 (1937).

A school board should consider the effect the teacher's conduct will have on the school authorities as well as on the students. Tucker v. Board of Education 177 Conn. 572 580 418 A.2d 933 (1979). Similarly in deciding whether particular conduct constitutes 'due and sufficient' cause for termination, the impact of that conduct upon the operation of the school is a significant consideration. Rado v. Board of Education 216 Conn. 541 554 (1990).

"In the present case there is a substantial nexus between the plaintiff's misconduct and the school." Rado 554. Although plaintiff's [Gedney's] conduct did not occur at school the ramifications thereof to the school administration faculty and students were quite substantial. Rado 554. Again from Rado the defendant board's conclusion that Gedney's " 'behavior must necessarily have undermined [the plaintiff's] capacity to effectively work [sic] with fellow staff members sets an extremely poor example for students and staff and reflects personal values inconsistent with [his] continued employment as a teacher ' is supported by the findings of the [hearing officer] and satisfies this statutory criteria for termination." [Footnote omitted.] Rado v. Board of Education 216 Conn. 541 554 (1990).

The Hearing Officer believed there was also "substantive mitigating evidence." The Hearing Officer therefore recommended that plaintiff not be terminated but returned to employment at the start of the 1993-94 school year. Hearing Officer's Findings and Recommendations April 5 1993 p. 24. The defendant board of education rejected the Hearing Officer's recommendation that plaintiff not be terminated but returned to employment. It was not required to.

A school board 'has discretion to accept or reject a recommendation from an impartial hearing panel ' though it is bound by the panel's findings of fact unless unsupported by the evidence. Catino v. Board of Education 174 Conn. 414 417-18 389 A.2d 754 (1978). Rado v. Board of Education 216 Conn. 541 555 (1990).

Even though the defendant board was not required to follow the Hearing Officer's recommendation there are matters of record which seriously undercut his recommendation. The plaintiff had been granted Accelerated Rehabilitation in the criminal proceedings thus avoiding a criminal conviction. In his findings of fact the Hearing Officer stated:

73. Accelerated Rehabilitation is a pretrial probation program for persons who have been 'accused of a crime . . . not of a serious nature' and who have 'no previous . . . record of conviction of a crime . . . ' Findings and Recommendations April 5 1993 73 p. 17.

The Hearing Officer accurately quoted from C.G.S. 54-56e.

If the Hearing Officer interpreted the grant of Accelerated Rehabilitation [AR] as a finding by the granting Court that the defendant's delict was not of a serious nature, that interpretation is of doubtful validity and is not significant to the board's decision. The record of the proceedings before the Hearing Officer does not include the transcript of the criminal court's hearing on the application for Accelerated Rehabilitation. Thus there is nothing in the record of proceedings before the Hearing Officer upon which the Hearing Officer could have found the criminal court Court had found that Gedney's criminal activity "was not of a serious nature or, for that matter, that Court even made such a determination. The Hearing Officer found unequivocally that moral misconduct" and "other due and sufficient cause" had been established.

Furthermore the Hearing Officer stated in his findings that the Court who granted AR "urged that Mr. Gedney be allowed to continue teaching." Findings 72 p. 16; see also Discussion p. 23; Hearing Officer's Findings and Recommendations April 5 1993. A transcript of the proceedings of the AR court was not part of the record before the Hearing Officer. It is not clear to this court how the Hearing Officer came to the conclusion that the AR Court had "urged" plaintiff's reinstatement. For the reasons stated below this court rejects the Hearing Officer's finding as unwarranted and contrary to the record.

Court Jonathan E. Silbert was the AR Court. By happen-stance he was assigned this administrative appeal. Apparently after some review of the file Court Silbert thought it was inappropriate for him to hear and decide this case. Court Silbert wrote to Court D. Michael Hurley the Administrative Court for this Judicial District expressing his concerns and requesting that this matter be assigned to another Court. Court Silbert wrote:

The Board's Counsel had appeared at the Accelerated Rehabilitation hearing a) to object outright and b) to request that if granted I add a condition requiring Gedney to resign his teaching position. I granted the application and refused to add the condition noting that Gedney might well become an effective teacher on substance abuse issues as a result of his experience 'if your board lets you.' Although the Counsel in question understands that this comment was not an expression of opinion on the subject matter of this administrative appeal he is concerned that members of his Board might feel differently. To avoid even this appearance I reluctantly agree that this case should be assigned to someone else. Court Exhibit 1.

The case was then assigned to the undersigned.

On the day this case was to be heard this court read the letter from Court Silbert to Court Hurley; it had not read the letter before. Court believed neither Counsel was aware of Court Silbert's letter. On the record Court informed Counsel of the letter gave each a copy and had it made a court exhibit. Neither Counsel had been aware of the letter. Transcript of Proceedings 8/17/1995 pp. 1-4; Court Exhibit 1. There was clearly a conflict between Court Silbert and the Hearing Officer on what Court Silbert had said about plaintiff's being allowed to continue teaching. Court Silbert's letter contradicted the Hearing Officer's finding that Court Silbert had "urged that [plaintiff] be allowed to continue teaching." Court believed the letter seriously undermined the Hearing Officer's finding. Since that finding was quite material perhaps critical to the plaintiff's case Court asked Counsel if either wanted further time because of the letter's contents. Neither and specifically plaintiff's Counsel wanted further time or continuance. Id.

Court Silbert states that his "comment was not an expression of opinion on the subject matter of this administrative appeal." Court Exhibit 1. Since "the subject matter of this administrative appeal" boils down to whether plaintiff should be returned to his teaching position the Hearing Officer's finding is contradicted by Court Silbert. Court has not found anything in the transcript of the Hearing Officer's proceedings which would support the finding. It must be invalid as it is not supported by record evidence. To what extent the Hearing Officer was influenced by his mistaken belief that Court Silbert had urged that plaintiff be allowed to continue his teaching Court cannot tell.

Of course the defendant board was not aware of the invalidity of the finding when it acted. The board apparently accepted the finding but decided to terminate plaintiff despite the reported view of the AR Court.

As far as this court is concerned the defendant board was well within its authority in terminating the plaintiff. If the board had not terminated plaintiff its actions would at least appear to be two-faced and inconsistent. In the battle against drugs and particularly if that battle is to be won via educating our young a "Do As I Say Not As I Do" mode is doomed to failure. The defendant board was not required to take such a stance. Rado v. Board of Education 216 Conn. 541 554 (1990); Catino v. Board of Education 174 Conn. 417-18 (1978).

Court's "function in reviewing the action of the board pursuant to C.G.S. 10-151(f) is to determine whether the board has acted illegally and not to substitute [its] judgment for that of the board. Tucker v. Board of Education supra 583 (Cotter J. dissenting); Conley v. Board of Education 143 Conn. 488 492 123 A.2d 747 (1956)." Rado v. Board of Education 216 Conn. 541 555 (1990). See also Barnett v. Board of Education 232 Conn. 198 206 (1995).

In point of fact plaintiff's "moral misconduct" and the "other due and sufficient cause" were far greater than that contained in the statement of charges which the board found were substantiated. The charges and the board's findings were directed to the defendant's conduct "on or about October 4 1991" and the attendant fallout. Plaintiff explained his conduct by claiming he was addicted to cocaine as of October 4 1991. This meant he criminally had possessed and used cocaine for some time before October 4 1991. His sworn testimony before the hearing officer was that he used cocaine for ten years and as of 1991 used cocaine up to three times a month. Transcript of Proceedings 4/23/1992 p. 14-15.

Thus plaintiff's criminal possession of cocaine on October 4 1991 was not a single isolated event. His ten-year use of cocaine further supports the board's finding of "other due and sufficient cause." Since the "Here's Looking At You 2000" program began in 1986 plaintiff was using cocaine the entire time he was espousing its "No Use" message to his students. Because the ten-year extent of plaintiff's cocaine use came out through plaintiff's testimony the board would have been justified in finding more and/or greater "moral misconduct" and "other due and sufficient cause" than it relied upon in terminating plaintiff.

In the same vein Court has accepted and treated at face value the Hearing Officer's Finding 66: "Mr. Gedney can perform the essential elements of the job of elementary school teacher despite his handicap." Court wonders how many of the supportive endorsements he received from his colleagues would have been made if they knew his cocaine history went back ten years during six of which he was teaching the "Here's Looking At You 2000" curriculum. It is noted that plaintiff testified on April 23 1992 that he had used cocaine ten years etc. All the testimony from fellow teachers and administrators was presented before plaintiff testified. The record does not show that any of those from the Groton School System knew of the extent and length of plaintiff's cocaine involvement.

The recitation of facts in the previous three paragraphs should no way be interpreted as even suggesting the defendant board did not have sufficient facts before it on April 7 1993 to justify plaintiff's termination.

Court finds and concludes that the board acted in conformance with C.G.S. 10-151(d) and therefore did not act illegally in terminating plaintiff's employment.

II

The primary claim made in this appeal is that the board's action violated the Rehabilitation Act of 1973 29 U.S.C. 701 et seq. Significant to this case that Act provides in part:

No otherwise qualified individual with handicaps . . . shall solely by reason of her or his handicap be excluded from the participation in be denied the benefits of or be subjected to discrimination under any program or activity receiving Federal financial assistance. 29 U.S.C. 794.

This Rehabilitation Act claim is presented in an unusual context.

The proceedings to terminate plaintiff's employment are prescribed by statute. C.G.S. 10-151(d). As indicated above the Hearing Officer found there was "moral misconduct" and "other due and sufficient cause" for termination. The plaintiff urged the Hearing Officer to consider and decide his Rehabilitation Act claim(s). Before the Hearing Officer the school Administration contended the statutory termination proceeding should be limited to Connecticut's statutory grounds for termination. The Hearing Officer agreed that the statutory termination proceeding should be limited to a determination of the grounds stated in C.G.S. 10-151(d) relied upon by the Administration. The Hearing Officer declined to decide the Rehabilitation Act claims. Findings and Recommendations April 5 1995 p. 22. Since the Administration had stipulated that it received federal funds the Hearing Officer found the Board as an employer was covered by the Rehabilitation Act. Id 63 p. 14. The Hearing Officer did not make any other factual findings directed to the federal Rehabilitation Act of 1973.

This appeal is a part of the procedure set up by C.G.S. 10-151(d). In this appeal both parties maintain that this court must decide plaintiff's claims under the federal Rehabilitation Act of 1973. Transcript of Proceedings 8/17/1995 pp. 16-18 25. The parties agree at least implicitly that the record is sufficient to do so even though the Hearing Officer did not make any findings directed specifically to resolution of the Rehabilitation Act claim(s).

For the Rehabilitation Act to benefit plaintiff it must be established that plaintiff was (1) an "otherwise qualified individual (2) with handicaps (3) that his termination was solely by reason of his . . . handicap and (4) the Groton School Board was receiving federal financial assistance."

The defendant school board was receiving federal financial assistance; it admits the Rehabilitation Act applies. Findings and Recommendations April 5 1995 63 p. 14.

The defendant school board does not contest plaintiff's claim that he was addicted to cocaine and is therefore a "handicapped individual." Transcript of Proceedings 8/17/1995 p. 25.

The defendant school board does contest plaintiff's claims that he was an "otherwise qualified individual and that his termination was solely by reason of his . . . handicap."

This court must decide whether the plaintiff was (1) "otherwise qualified and (2) terminated solely by reason of" his handicap." The line between the two issues is faint indeed.

The [otherwise qualified] and [solely by reason of] elements are interrelated since if the individual is not otherwise qualified he cannot be said to have been rejected solely because of his handicap. Pushkin v. Regents of the University of Colorado 658 F.2d 1372 1385 (Cir. 1991). Doe By Lavery v. Counsel General of the United States 44 F.3d 715 718 (9 Cir. January 18 1995).

Shorn of embellishment plaintiff claims the Rehabilitation Act forbids an employer from even considering any conduct which is attributable to the handicap and/or the fallout from that conduct. Court holds the Act does not contain or require such a prohibition.

To support his Rehabilitation Act claim plaintiff relies exclusively on Teahan v. Metro-North Commuter Railroad Company 951 F.2d 511 (2nd. Cir 1991) cert. denied 506 U.S. 815 113 S. Ct. 54 121 L. Ed. 2d 24 (1992). Plaintiff's Brief September 29 1993 pp. 13-21. Teahan was a telephone and telegraph maintainer for the Metro-North Commuter Railroad. Over a period of years he accumulated an excessive number of unexcused absences. He received progressive discipline to no avail. Finally he was discharged for excessive absenteeism. Before his discharge he had informed his employer he was an alcoholic.

Teahan claimed he was an alcoholic which constitutes a handicap under 504 of the Rehabilitation Act of 1973. Teahan's complaint asserted that as a drug and alcohol abuser he was an 'otherwise qualified individual with handicaps' covered by the Act and that he was dismissed by Metro-North 'solely by reason of' his handicap. 951 F.2d 514.

Metro-North claimed Teahan was fired because of his absenteeism not his alcoholism. The district court granted summary judgment. "The district Court found genuine issues of material fact regarding elements (1) [whether Teahan was a 'handicapped person' under the Act] and (2) [is otherwise qualified] but granted summary judgment in favor of Metro-North on element (3) [terminated "solely by reason of" his handicap]. With respect to this element Court Lowe believed Metro-North had not relied on Teahan's handicap and had shown a nondiscriminatory reason for firing him (excessive absenteeism). Teahan 514.

The district court concluded that because Metro-North terminated him on account of absenteeism it was not relying on his alcoholism. Teahan 515.

"On appeal Teahan argues that because the ground upon which he was terminated was his excessive absenteeism and since his absenteeism was 'caused by' his substance abuse problem the district court" erred. Teahan 514.

Court of Appeals framed the question:

Hence we must determine whether an employee who has excessive unexcused absences from work as the result of alcoholism is terminated 'solely by reason of' his handicap when his employer relies on the absenteeism to terminate his employment. Analysis of the legislative purpose underlying the statute and of the case law interpreting 504 suggests the answer is 'yes.' Teahan 515.

Court of Appeals concluded that "an employer 'relies' on a handicap when it justifies termination based on conduct caused by the handicap." Teahan 516.

We hold therefore that termination by an employer subject to the Act which is justified as being due to absenteeism shown to be caused by substance abuse is termination 'solely by reason of' that substance abuse for purposes of 504. In sum whether or not absenteeism is 'caused' by a handicap is a question of fact. We note that the relevant inquiry is into the causal connection of those absences. We need not now decide the precise contours of causality necessary to satisfy this element of 504. If only a small percentage of Teahan's absences can be shown to have been 'caused' by his alcoholism and a sufficiently great number of absences are not so caused such would provide grounds for Metro-North to terminate appellant as not prompted solely by his reason of his handicap. Teahan 951 F.2d at 517.

In Teahan Metro-North contended that it fired Teahan because of his absenteeism not his alcoholism. The issue of Teahan's qualifications to perform his duties as a telephone and telegraph maintainer for the Metro-North Commuter Railroad was not resolved in Teahan. Teahan did not decide that Teahan was "otherwise qualified." Teahan only held that the an employer who bases an employment decision based on the attributes of a handicap is relying on the handicap. Teahan does not hold that an employment decision must be blind to either the handicap or its attributes. As will be seen below Teahan affords plaintiff little if any aid or comfort.

The Rehabilitation Act does not require an employer to ignore a handicap; to simplify it would not require an airline to hire a blind person as a pilot.

Southeastern Community College v. Davis 442 U.S. 397 (1979) held that the handicap itself may make a person unqualified for a particular position i.e. the person by virtue of the handicap would not be "otherwise qualified." The plaintiff Davis was almost totally unable to hear. The Supreme Court held that Frances Davis who suffers from a serious disability, a handicap rendered her unqualified to be a nurse. The effects of the handicap must be weighed against the requirements of the position. The ability to hear was a legitimate job requisite to be a nurse. Thus Davis was not "otherwise qualified" because her handicap itself a total hearing deficit made her unable to perform the essentials required of a nurse. The handicap itself may render the handicapped person unqualified for the particular position.

"An otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap." Davis 406. "Section 504 imposes no requirement upon an educational institution to lower or effect substantial modifications of standards to accommodate a handicapped person." Davis 406.

In a later case the Supreme Court of the United States stated: "In the employment context an otherwise qualified person is one who can perform 'the essential functions' of the job in question." School Board of Nassau County v. Arline 480 U.S. 273 287 fn. 17 (1987).

Doe v. New York University 666 F.2d 761 775 (2 Cir. 1981) involved an "academically gifted" medical student who "suffered for many years from serious psychiatric and mental disorders which evidenced themselves in the form of numerous self-destructive acts and attacks upon others followed by periodic treatments by psychologists and psychiatrists and admissions to various psychiatric hospitals for care and therapy. Doe 766. Her numerous and bizarre episodes are recounted at considerable length and detail in the opinion.

While at the medical school her problems recurred. She took a leave of absence. Later she applied for readmission. The medical school denied same believing the problems which precipitated her withdrawal had not been resolved and that "she posed an unacceptable risk to faculty students and patients." Doe 775.

Doe brought suit in the United States District Court under the Rehabilitation Act. The district court found she was a "handicapped person and that she was otherwise qualified." The district court also concluded "she had been denied readmission 'solely because of the handicap.' " Doe 772-73. The district court issued a mandatory preliminary injunction requiring the medical school to readmit her pending final determination on the merits.

On appeal the Second Circuit concluded "she should be classified as a handicapped person under the Act." Doe 775.

Court of Appeals for the Second Circuit then addressed the issue of her being "otherwise qualified."

Turning to the Act's term 'otherwise qualified handicapped individual ' it is now clear that this refers to a person who is qualified in spite of her handicap and that an institution is not required to disregard the disabilities of a handicapped applicant provided the handicap is relevant to reasonable qualifications for acceptance or to make substantial modifications in its reasonable standards or program to accommodate handicapped individuals but may take an applicant's handicap into consideration along with other relevant factors in determining whether she is qualified for admission. Southeastern Community College v. Davis supra 442 U.S. at 406 99 S. Ct. at 2367. The institution need not dispense with reasonable precautions or requirements which it would normally impose for safe participation by students doctors and patients in its activities. Section 504 simply insures the institution's even-handed treatment of a handicapped applicant who meets reasonable standards so that he or she will not be discriminated against solely because of the handicap. But if the handicap could reasonably be viewed as posing a substantial risk that the applicant would be unable to meet its reasonable standards the institution is not obligated by the Act to alter dilute or bend them to admit the handicapped applicant. Southeastern Community College v. Davis supra 442 U.S. at 413 fn. 12 99 S. Ct. at 2370. [Italics in original.] Doe v. New York University 666 F.2d 761 775 (1981).

The Second Circuit's view was that Doe had not established any likelihood of success in proving that despite her handicap she is qualified for acceptance as a medical student or to engage in the practice of medicine. Doe v. New York University 666 F.2d 761 779 (1981).

The district court's grant of mandatory preliminary injunctive relief was reversed. Doe 780.

In a later case the Second Circuit described its holding in Doe as follows:

Doe establishes that section 504 prohibits discrimination against a handicapped individual only where the individual's handicap is unrelated to and thus improper to consideration of the services in question. United States v. University Hospital State University of New York 729 F.2d 144 156 (2 Cir. 1984).

The three cases cited Davis Arline and Doe teach that the Rehabilitation Act permits an institution or an employer to consider the handicap and may take adverse action against a handicapped person if the handicap is related to the position in question.

Returning to Teahan v. Metro-North Commuter Railroad Company 951 F.2d 511 (2 Cir. 1991) cert. denied 506 U.S. 815 113 S. Ct. 54 121 L.Ed. 24 (1992) it is seen that Teahan is entirely and expressly consistent with Doe. For example:

. . . nothing in the statute prevents an employer from making a decision based on the job-related attributes or a person's handicap. Teahan 513. Because the statute does not bar an employer from considering an employee's handicap . . . Teahan 513.

Teahan refers to and cites Doe at least six times. Nowhere is there any hint that Teahan abrogated Doe's holding in any way. Thus an employer subject to the Rehabilitation Act of 1973 is not prevented from taking adverse action against an employee suffering from a handicap if the handicap or its attributes is relevant to the job requirements. Teahan recognizes that "whether conduct is job-related depends as much on the job as on the conduct." Teahan 521. The Second Circuit then warned:

Inasmuch as Teahan's responsibilities bear on public safety concerns any conduct demonstrated to be a manifestation of his handicap which is likely to occur in the future and which may implicate those public safety concerns is a matter the district court should consider in determining whether he is 'otherwise qualified.' Teahan 521.

Thus if Metro-North were to show that Teahan's alcoholism caused him to make work errors which compromised the integrity of the railroad's signal system he would not be "otherwise qualified."

It is clear that Court in Teahan did not make any determination that Teahan was an "otherwise qualified individual." It only held that reliance on the attributes of or conduct induced by the handicap is reliance on the handicap itself. Teahan in no way holds or implies that the employer cannot take into account handicap induced conduct in determining whether a person is fit for a particular job.

The Second Circuit has said of Teahan:

Teahan's central premise then is that an employer who 'justifies termination based on conduct caused by [an employee's] handicap' is in essence relying on that handicap for purposes of the rehabilitation act. Id. at 515-16. As a result the key determination becomes the factual issue of whether an employee's conduct (such as absenteeism) which forms the articulated basis for job termination is actually caused by a handicap (such as substance abuse). Id. at 517. Cushing v. Moore 970 F.2d 1103 1108 (2 Cir. 1992).

In fact on remand the district court held that Teahan was not "otherwise qualified." Teahan v. Metro-North Commuter R. Co. 63 USLW 2511 1994 WL 719720 (S.D.N.Y. 1994). The Second Circuit affirmed. Teahan v. Metro-North Commuter R. Co. 80 F.3d 50 (2 Cir. March 26 1996) (Teahan II).

In the proceedings before the Hearing Officer plaintiff admitted that he possessed the cocaine and knew it was a narcotic. He also admitted he used or possessed with intent to use drug paraphernalia. The Hearing Officer found that this conduct constituted "moral misconduct" and "other due and sufficient cause" which by statute are grounds for termination.

Plaintiff claims that the Hearing Officer's findings and recommendations show that he (plaintiff) is "otherwise qualified" within the meaning of the Rehabilitation Act. In his brief plaintiff argues:

The Hearing Officer made a finding of fact that plaintiff is otherwise qualified to teach in Groton: 'Mr. Gedney can perform the essential elements of the job of elementary school teacher despite his hardship.' (Record Hearing Officer Finding of Fact No. 66). Because this finding is binding on defendant Board (see: Catino supra 471-18) it is dispositive of the issue of whether plaintiff is 'otherwise qualified' under Section 504 of the Rehabilitation Act. Plaintiff's Brief September 29 1993 p. 18.

While plaintiff correctly asserts that fact findings of a Hearing Officer are binding on a board of education regarding issues raised pursuant to C.G.S. 10-151(d) the assertion is not correct as to federal Rehabilitation Act matters. Plaintiff has not brought forth any authority to the effect that the Board here or Court is bound by the Hearing Officer's findings of fact on Rehabilitation Act issues particularly where the Hearing Officer expressly declined to decide such issues.

Despite the Hearing Officer's view regarding plaintiff's ability to return to work as a teacher they are not apposite to the Rehabilitation Act. Although the Hearing Officer found plaintiff "can perform the essential elements of the job of elementary school teacher despite his hardship he also found that using recovering alcoholics and/or addicts [like Mr. Gedney] to educate students on the hazards of drug use is inappropriate at the elementary level." Hearing Officer's Findings and Recommendations April 5 1993 23 p. 10. Specifically while the Hearing Officer opined the plaintiff was qualified to teach he nevertheless found that there was '"moral misconduct" and that there was "other good and sufficient cause" to terminate plaintiff.

As noted the Hearing Officer expressly declined to decide the Rehabilitation Act issues. Findings and Recommendations April 5 1993 p. 22. The Hearing Officer did not make an express finding that teaching the "Here's Looking At You 2000" curriculum with its goal "to project a clear and consistent [NO USE] message to students" was not an essential element of a Groton elementary school teacher's job. If there is an implicit finding to that effect Court disagrees with it.

The board concluded that plaintiff was/is unable to perform an essential function of a Groton elementary school teacher. The Hearing Officer found Mr. Gedney can perform the essential elements of the job of an elementary school teacher, despite his handicap. Findings 66. If and to the extent that plaintiff claims that the board's conclusion must bow to the Hearing Officer's finding the court disagrees. The Hearing Officer may have reasoned that teaching and exemplifying the message of the "Here's Looking At You 2000" curriculum was not an essential part of plaintiff's job. Court has examined the record before the Hearing Officer and can find no support for that proposition. By statute substance abuse prevention "shall be taught every academic year to all students in all grades in the public schools" pursuant to a "program of instruction [which] is planned ongoing and systematic." C.G.S. 10-16b(a) and 10-19(a). No one could argue credibly that teaching the "three R's" was not an essential part of the plaintiff's job as an elementary school teacher. By statute these subjects must be taught in the public schools. C.G.S. 10-16b(a). The same statute requires substance abuse prevention be included in the course of instruction. C.G.S. 10-16b(a). But the three R's don't have to taught every academic year. However instruction on the avoidance of drugs etc. "shall be taught every academic year to pupils in all grades in the public schools. C.G.S. 10-19(a). As a matter of law teaching substance abuse prevention Here's Looking At You 2000, was an essential function of plaintiff's job as a Groton elementary school teacher.

The Hearing Officer's finding that "Mr. Gedney can perform the essential elements of the job of elementary school teacher despite his handicap" does not establish that plaintiff was "otherwise qualified" as that term is used in the Rehabilitation Act. There is a substantial body of case law under the Rehabilitation Act to the effect that substance abuse and/or conduct resulting therefrom even though a handicap recognized by the Rehabilitation Act can be grounds for a person's not being qualified for certain positions.

Copeland v. Philadelphia Police Department 840 F.2d 1139 (3 Cir. 1988) cert. denied 490 U.S. 1004 109 S. Ct. 1636 104 L. Ed. 2d 153 (1989) involved a police officer who had committed violations of the drug laws. He claimed he had a drug use handicap and therefore was protected by the Rehabilitation Act of 1973.

Copeland asserts that the Act permits analysis only of whether accommodation of physical handicaps is possible that is that the examination of 'moral' qualifications is beyond the scope of the Act. He argues that his thirteen-year service record proves that he satisfies the requirement that he 'can perform the essential functions of the job in question.' Copeland 1148.

The city and the United States as amicus asserted that the statutory construction advanced by Copeland is unduly narrow. They contend that the phrase 'otherwise qualified' permits analysis of whether accommodation is possible in light of all aspects of the job not merely its physical requirements. They assert that the very nature of the job requires that a police officer not engage in unlawful behavior because it is a police officer's duty to enforce the laws.

We conclude that accommodating a drug user within the ranks of the police department would constitute a 'substantial modification' of the essential functions of the police department and would cast doubt upon the integrity of the police force. No rehabilitation program can alter the fact that a police officer violates the laws he is sworn to enforce by the very act of using illegal drugs.

Because a police department is justified in concluding that it cannot properly accommodate a user of illegal drugs within the ranks we conclude that Copeland is not otherwise qualified for the position and thus does not qualify for the protections afforded by the Act. Therefore the district court properly granted the city's motion for summary judgment on Copeland's claim that his dismissal violated the provisions of the Act. Copeland v. Philadelphia Police Department 840 F.2d 1139 1149 (3 Cir. 1988) cert. denied 490 U.S. 1004 109 S. Ct. 1636 104 L. Ed. 2d 153 (1989).

Alan Taub was a distribution clerk for the United States Postal Service. He was terminated for "possession of heroin and possession of heroin with intent to distribute." Claiming drug addiction he claimed his firing violated the Rehabilitation Act of 1973. The United States District Court granted summary judgment in favor of the Postmaster General "on the ground that Taub's criminal conduct placed him outside the protection of the Act notwithstanding the fact that Taub would have been a 'qualified handicapped individual' due to his drug addiction." Taub v. Frank 957 F.2d 8 9-10 (1 Cir. 1992). Taub appealed. The First Circuit upheld the summary Courtment against Taub.

First the record establishes that Taub was not 'able to meet all [Postal Service] requirements in spite of his handicap ' Southeastern Community College v. Davis 442 U.S. 397 406 99 S. Ct. 2361 2367 60 L. Ed. 2d 980 (1979) ('An otherwise qualified person is one who is able to meet all of a[n agency's] requirements in spite of his handicap') and that no 'reasonable accommodation' of Taub's handicap could be made without 'sacrificing the integrity' of the Postal Service's employment standards see Wynn v. Tufts Univ. School of Medicine 932 F.2d 19 24 (1st Cir. 1991) (en banc) (quoting Brennan v. Stewart 834 F.2d 1248 1261 (5th Cir. 1988) (qualifying the 'arguably absolutist principles of Davis' by requiring that 'otherwise qualified' be defined not simply in light of existing program requirements but in light of 'reasonable accommodation' as well). Thus Taub was not a 'qualified handicapped person' within the meaning of the Act.

The Postal Service requires that its employees be 'honest reliable trustworthy . . . and of good character and reputation ' and specifically prohibits its employees from engaging 'in criminal . . . conduct . . .' Postal Service Employee Relations Manual 666.2 & 661.53. It is not the function of the federal courts to evaluate the appropriateness of agency employment standards but only to safeguard against 'arbitrary capricious or otherwise unlawful' standards. Sanders v. United States Postal Service 801 F.2d 1328 1333 (Fed. Cir. 1986) ('it has . . . long [been] held that agencies are vested by law with the discretionary authority and responsibility to determine what is necessary for their efficiency in discharging the missions assigned to them').

The MSPB supportably found and Taub does not dispute that he engaged in criminal conduct both by possessing heroin and distributing it. Criminal conduct which undermines 'public confidence in the integrity of the mails' has been determined 'inconsistent with the trust and confidence' legitimately required of Postal Service employees. Saunders 801 F.2d at 1332 (dismissal for off-duty drug sale); see also Parker v. United States Postal Service 819 F.2d 1113 (Fed. Cir. 1987) (dismissal for off-duty cocaine sale to co-worker); cf. Borsari v. Federal Aviation Administration 699 F.2d 106 (2d Cir.) cert. denied 464 U.S. 833 104 S. Ct. 115 78 L. Ed. 2d 115 (1983) (dismissal for off-duty possession and sale of marijuana; possession of cocaine); Masino v. United States 589 F.2d 1048 218 Ct.Cl. 531 (1978) (removal of customs officer for off-duty marijuana use). Furthermore such conduct could not be accommodated by the Postal Service without a 'substantial modification' of its requirements. Cf. Copeland v. Philadelphia Police Department 840 F.2d 1139 1148-49 (3d Cir. 1988) cert. denied 490 U.S. 1004 109 S. Ct. 1636 104 L. Ed. 2d 153 (1989) (police officer not within protection of Rehabilitation Act since use of drugs could not be accommodated without 'substantial modification' of an essential function of police department and without compromising its integrity). Thus Taub's criminal conduct was a sufficient basis upon which to conclude that he was not a 'qualified handicapped person.'

The second reason Taub is not within the protection of the Rehabilitation Act is that he was not discharged from employment 'solely by reason of his handicap' for drug addiction nor even for mere possession of heroin but rather for possessing heroin for distribution. Whatever force there may be in the contention that Taub's heroin addiction and addiction-related criminal possession of heroin would not remove him from the protection of the Act is simply too attenuated when extended to encompass an addiction-related possession of heroin for distribution.

Thus we are unable to agree that Taub made the required prima facie showing that he was entitled to protection under the Rehabilitation Act. Summary judgment was therefore appropriate. See Cartagena v. Secretary of the Navy 618 F.2d 130 134 (1st Cir. 1980) (summary judgment appropriate if plaintiff does not present sufficient evidence to permit inferences of illegal discrimination). Taub v. Frank 957 F.2d 8 10-11 (1 Cir. 1992).

Wilbur v. Brady 780 F.Supp 837 (D.D.C. 1992) involved an agent of the federal Bureau of Alcohol Tobacco and Firearms. He had driven his government issued car while off duty in the wrong direction on an interstate highway. A collision occurred with another vehicle. A 2-year-old girl passenger in the other vehicle was killed. Her mother was injured seriously and her vehicle totally destroyed. Wilbur failed all sobriety tests; his blood alcohol was 0.207. Plaintiff pled guilty to vehicular homicide and driving under the influence of alcohol. Plaintiff was fired. Asserting he was an alcoholic plaintiff claimed protection under the Rehabilitation Act of 1973. He claimed he was an "otherwise qualified handicapped" individual as defined by the Act. The defendant claimed "that plaintiff is not an otherwise qualified handicapped person and that plaintiff's misconduct disqualified plaintiff from being able to continue his employment as an ATF Special Agent." Wilbur v. Brady 780 F.Supp 837 838 (D.D.C. 1992). This case has been described as "perhaps the clearest explication of the principle." Gonalez v. California State Personnel Board 39 Cal. Rptr.2d 282 289 (Cal. App. 3 Dist. 1995). It lends the following:

A disabled individual cannot be 'otherwise qualified' for a position if he commits misconduct which would disqualify an individual who did not fall under the protection of the statute. The Rehabilitation Act mandates nondiscrimination against disabled individuals; it does not waive basic prerequisites to service; Engaging in serious criminal acts like those at issue . . . in the instant case could disqualify anyone regardless of ability from continuing to serve the federal government.

The Rehabilitation Act is designed to put individuals with disabilities on equal footing with non-disabled people in regards to the hiring promotion and discharge decisions of the federal government and its grantees. It is not designed to insulate them from disciplinary actions which would be taken against any employee regardless of his status. Wilbur 840.

And quoting from an oft-cited decision of the federal Merit Systems Protection Board:. . . there are certain acts of misconduct which when committed by an employee who is an alcoholic or drug addict take that employee outside the scope of the protecting legislation because misconduct renders that person not a 'qualified' handicapped individual. Id. at 142. [Hougens v. United States Postal Service 38 M.S.P.B. 135 142 (1988).] Wilbur v. Brady 780 F.Supp. 837 839 (1992).

Court then stated that the law "is clear that those who commit serious misconduct will not find refuge in the Rehabilitation Act. This outcome does not as plaintiff asserts read the word 'rehabilitation' out of the Act. It merely recognizes that the Act is designed to help those who have not already disqualified themselves through their own misconduct." Wilbur v. Brady 780 F.Supp. 837 840 (1992).

Court dismissed plaintiff's (Wilbur's) claim.

Little v. F.B.I. 1 F.3d 255 (4 Cir. 1993) is to like effect. Little a Special Agent of the F.B.I. was an alcoholic. He had several alcohol-related off-duty episodes which resulted in driving while intoxicated convictions. He received Counseling and therapy. Then while on duty he became intoxicated and fellow agents had to take him home. F.B.I. policy and regulations require that employees should never cause themselves to be mentally or physically unfit for duty. Although Little thereafter undertook in-patient treatment and has since remained dry he was terminated by the F.B.I. He sought relief under the Rehabilitation Act of 1973. The United States District Court dismissed his complaint. On appeal the Fourth Circuit discussed the various authorities including Taub v. Frank and Copeland v. Philadelphia Police Department; it upheld Little's dismissal stating:

Based on the foregoing authority the agency regulations implementing the Rehabilitation Act the provisions of the FBI's MAOP and the judicial opinions just discussed and based on no lesser authority than common sense it is clear that an employer subject to the Rehabilitation Act must be permitted to terminate its employee on account of egregious misconduct irrespective of whether the employee is handicapped. Little 637.

In short we agree with the district court that Little was not 'otherwise qualified' to be an FBI special agent. However we also rest our decision on a different portion of the statute a portion virtually ignored by the parties. The Rehabilitation Act applies only where the 'otherwise qualified handicapped individual' is subjected to adverse action taken 'solely by reason of his handicap.' 29 U.S.C. 794. In this case it is manifest that Little was not terminated 'solely by reason of his handicap.' Therefore on that basis too Little fails to state a claim under the Rehabilitation Act. Little v. F.B.I. 1 F.3d 255 259 (4 Cir. 1993).

Maddox v. University Of Tennessee 62 F.3d 843 (6 Cir. July 25 1993) records a similar result. Maddox was an assistant football coach. Shortly after Maddox began working at the University of Tennessee he was arrested and charged with driving under the influence of alcohol and public intoxication. According to newspaper reports the accuracy of which is not contested Maddox backed his car across a major public road at a high rate of speed almost striking another vehicle. When stopped by the officer Maddox was combative his pants were unzipped and he refused to take a breathalyzer. He also lied to the arresting officer stating he was unemployed. This incident was highly publicized and UT was obviously embarrassed by the public exposure surrounding the event. Maddox 62 F.3d 845.

The Athletic Director and Head Coach terminated Maddox. Maddox sued under the Rehabilitation Act. They testified the termination was necessary because of: 1) the criminal acts and misconduct of Maddox; 2) the bad publicity surrounding the arrest; and 3) the fact that Maddox was no longer qualified in their minds for the responsibilities associated with being an assistant coach. [Footnote omitted.] 62 F.3d 845.

The "coaching" also involved off the field responsibilities deemed "essential job functions." These included: "1) the recruitment of high school football players 2) serving as a positive role model for athletes on the university's football team 3) Counseling players on various issues including the use and abuse of alcohol and drugs and 4) promoting a positive image as a representative of not only the football program but the university as well." Maddox v. University Of Tennessee 62 F.3d 843 845 fn. 1 (6 Cir. July 25 1995).

The district court granted summary judgment for the University. It recognized the plaintiff had to "show he was fired by reason of his disability." Id. In the [district] court's view, summary judgment was appropriate because Maddox could not establish the existence of a material fact with respect to whether he had been fired by reason of his status as an alcoholic rather than by reason of his criminal misconduct. 62 F.3d 845. "The [district] court found it beyond dispute that Maddox's discharge resulted from his misconduct rather than his disability of alcoholism." 62 F.3d 846. The district court found it unnecessary to decide whether Maddox was otherwise qualified. Id.

Maddox claimed that his drunk driving was "a causally connected manifestation of the disability of alcoholism. "Thus Maddox contends that because alcoholism caused the incident upon which UT claims to have based its decision to discharge him UT in essence discharged him because of his disability of alcoholism." 62 F.3d 846. Maddox relied upon Teahan v. Metro-North Commuter R.R. Co. "Thus Maddox argues that in the instant case when UT acted on the basis of the conduct allegedly caused by the alcoholism it was the same as if UT acted on the basis of alcoholism itself." Maddox 62 F.3d 847.

The Sixth Circuit rejected that argument:

We disagree and hold that the district court correctly focused on the distinction between discharging someone for unacceptable misconduct and discharging someone because of the disability. As the district court noted to hold otherwise an employer would be forced to accommodate all behavior of an alcoholic which could in a way be related to the alcoholic's use of intoxicating beverages; behavior that would be intolerable if engaged in by a sober employee or for that matter an intoxicated but non-alcoholic employee. Maddox v. University of Tennessee 62 F.3d 843 847 (6 Cir. July 25 1995).2

The Sixth Circuit stated: "Despite Teahan a number of cases have considered the issue of misconduct as distinct from the status of the disability." Id. It then discussed Taub v. Frank 957 F.2d 8 (1 Cir. 1992) and Little v. F.B.I. 1 F.3d 255 (4 Cir. 1993). Court concluded:

At bottom we conclude that the analysis of the district court is more in keeping with the purpose and limitations of the respective Acts and therefore we decline to adopt the Second Circuit's reasoning in Teahan. Employers subject to the Rehabilitation Act and ADA must be permitted to take appropriate action with respect to an employee on account of egregious or criminal conduct regardless of whether the employee is disabled. In the instant case for example while alcoholism might compel Maddox to drink it did not compel him to operate a motor vehicle or engage in the other inappropriate conduct reported. Likewise suppose an alcoholic becomes intoxicated and sexually assaults a coworker? We believe that it strains logic to conclude that such action could be protected under the Rehabilitation Act or the ADA merely because the actor has been diagnosed as an alcoholic and claims that such action was caused by his disability. Maddox v. University Of Tennessee 62 F.3d 843 848 (6 Cir. July 25 1995).

Despears v. Milwaukee County 63 F.3d 635 (7 Cir August 21 1995 Rehearing and Suggestion for Rehearing En Banc Denied September 22 1995) involved a maintenance worker for a county public health facility. His job required a driver's license as he had to do some occasional driving. Despears driver's license was revoked after his fourth d.w.i. conviction. He was demoted to another job which did not require a driver's license. "Despears attributed the loss of his license to his having been an alcoholic." Id. Relying on Teahan v. Metro North Commuter R.R. Co. Despears claimed: "alcoholism caused him to drive under the influence; driving under the influence caused him to lose his driver's license; losing his driver's license caused him to be demoted; therefore he was discriminated against by his employer on account of a disability in violation of the statutes." 63 F.3d at 636.

The Seventh Circuit rejected that argument and in so doing refused to follow plaintiff's claims as to what Teahan requires here.

But we have drifted from the point which is simply that the criminal law proceeds on the premise that even alcoholics can avoid driving while under the influence of alcohol. And if this is so then Despears despite his alcoholism could have avoided the demotion of which he complains by avoiding driving while drunk. His disability concurred with a decision to drive while drunk to produce the loss of license and resulting demotion. The disability contributed to but did not compel the action that resulted in the demotion.

To impose liability under the Americans with Disabilities Act or the Rehabilitation Act in such circumstances would indirectly but unmistakably undermine the laws that regulate dangerous behavior. It would give alcoholics and other diseased or disabled persons a privilege to avoid some of the normal sanctions for criminal activity. It would say to an alcoholic: We know it is more difficult for you to avoid the crime of drunk driving than it is for healthy people and therefore we will lighten the sanction by letting you keep your job in circumstances where anyone else who engaged in the same criminal behavior would lose it.

The refusal to excuse or even alleviate the punishment of the disabled person who commits a crime under the influence as it were of his disability yet not compelled by it and so not excused by it in the eyes of the criminal law is not 'discrimination' against the disabled; it is a refusal to discriminate in their favor. It is true that the Americans with Disabilities Act and the Rehabilitation Act require the employer to make a reasonable accommodation of an employee's disability but we do not think it is a reasonably required accommodation to overlook infractions of law. [Citation omitted.] Despears v. Milwaukee County 63 F.3d 635 637 (7 Cir. August 21 1995).

Thus the authorities do not extend Teahan to the reaches necessary to benefit plaintiff. Plaintiff has cited no authority that criminal conduct brought on by a handicap must be disregarded or even discounted when determining whether an employee is "otherwise qualified" by the Rehabilitation Act of 1973. Court has been unable to find any such holding. And there are a plethora of cases some of which are recounted in the preceding pages in which courts have held that criminal conduct attributable to a disability may indeed must be held against the employee.

As pointed out earlier plaintiff relies heavily if not totally on Teahan for his Rehabilitation Act claims. Plaintiff has not cited any authority other than Teahan to support his Rehabilitation Act claims. Teahan does not even suggest that addiction induced criminal conduct cannot enter the otherwise qualified equation. In fact Teahan states "nothing in the [Rehabilitation Act] statute prevents an employer from making a decision based on the job-related attributes of a person's handicap." Teahan 513.

Plaintiff recognizes that even under Teahan a handicap does not mask all criminal conduct induced by the handicap. During the court hearing the following exchange occurred:

Court: Well the fact that he wasn't convicted does that really make any difference?

MR. DOLAN: I suppose it doesn't Your Honor. I suppose it doesn't. I only

Court: Because if he was you know that would go to the solely by reason of

MR. DOLAN: That's true.

Court: element. And that all flowed from his addiction.

MR. DOLAN: That's correct. That's correct. I suppose that that is not really a significant factor. I cite

Court: Even though it sounds better if you are trying to justify something.

MR. DOLAN: Well I suppose it does. I think what is important here and is that there are findings that Mr. Gedney was never impaired in school. He was really a superb teacher. There's no doubt about that. Never possessed a substance in school. Never engaged in egregious conduct of selling drugs or somehow involving students and that. If those were the circumstances we wouldn't be here before Your Honor today.

Court: Well wait a minute. Why do most sellers sell that are also addicts?

MR. DOLAN: To support their habit.

Court: Doesn't that flow from the handicap?

MR. DOLAN: Well I guess it

Court: It would sound better.

MR. DOLAN: it flows from the handicap. I will certainly concede to Court that there's a cutoff point here. The more OMEGA

Court: It doesn't say that in Teahan.

MR. DOLAN: the more attenuated the behavior becomes I think the less reasonable it is to say that this that simply because this flows from the handicap that this is somehow protected conduct. I think that there's certain conduct that is so egregious that it would prevent someone from being otherwise

Court: Well that gets to the otherwise qualified.

MR. DOLAN: I think the if I might say the whatever bazaar or unreasonable results might stem from following the Teahan's case's interpretation of solely by reason of its logical conclusion is tempered by the Court's ability to say that certain behavior is so egregious that it forecloses the employee from being otherwise qualified.

Transcript of Proceedings August 17 1996 pp. 14-15.

Similarly in his brief plaintiff correctly states: "Certainly certain drug related teacher misconduct such as selling drugs to students is so egregious that it would foreclose the teacher from being 'otherwise qualified ' despite recovery from addiction." Plaintiff's Brief September 29 1993 p. 21. [110] Plaintiff acknowledges "there's certain conduct that is so egregious that it would prevent someone from being otherwise [qualified]" and "that certain behavior is so egregious that it forecloses the employee from being otherwise qualified." Transcript of Proceedings 8/17/95 p. 15. Plaintiff has conceded that Teahan does not insulate all addiction-based criminal conduct from consideration by an employer.

In view of this concession plaintiff's position is reduced to a claim that his conduct was not so egregious as to lose the protections of the Rehabilitation Act. Plaintiff implies that the Rehabilitation Act of 1973 directs that any drug related conduct on his part short of his selling drugs to students must be overlooked by the defendant school board.

At oral argument during a colloquy on "otherwise qualified Court posed a hypothetical question involving plaintiff's fictional twin. The twin drank the same amount of alcohol every time plaintiff did. He used the same amount of cocaine plaintiff did every time plaintiff used cocaine. The twin was stronger physically and mentally than plaintiff. The twin never became addicted. The court asked: . . . the twin wouldn't have the protections of the rehab act would he?" Plaintiff's Counsel answered: No, he would not, Your Honor. After elaboration on the hypothetical the court inquired . . . but, if his twin didn't get addicted, I'm only talking about the rehab act, would you agree with me under the rehab act he [plaintiff's twin] wouldn't be protected because he Plaintiff's Counsel again responded: "He would not be protected under the rehab act." Transcript of Proceedings 8/17/1995 pp. 21 22-23.

It follows that Gedney himself is not entitled to the protections of the Rehabilitation Act because he like his imaginary twin was not "otherwise qualified."

Shorn of embellishment plaintiff claims the Rehabilitation Act forbids an employer from even considering any conduct which is attributable to the handicap and/or the fallout from that conduct. Court holds the Act does not contain or require such a prohibition. Unequivocally the authorities cited hold an institution or employer can consider the handicap and the handicap caused conduct as it relates to fitness for a particular position or job.

The mission of the Groton Board of Education the defendant here is no less important or less responsible to the public it serves and must answer to than the police department of the City of Philadelphia the postal service the ATF the F.B.I. the University of Tennessee or Milwaukee County.

The defendant Board of Education could reasonably and correctly conclude that the defendant's admitted use of cocaine and admitted possession of drug paraphernalia on October 4 1991 made him a person not "otherwise qualified" to be an elementary grade teacher. A first time user of cocaine and thus presumably a person not addicted would not be a person the board would have to either hire or retain as a teacher since such conduct would constitute "moral misconduct" and "other good and sufficient cause."

So too the defendant Board could consider the effect that plaintiff's conduct had and would have on his being a teacher in an elementary school. His arrest received significant media attention. The community students teachers administrators and the public at large were aware of his arrest and the reason for it. It obviously had a deleterious effect on the goal and mission of the school system's effort to send a consistent clear message against drug use.

Labels could distort the picture here. In his briefs submitted to the Hearing Officer plaintiff described himself as a "recovering alcoholic" and "recovering cocaine addict." E.g. Brief of Ronald Gedney July 24 1992 p. 6. The Hearing Officer adopted these terms. Findings #s 57 and 58. Although technically correct these descriptions candy-coat the situation. If the vanilla is stripped away without hyperbole the reality is that the defendant refused to retain as an elementary school teacher what those in the drug scene know as an "ex-junkie." The defendant board's action is hardly arbitrary capricious or clearly erroneous etc. as plaintiff contends.

Two of the findings when considered together buttress the action taken by the board. These are the findings that plaintiff criminally possessed cocaine and that his "use of cocaine was compulsive behavior related to his addiction." Plaintiff's addiction should not have mollified the board's concerns. The board had known plaintiff possessed cocaine in October 4 1991. Presumably the board learned of his cocaine addiction when it received the Hearing Officer's report in April 1993. This only darkened the situation. The cocaine plaintiff possessed on October 4 1991 did not cause his addiction; he did not get to ingest it. By claiming addiction the plaintiff told the board he had used cocaine before. According to plaintiff's sworn testimony before the Hearing Officer he had used cocaine for ten years and as of October 1991 used it three or four times a month. Transcript of Proceedings 4/23/1992 p. 14-15. The record does not show whether the board knew the length and extent of plaintiff's cocaine use; this information was not included in the Hearing Officer's Findings etc.

The Hearing Officer found not surprisingly that "teachers are authority figures behavior examples exemplars and role models for the students they teach." Findings 5. Even without a finding to that effect it is common knowledge that society in general holds teacher as such. It cannot be gainsaid that being an appropriate behavior model was and is an essential element of the job of a teacher in the Groton School System.

Southeastern Community College v. Davis 442 U.S. 397 (1979) held that An otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap. Davis 406. The Rehabilitation Act "imposes no requirement upon an educational institution to lower or effect substantial modifications of standards to accommodate a handicapped person." Davis 406.

In Taub v. Frank 957 F.2d 8 (1 Cir. 1992) the First Circuit stated:

It is not the function of the federal courts to evaluate the appropriateness of agency employment standards but only to safeguard against "arbitrary capricious or otherwise unlawful" standards. Sanders v. United States Postal Service 801 F.2d 1328 1333 (Fed. Cir. 1986) ("it has . . . long [been] held that agencies are vested by law with the discretionary authority and responsibility to determine what is necessary for their efficiency in discharging the missions assigned to them"). Taub v. Frank 957 F.2d 8 10 (1 Cir. 1992).

It is not the function of or proper for this Superior Court to question or second guess the "appropriateness" of the standards by which the plaintiff was Courtd by the defendant board. The board did not set the standard: the legislature did. The standards for termination of a teacher are set by statute. By statute a teacher may be discharged for "moral misconduct" and/or "other due and sufficient cause." Thus the statutory standard cannot be challenged; indeed the plaintiff has not.

Nor can plaintiff require the defendant board "to lower or effect substantial modifications of [C.G.S. 10-151(d)'s] standards to accommodate" him. Southeastern Community College v. Davis 442 U.S. 397 406 (1979). The defendant board is not obligated to alter dilute or bend" C.G.S. 10-151(d)'s standards. Doe v. New York University 666 F.2d 761 775 (2 Cir 1981).

The record abundantly supports the uncontradicted unchallenged findings of "moral misconduct'" and/or "other due and sufficient cause."

The defendant school board concluded that the notoriety of plaintiff's criminal use of cocaine negatively impacted "his ability to serve as an appropriate role model for elementary age students and to serve otherwise as a teacher in the Groton School System and profoundly diminished [his] ability to effectively discharge [his] duties as a fourth grade teacher." The board also concluded that plaintiff "[could] not serve as an appropriate role model for elementary age school children and that [plaintiff] could not credibly perform that essential function of [his] job."

Not one word has been put forth by plaintiff challenging or disputing the Hearing Officer's and the defendant board's findings and conclusions that being a role model exemplar etc. was a critical part of plaintiff's teaching position. Nor has there been any contention that plaintiff could credibly serve as such. Rather plaintiff has avoided any mention of his ability to serve as an appropriate "role model exemplar behavior example etc. And, plaintiff admits as much when he suggests there were ways that the school board could have accommodated him or that there were narrower actions" the board could have taken. See Transcript of Proceedings 8/17/95 p. 8 and Plaintiff's Brief September 29 1992 p. 25.

The decision the defendant board faced in April 1993 was whether the plaintiff could then and in the future effectively teach in the Groton school system. It was not the board's responsibility or function to punish or to vindicate the wrong committed by the plaintiff. The board's inquiry was a forward-looking one. Teahan I 521; Teahan II 55. Could he be an effective teacher thereafter in view of all that had transpired. "Moral misconduct" is grounds for dismissal because that misconduct negatively impacts the moral value image demanded of a teacher. Similarly the "other due and sufficient cause" is plaintiff's despoiled value as a teacher capable of credibly promoting the "NO USE" theme of "Here's Looking At You 2000." The board's decision was a judgment call within its authority. That authority was not constrained by the Rehabilitation Act.

The Rehabilitation Act requires an employer make "reasonable accommodations" for the benefit of a handicapped person.

"Otherwise qualified therefore, includes an additional concept. A plaintiff is otherwise qualified only if [he] can perform the essential functions of [his] job with or without reasonable accommodation." Borkowski v. Valley Cent. School Dist. 63 F.3d. 131 137 (2 Cir. 1995); Gilbert v. Frank 949 F.2d 637 (2 Cir. 1991).

A plaintiff relying on a claimed "reasonable accommodation" to show he is otherwise qualified "must in order to make out a prima facie case show that . . . he can perform the essential functions of the job . . . with a reasonable accommodation. Gilbert v. Frank 949 F.2d 637 642 (2 Cir. 1991).

The record of the proceedings before the Hearing Officer does not show that plaintiff made any "reasonable accommodation" claim or showing during those proceedings. Plaintiff offered no evidence regarding "reasonable accommodation" in those proceedings. The briefs plaintiff submitted to the Hearing Officer make no such claim or showing. The Hearing Officer recommended full reinstatement. He declined to decide any Rehabilitation Act issues. He made no finding(s) germane to "reasonable accommodation."

In this court plaintiff has not claimed or argued that the defendant board had violated any "reasonable accommodation" requirements of the Rehabilitation Act. Plaintiff's brief did not contain any claim argument analysis or even mention of "reasonable accommodation." See Plaintiff's Brief September 29 1993 pp. 13-22. The absence of any such claim argument or analysis from plaintiff's brief is significant. Under our practice for appeals from administrative decisions the appellant's brief is the "defining moment" for the appeal. It defines the claims being made. If a claim is not briefed it is not an issue in the appeal.

No "reasonable accommodation" claim(s) was/were made during oral argument before Court. Transcript of Proceedings 8/17/1995. Neither the defendant nor Court were put on notice that plaintiff was making any claim that the defendant school board had violated the Rehabilitation Act by not providing some form of "reasonable accommodation." Court does not believe plaintiff has made any "reasonable accommodation" claim in this case.

During that oral argument however and while on another topic plaintiff did make passing reference to the subject: "He might as a reasonable accommodation even be excused from teaching this curriculum or assigned to another level where he wouldn't have to teach the curriculum." Transcript of Proceedings August 17 1995 p. 8.

Although Court does not believe plaintiff thereby intended to make or effectively made a "reasonable accommodation" claim what plaintiff suggested would not be a "reasonable accommodation."

"Showing that an accommodation is available that would allow the plaintiff to perform the essential functions of [his] job is an element of the plaintiff's case." Borkowski 63 F.3d 141. " 'Reasonable accommodation' does not mean elimination of any of the job's essential function." Gilbert v. Frank 949 F.2d 637 642 644 (1991). A proposed accommodation that would excuse plaintiff from performing an essential job function is not a "reasonable accommodation" under the Rehabilitation Act. Borkowski 63 F.3d 141. What plaintiff may have "suggested" as a reasonable accommodation excusing him from teaching the "Here's Looking At You 2000" curriculum would eliminate plaintiff's performing an essential function of his elementary school teaching position. The alternative "suggestion assigning plaintiff to another level where he wouldn't have to teach the curriculum" does not avail plaintiff. Plaintiff was an elementary school teacher. Assigning him to a middle school or the high school would be a change in jobs. Changing plaintiff's job does not "allow plaintiff to perform the essential functions of his job" as an elementary school teacher. 63 F.3d 141.

"Reasonable accommodation" still requires that the handicapped person even with the accommodation perform all the essential elements of his position. Since teaching the "Here's Looking At You 2000" curriculum is an essential element of plaintiff's job relieving him of that responsibility by definition is not a "reasonable accommodation."

The plaintiff has not shown he was/is "otherwise qualified" to be a Groton elementary school teacher. Court concludes that plaintiff Gedney was not "otherwise qualified."

Plaintiff has not established his termination was "solely by reason of his handicap." As required by Teahan Court finds that the plaintiff was terminated because of his handicap. But the handicap was not the sole or only reason for his termination. He was not fired just because he had had a handicap drug addiction. The board terminated plaintiff because he was not qualified or in Rehabilitation Act terms otherwise qualified. Frances Davis of Southeastern Community College v. Davis was not allowed to pursue nursing education because of her handicap a near-total hearing deficit. But that handicap rendered her not "otherwise qualified." Therefore her inability to pursue nursing was not solely by reason of her handicap.

Like Frances Davis plaintiff was not "otherwise qualified" and therefore he was not terminated "solely by reason of" his having been a cocaine addict.

Court finds and concludes that the plaintiff's termination was not solely by reason of his handicap.

The plaintiff is not entitled to relief by virtue of the Rehabilitation Act of 1973.

III

The plaintiff claims his "termination also violated his equal protection rights as a disabled person under Amendment XXI of the Connecticut Constitution. Plaintiff's Brief September 29 1993 p. 22. [110].

Amendment XXI states in relevant part:

no person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion race color ancestry national origin sex or physical or mental disability. Conn. Const. amend. XXI.

Because he is a recovering alcoholic and cocaine addict plaintiff claims he is a disabled person under amendment XXI. Plaintiff's Brief September 29 1993 p. 22-23. [110].

The Hearing Officer did find the plaintiff admitted to the abuse of alcohol and cocaine and is a recovering alcoholic and cocaine addict. Findings 53 55 57 and 58. Those findings were not contested. The defendant school board concedes plaintiff was addicted to cocaine and therefore had a physical or mental disability. Transcript of Proceedings 8/17/1995 pp. 24-25. Court accepts plaintiff's claim that he had a physical or mental disability.

Relying perhaps solely on Daly v. DelPonte 225 Conn. 499 (1993) plaintiff claims "that governmental action that discriminates on the basis of disability is violative of the equal protection clause of the state constitution unless it survives strict scrutiny." Plaintiff's Brief September 29 1993 p. 23. [110]

Daly v. DelPonte's plaintiff Daly suffered from a seizure disorder. The defendant Motor Vehicle Commissioner had suspended Daly's driver's license but allowed for reinstatement. Reinstatement was conditioned on Daly's submitting medical reports on his condition every three months. The Supreme Court held that the preconditions for reinstatement had "no foundation whatsoever in the record." The record was void of any "assessment of the risks posed by this plaintiff's driving and the relationship of proposed reporting requirements to minimizing that risk." Daly 517. The Supreme Court said a "strict scrutiny" review was required.

The essence of the plaintiff's legitimate complaint in this case lies therefore in the conjunction of his due process and equal protection rights. In this case the commissioner initially attempted to obtain a medically sound determination regarding the plaintiff's condition. Furthermore the commissioner properly afforded the plaintiff a hearing regarding the license suspension. The commissioner's order is constitutionally defective however because it lacks support from an appropriately structured administrative inquiry into the proper scope of post reinstatement conditions tailored to the condition of this plaintiff. The legislature has put into place statutory authorization for precisely such a process of inquiry. See General Statutes 14-46a through 14-46g; footnote 6. To safeguard the plaintiff's equal protection rights the commissioner must avail himself of these processes so as to develop a medically appropriate response to the plaintiff's seizure disorder. Without such an inquiry which the record discloses did not occur in this case the commissioner's imposition of reporting requirements violated the plaintiff's equal protection right to a narrowly tailored remedy to safeguard the public's interest in safe highways. [Footnotes omitted.] Daly v. DelPonte 225 Conn. 499 518 (1993).

Daly's seizure disorder was a disability. "It is undisputed that the commissioner's decision to place conditions on the plaintiff's license was based on the plaintiff's status as an individual who suffers from a medical disability." Daly 512. Amendment XXI contains an "explicit prohibition of discrimination because of physical disability." Daly 513-14. The Supreme Court then held that "strict scrutiny" was the appropriate level of judicial scrutiny for a claimed violation of amendment XXI.

Strict scrutiny analysis requires state action resulting in unequal treatment to be justified in two particulars. State action can survive constitutional scrutiny only if it (1) serves a compelling state interest and (2) is narrowly tailored to serve that interest. Horton v. Meskill supra 640. Daly 515-6.

Daly did "not dispute that the state's asserted interest in highway safety is a compelling state interest." Daly 515. The issue then was whether the action taken the imposition of post reinstatement medical reporting was sufficiently narrowly tailored to serve the state's interest in highway safety. Daly 516. The Supreme Court then held "the commissioner's order [was] constitutionally defective however because it lacks support from an appropriately structured administrative inquiry into the proper scope of post reinstatement conditions tailored to the condition of this plaintiff." Daly 518.

Daly v. DelPonte does not hold or suggest that the imposition of any or all conditions is prohibited by Amendment XXI. In fact that case states that the conditions imposed by the commissioner may be entirely appropriate; but that would depend on the results of the required administrative inquiry. Daly v. DelPonte 225 Conn. 499 518 fn. 16 (1993).

Court is hard pressed to see how Daly v. Delponte is any help to the plaintiff.

It is the plaintiff's burden to establish that he was discriminated against because of his disability in violation of the equal protection clause of the state constitution. Cameron v. Alander 39 Conn.App. 216 221-22 (September 12 1995).

To implicate the equal protection clauses under the state and federal constitutions it is necessary that the statute or action treat differently persons standing in the same relation to it. Franklin v. Berger 211 Conn. 591 596 560 A.2d 444 (1989). [Footnote omitted.] State v. Johnson 26 Conn.App. 553 558 (1992).

In an effort to show "unequal treatment plaintiff contends that the defendant board had taken less severe action against two employees who had had problems with alcohol. Plaintiff relies on two findings of the Hearing Officer.

64. Following an arrest for drunken driving that was reported in the press, a school principal was reinstated to his position by the Board of Education.

65. Another Groton school administrator, who had a known alcohol problem, was continued in employment after he stopped drinking.

Findings and Recommendations, April 5, 1993, p. 14.

There is nothing else in the record about these individuals, the specifics of the events, the circumstances surrounding same, or when the events occurred. Yet, in oral argument, plaintiff stated:

Also, Your Honor, there is a great element of hypocrisy in the school board's claim that as a recovering substance abuser Mr. Gedney can't teach there. They [Sic] are binding findings of fact that there were at least two administrators, principal and an even higher level administrator who were notorious substance abusers and that was well-known throughout the community and that despite those conditions they were reinstated in their positions and that they were continued.

The school board can't fire under section 504 or the equal protection clause of the state constitution apply a distinct different standard to Mr. Gedney then [Sic] they do to other employees particularly school administrators. Transcript of Proceedings, 8/17/1995, pp. 9-10.

Vis-a-vis the Hearing Officer's findings, plaintiff's position as just quoted is not warranted by the record.

Court cannot equate plaintiff's conduct and situation with that of the principal or the other administrator based on the bare bones findings in the record. Furthermore, possession of cocaine is viewed by our law as far more egregious conduct than drunken driving [even if there were a finding of drunk driving] or having a known alcohol problem whatever that means. Possession of cocaine is a seven year felony. C.G.S. 21a-279a. The maximum penalty for a drunken driving first conviction is equivalent to that of a Class B misdemeanor, six months imprisonment. C.G.S. 14-227a(h) and 53a-36. Even for a fourth or subsequent conviction of drunken driving, the maximum penalty is three years. C.G.S. 14-227a(h). Having in mind that the prime index of the gravity of a particular offense is the length of the statutorily authorized prison term" for that offense State v. Tucker 219 Conn. 752 759 (1991) Gedney's criminal possession of cocaine the attendant publicity its "detrimental effect on the students cannot be equated to the situations of the principal and administrator whom plaintiff offers as comparables.

The scant record before this court regarding the principal and the other administrator does not afford a legitimate means for comparison to Gedney's criminal possession of cocaine, the attendant publicity, its detrimental effect on the students etc., and termination of employment.

The plaintiff has not shown he was discriminated against because of his disability. There is no finding or evidence that the defendant board treated him worse than any other person standing in the same relation. He has not shown that the board terminated him because he was an addict who possessed cocaine but had retained another teacher who possessed cocaine but was not an addict.

Court concludes that the plaintiff has not shown he was treated differently by the board than any other person(s) under substantially similar circumstances.

Court rejects the idea that defendant was terminated because of his disability.

The people of Connecticut did not adopt the physical or mental disability" provision of amendment XXI in 1984 to insulate people with such disabilities from the consequences of their own criminal conduct. An alcoholic is not shielded from a drunk driving conviction or a license suspension by amendment XXI. Nor does amendment XXI prohibit a day care provider from terminating the employment of a pedophile holding a child care position. Amendment XXI does not protect a drug addict from a criminal conviction and imprisonment for possession of cocaine in violation of C.G.S. 21a-279(a). In the same vein amendment XXI does not forbid plaintiff's firing on the statutory grounds of "moral misconduct" and "other due and sufficient cause" even if the "moral misconduct" and other "due and sufficient cause" emanated from his substance abuse disability. Amendment XXI does not require that plaintiff be given preferential treatment which is what he actually seeks.

No case or other authority has been cited to Court which holds or even suggests that amendment XXI prohibits consideration of disability-induced criminal conduct in personnel decisions.

Court finds that the plaintiff has not shown that his termination was due to his disability. The school board's not giving plaintiff preferential treatment does not translate to an act of discrimination. There is no claim that the state or the defendant board of education could not have terminated a nondisabled nonaddicted teacher for the same reasons as plaintiff was terminated i.e. "moral misconduct" and "other due and sufficient cause" by virtue of his possession of cocaine etc. A nondisabled teacher who had possessed cocaine could not successfully invoke claims regarding equal protection strict scrutiny compelling state interest narrowly tailored etc. But somehow because the plaintiff is disabled he claims he cannot be fired unless there is a compelling state interest involved and the termination is the least burdensome means of protecting that interest. But the plaintiff says his termination can be upheld only if there is a compelling governmental interest to be protected and the termination is necessary to protect that interest. The plaintiff claims equal protection protects him and bars his termination while a teacher who is not addicted can be fired for the same conduct. That is not equal protection. Such a claim defies common sense. Neither of our constitutions bars the use of common sense. Plaintiff's equal protection claims must be recognized for what they are: cries for preferential treatment imploring that a person with a mental or physical disability be given preferential treatment.

Court finds and concludes there was no discrimination.

There being no discrimination in violation of amendment XXI no further judicial scrutiny is necessary or warranted.

Application of a particular standard of judicial scrutiny presupposes the existence of an injury to a constitutionally protected interest. Only after the injury has been identified can analysis proceed to the inquiry of 'whether a [sufficient] governmental interest justifies the infliction of that injury.' Adarand Constructors Inc. v. Pena U.S. (63 U.S.L.W. 4523 4531 June 13 1995.) Questions concerning the level of judicial scrutiny to be applied in a constitutional challenge therefore presuppose a judicial determination that a constitutionally protected interest has been infringed. Benjamin v. Bailey 234 Conn. 455 462 (1995).

Although Court holds unequivocally that the defendant did not discriminate against the plaintiff and that the plaintiff did not suffer unequal treatment because of his disability thus implicating rights under amendment XXI because that holding may be disputed it has undertaken a "strict scrutiny" analysis of the action taken by the school board. Court believes that strict scrutiny is the proper standard of judicial review if there were discrimination. Daly v. DelPonte 225 Conn. 499 515 (1993).

Strict scrutiny analysis requires state action resulting in unequal treatment to be justified in two particulars. State action can survive constitutional scrutiny only if it (1) serves a compelling state interest and (2) is narrowly tailored to serve that interest. Horton v. Meskill supra 640. Daly 515.

In a "strict scrutiny" analysis the first inquiry is whether the action serves a "compelling state interest."

The plaintiff contends that no compelling state interest was furthered by his firing.

Ostensibly the compelling state interest served by plaintiff's termination was affirmation of the system's 'no use' drug message to students. However this interest hardly qualifies as 'compelling' when as discussed above defendant was concurrently promoting drug rehabilitation to students and teaching them that in the recovery stage of chemical dependency addicts return to work and regain their employer's trust. The arbitrary advancement of one among many lessons of defendant's drug education curriculum does not constitute a compelling state interest that justifies the plaintiff's termination especially when defendant could just as easily have retained him in employment in order to teach students about the recovery stage of addiction. Plaintiff's Brief September 29 1993 p. 24-25. [110].

Court rejects plaintiff's strained position.

He claims his firing served no compelling interest because the "Here's Looking At You 2000" curriculum also contained lessons about those who had failed and what could be done regarding recovery and rehabilitation. Plaintiff claims that advancement of the "NO USE" theme over lessons on recovery and/or rehabilitation somehow establishes that plaintiff's termination served no compelling state interest. Plaintiff's Brief September 29 1993 p 24. [110].

Court faults plaintiff's reasoning. Just because the curriculum recognizes recovery and rehabilitation does not lessen the primary and central "NO USE" focus of the "Here's Looking At You 2000" curriculum. The inclusion of materials on recovery/rehabilitation does not detract from the importance of teaching drug use prevention. The promotion of drug abstinence is a legitimate state interest; it becomes no less important or compelling because the curriculum also includes information on recovery and rehabilitation.

Fostering and emphasizing the "NO USE" message in a consistent way serves a compelling state interest. The central and primary theme of the "Here's Looking At You 2000" curriculum is "NO USE." That is the fundamental to be emphasized. That the curriculum also recognizes other situations and circumstances including that of recovery and rehabilitation does not erode the primary focus NO USE. Inclusion of information on the "recovery/rehabilitation" phase in the curriculum is a recognition that some persons may fail or have failed by not abstaining. Putting education regarding the rehabilitation phase on an equal footing with the primary "NO USE" theme as plaintiff urges would be an invitation to almost certain failure. The drug education program is for the benefit of the students not others including teachers involved in the school system. Plaintiff would have it forgotten the primary and central theme and purpose of the "Here's Looking At You 2000" curriculum is "to prevent children from developing the idea that they can experiment with drugs and not suffer repercussions." Finding 22. By statute substance abuse prevention shall be taught every academic year to all students in all grades in the public schools in accordance with a planned ongoing and systematic program of instruction." C.G.S. 10-16b(a) and 10-19(a). There is no legislative mandate that the curriculum include lessons on recovery and rehabilitation. The contention that advancement of the "No Use" theme is arbitrary because the curriculum also recognizes a rehabilitation and recovery component is without merit.

There is no authority known to this court which defines what a "compelling state interest" is. Nor are there any tests or formulas for determining whether a particular state interest is or is not a compelling state interest.

Over the last quarter century the Supreme Court and the Appellate Court without saying why have held that certain interests were "compelling state interests." This court has reviewed these cases. A brief synopsis of these cases indicating a "compelling state interest" follows. [No distinction is made here between the federal and state constitution equal protection provisions.]

"Highway safety" was deemed a "compelling state interest" in Daly v. DelPonte 225 Conn. 499 (1993). The state may well have a compelling interest in the continued commitment of insanity acquitees whose mental illness makes them dangerous to themselves or others. State v. Metz 230 Conn. 400 425 (1994). The unacceptable ramifications of transferring jail time credit between different offenses is a "compelling state interest." Payton v. Albert 209 Conn. 23 33 (1988). The Supreme Court "acknowledged that protecting the psychological well-being of children is a compelling state interest." State v. Jarzbek 204 Conn. 683 701 (1987). "Preventing political corruption is a 'compelling state interest.' " State v. Proto 203 Conn. 682 710 (1987). Protecting minor children is a "compelling state interest." In re Juvenile Appeal (38-CD) 189 Conn. 276 (1983). "The state's interest in enforcing the separation of powers provision of article second of our constitution is by itself such a compelling and significant governmental interest." Stolberg v. Caldwell 175 Conn. 586 609 (1978). "The state has a compelling interest in protecting Valerie a living child born with a dangerous drug in her system because her mother used that drug eight to ten hours before her birth." In re Valerie D. 25 Conn.App. 586 592 (1991). "The state does have a legitimate interest in protecting and providing redress for children who are victims of sexual abuse or sexual assault." Giordano v. Giordano 39 Conn.App. 183 190 (September 5 1995). "It is true the maintenance of discipline in a prison is a "compelling state interest." Laden v. Warden 169 Conn. 540 547 (1975).

Oddly the State's interest in preserving the "economic and social welfare of the state" was not a "compelling state interest." This holding came in the context of the denial of general assistance benefits to an alien because income of alien's sponsor is deemed available to the alien even if not actually available to the alien. Barannikova v. Greenwich 229 Conn. 664 689 (1994).

This court has not been able to extrapolate any test or formula for deciding what is or is not a "compelling state interest." Perhaps a particular predilection in favor of protecting children may be divined from these cases.

"Education in general holds a unique place in our society and 'is perhaps the most important function of state and local governments.' Brown v. Board of Education 347 U.S. 483 493 74 S. Ct. 686 98 L.Ed. 873." Stolberg v. Caldwell 175 Conn. 586 602-3 (1978).

Court believes that the state's interest in having only qualified people as public school teachers and the state's interest in preventing the ills of drug use by way of education of the young are both compelling state interests. Both these interests are the subject of extensive legislation. Both interests are present and conjoined in this case.

The General Assembly would not have established by statute the elaborate detailed requirements procedure and structure for certifying teachers and removing teachers if the General Assembly didn't believe there was a compelling state interest in having only qualified persons teaching in the public schools. "It is through the teacher that this state's standards of educational excellence are disseminated." Stolberg v. Caldwell 175 Conn. 586 604 (1978).

The education of a community's children is a matter of public interest. See Pierce v. Society of Sisters 268 U.S. 510 534-35 45 S. Ct. 571 573-74 69 L.Ed. 1070 (1925); Lees 632 F.Supp. at 1331. The manner in which a school board hires teachers relates directly to that concern. Mazurek v. Wolcott Board of Education 849 F.Supp. 154 157 (D.Conn. 1994).

In the same vein the manner in which a school board fires teachers relates directly to that concern. The defendant board of education had a duty to remove plaintiff if he was no longer fit to be a teacher. Here the defendant school board based on the Hearing Officer's findings of moral misconduct and "other due and sufficient cause determined plaintiff was no longer qualified to teach in Groton. Court notes again that the plaintiff has conceded his termination was authorized by and complied with the Teacher Tenure Act. C.G.S. 10-151(d). If there were no compelling interest in terminating teachers found unfit, at least five, and perhaps six, of the statutory grounds for terminating tenured teachers would be superfluous. C.G.S. 10-151(d). The State has a compelling interest in having its public school children taught by qualified teachers and, the other side of the coin, eliminating those who are not fit.

Education on drug use prevention is mandated by statute. C.G.S. 10-16(a) and 10-19(a). It would be foolhardy to even suggest that education on drug use prevention serves anything less than a compelling state interest."

The Hearing Officer found that the "Here's Looking At You 2000" curriculum advocates a 'no use' drug and alcohol policy, includes an "effort to help [students] deal with peer pressure regarding drug use its goal is to project a clear and consistent message to students and, that is to prevent children from developing the idea that they can experiment with drugs and not suffer repercussions." Findings 8 13 20 and 22. The Hearing Officer also found that the dominant responsibility of the teacher is to not acknowledge any drug use. Findings 21.

Court holds compelling state interests were served by plaintiff's termination.

The question then is whether the defendant board's action was narrowly tailored to serve those interests. While the board's action was drastic to the plaintiff that does not mean it went beyond that necessary to achieve the compelling state interests.

The record of proceedings before the Hearing Officer does not disclose there was any evidence presented of a course of action narrower or less severe than termination. Such evidence would have been relevant to the issues before the Hearing Officer. Plaintiff chose not to present any such evidence. The Hearing Officer recommended that the plaintiff be returned to his teaching position as of the beginning of the next school year in September 1993. The Hearing Officer made no recommendations regarding any alternatives to his reinstatement recommendation. Plaintiff's suspension as recommended by the Hearing Officer should be treated as a "long term suspension." Plaintiff was suspended with full pay in October 1991. That suspension lasted until the defendant board terminated him on April 7 1993. The plaintiff received full pay during the entire period of suspension. It does not appear from those facts that the Hearing Officer recommended any action other than the loss of pay for the period from April 7 1993 to the end of the school year in June 1993. A less than three month docking of pay hardly helps to "prevent [Groton's school] children from developing the idea that they can experiment with drugs and not suffer repercussions."

In his brief plaintiff claims the defendant board could "have retained him toteach students about the recovery stage of addiction." Plaintiff's Brief September 29 1992 p. 25. Plaintiff no longer claims that should be done. Transcript of Proceedings 8/17/1995 p. 8.

Plaintiff also says "a variety of more narrowly tailored actions were available to defendant such as reinstatement conditioned on continued sobriety and ongoing substance abuse treatment or a transfer to a different school." Transcript of Proceedings 8/17/95 p. 25.

These suggestions for alternative actions reveal a profound miscomprehension of the reason plaintiff was terminated. The defendant board's April 12 1993 letter of termination amply set forth legitimate reasons for its actions.

The Board has concluded that you cannot serve as an appropriate role model for elementary school age children and that you cannot credibly perform that essential function of your job which includes instruction in the 'no use' drug and alcohol policy. Letter dated April 12 1993 from Mary G. Keith Chairman Groton Board of Education to Ronald M. Gedney .

The defendant board could not have concluded that plaintiff's misconduct and its impact on [his] ability to serve as an elementary school teacher would be remedied by his "reinstatement conditioned on continued sobriety and ongoing substance abuse treatment." Each time plaintiff stood in front of a class particularly when teaching abstention from drugs there is a real danger that students would get a subtitle message perhaps subliminal: Do as I say, Not as I do. Plaintiff is a contradiction of the primary and central theme of the Groton "Here's Looking At you 2000" program. While discussing a Rehabilitation Act issue during oral argument before Court plaintiff did state in passing: "He might as a reasonable accommodation even be excused from teaching this curriculum or assigned to another level where he wouldn't have to teach the curriculum." Transcript of Proceedings 8/17/1995 p. 8. Perhaps these suggestions for reasonable accommodations might also be suggestions of narrower actions sufficient to serve the compelling state interests.

Excusing plaintiff from his responsibilities in the "Here's Looking At You 2000" curriculum has not been shown to be an action that was either practical or reasonable. At the least it would involve hiring and paying somebody to do this teaching. Perhaps another teacher from his elementary school could swap classes with plaintiff every time plaintiff's students were scheduled for a "Here's Looking At You 2000" instruction. At the same time plaintiff might take over the teaching of the other teacher's students on whatever topic was scheduled for the same time. This would cause some disruption perhaps minimal. Of course each time this occurred the students from these two classes would be reminded of and have highlighted the reason for the teacher switch plaintiff's failure as and inability to be a suitable role model and exemplar for the students. And it is unrealistic to believe that questions and discussions about drug abuse come up only during the time scheduled for "Here's Looking At You 2000" classes. Students' inquiries and concerns about drugs are apt to come at any time; shouldn't they be addressed immediately? Should Johnny be told to hold his question until next Thursday when Ms. Jones is here? So too what kinds of problems does such a teacher swap raise under the teachers' collective bargaining agreement? These are only some of the questions which are unanswered.

Nor is it self-evident that assigning plaintiff "to another level where he wouldn't have to teach the curriculum" would be problem free. Presumably this means having plaintiff teach on either the middle or high school level. Again the reason for plaintiff's being unsuitable as a teacher is not erased. Groton is not a large sprawling metropolis. His problem is known throughout Groton. Assigning plaintiff to the high school or a middle school in Groton is not going to cover up the facts of his situation. Even if reassigning a teacher with a history like plaintiff's from a school in the north end of the Bronx to a school in the far reaches of Staten Island would cover up that hypothetical teacher's stigma it is most unrealistic to even think such a cover up would work in Groton. Plaintiff has been an elementary school teacher. Presumably he was certified as such. Was he certified to teach on the high school or middle school level? Was there an opening available on either level? Again what if any problems vis-a-vis the collective bargaining agreement are presented near and short term by such a reassignment? And again how does this square with his being unable to be a suitable role model exemplar and the like? Recall plaintiff's fourth grade students who were "disappointed angry mad bad frustrated scared and confused" by plaintiff's conduct and arrest etc. in the fall of 1991 would enter middle school in September 1993 less than five months from the time the defendant board decided to terminate him. And three short years later they would be in high school. In either school they are sure to encounter plaintiff if he were so reassigned. And again how does this square with his being unable to be a suitable role model exemplar and the like?

Perhaps the existence of these and like questions and surely many more persuaded the plaintiff not to make any presentation on supposed narrower actions in this court.

Evidence of proposed narrower actions would come within the purview of C.G.S. 10-151(f)'s evidence "necessary for the equitable disposition of the appeal." No evidence on the topic was offered at Court hearing on this case. Transcript of Proceedings August 17 1995. As on any claim the party relying on a proposition of law has the burden of establishing the facts on which his legal claim is based. Branch v. Occhionero 239 Conn. 199 206 (August 20 1996). There is no evidence in the record upon which Court could find there was a narrower avenue available to the defendant board by means of which the compelling state interests could have been served and protected.

The plaintiff did not present any evidence of any other action the board could have taken to satisfy its and the state's compelling interests and would fit the asserted "narrow tailoring" requirement. Court infers that plaintiff knew of none. Neither does Court.

Court holds that the plaintiff has not suffered any violation of rights afforded by amendment XXI of the constitution of Connecticut.

Based on the foregoing the plaintiff's appeal is dismissed.