EagleTribune.com, North Andover, MA

August 22, 2013

City's decision to fire teacher upheld

Arbitrator: Termination justified despite not-guilty finding at Francescone's trial

By Shawn Regan
sregan@eagletribune.com

---- — HAVERHILL — An independent arbitrator has upheld the city’s decision to fire former Whittier Middle School teacher Daniel Francescone.

The ruling, which followed closed-door hearings this summer, said Francescone, 43, was fired by Superintendent James Scully for misappropriating school money, lying to school officials, conduct unbecoming a teacher, incompetency and insubordination.

Francescone taught science and history at Whittier Middle School for 13 years, and is a longtime Haverhill youth baseball coach. He was fired in May 2012 after a jury found him not guilty of stealing money from student fundraisers and activity accounts.

School officials and police accused Francescone of stealing money from four school dances, from a lollipop fundraiser for student field trips, and from the school store — all during the 2011 school year.

Asked for comment earlier this week, Francescone’s union lawyer Thomas Guiney said he had not seen the decision. A reporter then emailed Guiney a copy of the decision and again asked for comment on Francescone’s behalf. Guiney did not respond to that email.

City Solicitor William Cox said Francescone can appeal the arbitrator’s decision to Superior Court, but only on a legal issue. The facts found by the arbitrator cannot be appealed, Cox said.

A science teacher at Whittier since 1999, Francescone also coached school sports, organized school dances and ran the National Honor Society and school store.

In denying Francescone’s appeal, Philip Dunn, an arbitrator with the American Arbitration Association, said he found “clear and convincing evidence” that Francescone was responsible for misappropriating school money and committing a variety of “non-criminal misdeeds,” for which the school district was justified in terminating his employment, the decision said.

The decision said the standard of proof applied at Francescone’s trial — proof beyond a reasonable doubt — “is a significantly higher burden of proof than the one which the employer must meet in order to have just cause for termination.”

The decision said some of the more serious charges of misconduct against the teacher involved misdeeds that were not criminal in nature, but that if proven are grounds for discipline up to termination. Those lesser misdeeds included failing to obey multiple directives from the Whittier principal and senior school administrators.

According to the ruling, Francescone continued the following practices despite being told to stop: Having students eat lunch in his classroom; ordering food from sub shops; covering a glass panel to his classroom to block views of the inside first with “frost” and then with red construction paper; taking students off school grounds without signed parental permission slips; paying a school disc jockey with cash instead of using a school check and obtaining receipts; obtaining approval before using a school credit card to buy food and supplies for fundraisers; taking school money home; keeping large amounts of cash in his classroom closet, and not turning it in to the main office at the end of each day so it could be put in a safe.

The ruling said Francescone’s testimony at his appeal hearing differed sharply from “a large number of witnesses” and that the arbitrator “almost exclusively credited the testimony of the employer’s witnesses.”

The decision said none of the witnesses started out with animosity toward Francesonce and noted that several witnesses were at one time close friends with the teacher at school and in their families’ personal lives.

“It is implausible that all these witnesses had mis-perceived or mis-remembered these various events in question, or worse, were conspiring to collectively lie as to support the grievant’s termination,” the decision said.

The list of witnesses who testified for the school district, according to the decision, included: Whittier Principal Toni Donais, former principal Beth Kitsos, Whittier teacher Jean Torrisi, PTO leader Christine Buco, custodian Luis Gonzales and police detective Joseph Benedetti.

In a written statement on the decision, Scully thanked the city’s legal team, police and school staff involved in the case for their “diligence and professionalism” in handling the matter.

“Since coming to Haverhill as superintendent, it has been my position to do what is in the best interest of students, the school system, and the city of Haverhill,” Scully’s statement said, in part. “Often I receive much pressure to approach such matters less aggressively, however, if I relent, there may be times that the best interests of children will not be represented.

“It has been and will continue to be my intention to hold the staff of the Haverhill Public Schools to the highest standards of ethical behavior,’’ the statement continued. “I want to thank so many of our employees who strive every day to uphold high ethical standards and keep the students of the HPS foremost in their daily mission.”

While the school district alleged that Francescone committed “a wide variety of misdeeds,” the ruling said the arbitrator focused on one factual area to support Scully’s decision to fire him: That in the fall of 2010 Donais showed a Power Point presentation to all school staff including Francescone that “clearly informed and directed the staff that all money must be turned in to the office at the end of each school day” and “that no money should be in classroom closets at any time.”

The decision said that on Oct. 18, 2011, Donais heard that Francescone was keeping large amounts of cash in his closet. The principal then directed custodian Gonzalez to go with her and open Francescone’s closet, where she found more than $1,000 in cash. A week later, Donais and then-School Department Finance Director Kara Kosmes told Francescone that storing money in his closet was a violation of policy and state law and advised him not to do it again. Despite that warning, school officials would later find hundreds of dollars in Francescone’s closet on several occasions, the decision said.

Francescone was also found to have taken large amounts of money home from school dances and other activities without permission or accounting for the cash, reports said. Several times, money in Francescone’s control was found to have gone missing, reports in the case said.

The arbitrator’s decision said the “last straw” that led to Francescone’s prosecution for theft, and eventually his termination, came after a reunion dance Nov. 19.

“Rather than turn in all the monies which had been collected from the refreshment table, the record evidence clearly and convincingly establishes that (Francescone) took about $150 in cash and walked out of the dance with that cash, announcing that he was going out to eat with some of the graduates who had returned for the dance,” the decision said. “Then when questioned the next day about the missing cash, he presented a series of claims which he knew were untruthful ... One can only speculate what (Francesone) did with the missing $150.”

The ruling speculates whether Francescone felt it was his right to use some of the missing money to treat some of the returning students to dinner.

“It does appear that Mr. Francescone felt it was within his sole discretion to expend student activity funds in whatever way he deemed appropriate, without any documentation or accounting to anyone,” the decision said. “If that is what happened, he unquestionably violated the firm and clear directives” of school officials,’’ it said.

The decision concludes by asserting that Francescone’s disregard for school policies and directives put him at risk for accusation, which “in fact came to harsh fruition when criminal charges were filed against him and he had to go through a criminal trial.”

“The Whittier School and Haverhill Public Schools collectively were placed at risk as well — at risk of being dragged through a senseless scandal about financial mismanagement,” the ruling said.

Francescone Decision