Ontario College of Teachers v Naklicki, 2015 ONOCT 62

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Naklicki, 2015 ONOCT 62 Date: 2015-07-14

IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;

AND IN THE MATTER OF a discipline proceeding against

Mark Leonard Naklicki, OCT, a member of the Ontario College of Teachers

PANEL: Wes Vickers, OCT, Chair Jean-Luc Bernard, OCT Irene Dembek, OCT

BETWEEN: )

) Alyssa Brierley,

) Legal Counsel,

ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers

• and - )

) Heather Alden,

MARK LEONARD NAKLICKI ) Ontario Secondary School Teachers’

(CERTIFICATE # 456584) ) Federation,

) for Mark Leonard Naklicki

) Julie Maciura,

) Steinecke Maciura LeBlanc,

) Independent Legal Counsel

) Heard: June 8, 2015

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on June 8, 2015 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1) dated January 20, 2015 was served on Mark Leonard Naklicki (the “Member”) requesting his presence on March 6, 2015 to set a date for a hearing and specifying the charges. The hearing was subsequently set for June 8, 2015.

The Member was in attendance at the hearing.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing are as follows:

IT IS ALLEGED that the Member is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act, 1996 (the “Act”) in that:

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) he failed to supervise adequately a person who is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11);

(c) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(d) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and

(e) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

Counsel for the College tendered the Membership Information for Mark Leonard Naklicki (Exhibit 2), which indicates that the Member has held a Certificate of Qualification and Registration since 2002 and that he was registered with the College during the period of the alleged events.

MEMORANDUM OF AGREEMENT

Counsel for the College advised the Committee that an agreement had been reached between the parties and introduced a Memorandum of Agreement (Exhibit 3) dated March 25, 2015 (the “MOA”), which is reproduced below:

Agreed Statement of Facts

The parties hereby agree to the truth and accuracy of the facts that are hereinafter expressed and agree to the receipt of this document by the Discipline Committee.

1. At all material times, the Member was employed by the Algoma District School Board (the “Board”) as an [XXX] teacher at [XXX] School (the “School”).

2. Mark Leonard Naklicki is a member of the College in good standing.

3. On January 19, 2013, the Member was found by the Principal alone in a classroom with the door closed working on a teacher’s computer after sending his only student to be supervised by another teacher in the library. The Member had mistakenly believed he was permitted to send the student to the library while he waited to see if any other students would show up to the class late.

4. On March 26, 2013, the Member was found in the staff workroom on a computer checking email when he was assigned to hall duty. According to the Member, he was checking to see if he had received any emails from Hamilton Continuing Care Nursing Home updating him about his mother’s new and serious health complications and maintains that this was during the final two minutes of his hall duty.

5. On November 25, 2013, the Member was standing approximately 2 metres outside of his classroom door talking with another teacher. A student subsequently reported to the principal that she had been assaulted by two boys while the Member was outside of the classroom. The Member maintains that he could see into a portion of the classroom from his vantage point in the adjoining room and that the teacher with whom he was speaking was the teacher from whom he was taking over and they were discussing the classroom assignment. The Member further maintains that he was not advised of such an incident when he entered the class after speaking to the other teacher.

6. According to the Member, in a meeting with the school board and upon learning that a student reported that she was assaulted during his class, he immediately apologized and acknowledged his actions were inappropriate. He maintains that he offered to apologize to the student and her family and that he also volunteered to take any course in professional duties and classroom management suggested or recommended by the Board, but that the Board did not respond and/or take up the Member on either offer.

7. On February 4, 2014, the Member voluntarily resigned from his employment with the Board. According to the Member, his resignation was motivated by his intention to move to Toronto to be near his family.

8. On August 19, 2014, the Member voluntarily completed a course in Classroom Management.

9. By this document, the Member pleads guilty to professional misconduct as alleged in the Notice of Hearing, issued on January 20, 2015.

10. The Member voluntarily admits the above particulars, for the purpose of this proceeding only, and understands that by doing so, he is waiving the right to require the College to prove the case against him and the right to a contested hearing.

Joint Submission on Resolution

The Parties agree to resolve the matter as follows:

11. the Parties agree and undertake that upon ratification of this MOA, there shall be no further action taken in this administrative proceeding, no appeal of any or all of the terms of this agreement, and no application for judicial review, providing the terms of this MOA are adhered to;

12. the Parties agree and understand that if any phrase or paragraph of this MOA is deemed null and void, the MOA shall be read as though the phrase or paragraph that was stricken from the MOA and the amended MOA shall remain in force and effect;

13. the Member agrees and understands that upon ratification of this MOA, the Discipline Committee shall find him guilty of professional misconduct and he shall receive a reprimand from the Committee;

14. the Member agrees and understands that for the purpose of considering this matter, the Discipline Committee will be provided with this MOA and the Notice of Hearing, which will be marked as Exhibits and will constitute the evidence upon which the guilty plea will be accepted, the finding of guilt or finding will be made, and the penalty or order will be imposed;

15. the Member shall appear before the Committee immediately following the hearing of this matter to receive a reprimand, and the fact of the reprimand is to be recorded on the College’s public Register. The reprimand shall be delivered at the offices of the College located at 101 Bloor Street West, Toronto, Ontario;

16. the Member agrees and undertakes to, within 90 days of commencing employment where a certificate of qualification and registration is required, successfully complete, at his own expense, a course(s) of instruction of no more than four hours covering classroom management, pre-approved by the Registrar. The Member’s Certificate of Qualification and Registration will be subject to Terms, Conditions and Limitations;

17. the Member agrees and undertakes to provide the Registrar with written confirmation of his successful completion of this course(s), prepared by the course practitioner(s), within 30 calendar days of completion. The course practitioner will also confirm that he/she reviewed the Decision, Reasons and Orders of the Discipline Committee and MOA before commencing the course and that, based on his/her interactions with the Member, he/she is satisfied that the Member understands that his/her conduct was inappropriate;

18. the Member agrees and understands that upon ratification of this MOA, a notation shall be placed on the Public Register, maintained by the Registrar, in accordance with section 23 of the Ontario College of Teachers Act, 1996. This information will also be contained on the Certificate of Qualification and Registration, public register, and Statement of Professional Standing. There may be amendments made to these documents and the Public Register to reflect this agreement between the Parties, including amendments to the Member’s Status, Status History and Terms, Conditions and Limitations;

19. the Member agrees and understands that the College shall publish a summary of the complaint and its resolution as contained in this MOA. Such publication shall be made in the College’s official publication, Professionally Speaking/Pour parler profession, on the College web site, and in any other manner the Registrar deems appropriate. The Discipline Committee shall determine whether such publication shall include the Member’s name;

20. the Member agrees and understands that upon ratification of this MOA, the College shall make the Decision and Reasons of the Discipline Committee available for review by the public in the College’s Margaret Wilson Library, on the College’s website and in any other forum the Registrar deems appropriate;

21. the Member agrees and understands that upon ratification of this MOA, the College may submit a copy of the Decision and Reasons of the Discipline Committee to Quicklaw and/or any other on-line legal database;

22. the Member agrees and understands that this MOA is the entire agreement between him and the College and that there have been no oral or written representations made by the College as an inducement or threat to enter into this MOA; and

23. each party may sign a separate copy of this MOA which, when so signed and delivered, shall be an original copy even though not signed by the other parties. All such separately signed copies shall together constitute evidence of all parties’ consent to be bound by this agreement.

DECISION

Having examined the exhibits filed, and based on the MOA, the Member’s guilty plea and the submissions made by Counsel for the College and Counsel for the Member, the Committee ratifies the MOA. The Committee finds that the Member committed acts of professional misconduct as alleged, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(11), 1(15), 1(18) and 1(19).

REASONS FOR DECISION

The Member agreed to the truth and accuracy of the facts contained in the MOA and waived his right to require the College to prove the case against him. The Committee accepts the particulars set out in the MOA as well as the Member’s guilty plea and finds the Member guilty of professional misconduct.

The Member acknowledged that, on three occasions in 2013, he did not perform his duties while teaching at the School. One incident involved sending the only student in his classroom to the library to be supervised by another teacher. The second incident involved the Member using a computer in the staff workroom when he was supposed to be on hall duty. The final incident involved a student being assaulted in the classroom while the Member was outside of the classroom door talking to another teacher. In all three incidents, the Member attempted to provide an explanation for his conduct and his lack of supervision.

The Committee finds that the Member’s pattern of behaviour was unprofessional, that he failed in his duty to supervise and that his conduct was unbecoming a member of the teaching profession. Although the Member provided an explanation for each incident of misconduct and immediately took responsibility when he was told by the Board that a student had reported that she was assaulted during his class, the Member should have been providing adequate supervision to his students at the time of the incidents, and his failure to do so was in breach of his professional obligations.

The Committee further finds that the Member failed to maintain the standards of the teaching profession when he did not carry out his assigned hallway duties. Despite the Member’s claim that he only left the hallway for the last two minutes of his hall duty assignment, this conduct once again demonstrated a lack of professional judgment and a disregard for his teaching duties.

The Committee therefore accepts the agreement of the parties and finds that the Member committed acts of professional misconduct as alleged, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).

SUBMISSIONS ON PUBLICATION

Submissions of Counsel for the College

Counsel for the College submitted that publication with the Member’s name, in the official publication of the College, Professionally Speaking/Pour parler profession is warranted in this case. Counsel for the College explained that publication with name responds to the following three penalty objectives: general deterrence, specific deterrence, and protection of the public interest by ensuring accountability and transparency.

Counsel for the College submitted that publication with the name of the Member will inform members of the profession that inappropriate behaviour is taken seriously by the College, and will accordingly serve as a general deterrent. Publication with name serves as a specific deterrent by motivating the Member to never commit any further acts of professional misconduct which would require him to appear before the Committee.

Finally, publication with name upholds the principles of transparency and accountability. According to College Counsel, not only must justice be done; it must also be seen to be done. In other words, publishing the name of the Member in the College’s official publication is important because it informs the public and other members of the profession that matters before the Committee are resolved in an open and transparent manner.

Submissions of Counsel for the Member

According to Member’s Counsel, publication with the name of the Member is unnecessary since the summaries contained in the College’s official publication provide a link to the Committee’s decision, and because the fact that the Member received a reprimand will be noted on the College website for three years.

Member’s Counsel submitted that the following mitigating factors should weigh against publishing the Member’s name: the Member acknowledged his guilt and agreed to receive a reprimand and to take additional coursework; the Member is not at risk to reoffend as each incident of misconduct has not been repeated; and publication with name would hinder the Member’s future attempts at resuming his teaching career.

Counsel for the Member referred the Committee to four cases involving members who committed more serious acts of professional misconduct than the Member, and where publication without name was ordered. Counsel for the Member submitted that ordering publication with the name of the Member in this case would not be in line with these precedents.

Reply Submissions of College Counsel

In reply, College Counsel submitted that the cases relied upon by Member’s Counsel were out-of-date and urged the Committee to consider the College’s more recent cases when deciding whether to order publication with the name of the Member.

RESOLUTION

1. The Member is directed to appear before the Committee immediately following the hearing of this matter to receive a reprimand, and the fact of the reprimand is to be recorded on the Register of the College (the “Register”).

2. The Registrar is directed to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled:

(a) within 90 days of commencing employment where a Certificate of Qualification is required, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding classroom management, which course is not required to be longer than four hours in duration;

(b) within 30 days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course provider stating that:

(i) he or she reviewed a copy of the MOA and the Decision, Reasons for Decision and Orders of the Discipline Committee prior to the commencement of the course;

(ii) he or she is satisfied that the Member understands that his conduct was inappropriate; and

(iii) the Member has successfully completed the course.

3. The findings and orders of the Committee shall be published in summary form, without the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.

REASONS FOR RESOLUTION

The Committee carefully considered and accepts the Joint Submission on Resolution. The Committee finds that the reprimand and coursework are appropriate resolutions for misconduct of this nature, and satisfy the objectives of specific deterrence and rehabilitation of the Member. The reprimand allows the profession to express its concerns to the Member about his misconduct and it serves as a specific deterrent. The coursework regarding classroom management will help the Member to remediate his behaviour and to better understand his responsibilities as a member of the teaching profession.

The Committee further finds that publication with the name of the Member is not warranted in this case. While transparency of the discipline process remains an important concern for the Committee, given the circumstances of the Member’s case, the Committee finds that publication without name is appropriate. There were several mitigating factors in this case that weighed against publication with name. Once the Member was told about the reported incident of assault, he showed his professionalism by immediately apologizing and acknowledging that his actions were inappropriate, he volunteered to take a course in classroom management, and he also offered to apologize to the student and her family. The Member was also cooperative throughout the disciplinary process and admitted his guilt, which conserved significant time and judicial resources. The Committee therefore orders that there be publication in summary form, without the name of the Member in the official publication of the College, Professionally Speaking/pour parler profession.

In these circumstances, the Committee is satisfied that the reprimand, coursework and publication, without name, is sufficient to deter this Member while serving and protecting the public interest.

Date: July 14, 2015

Wes Vickers, OCT

Chair, Discipline Panel

Jean-Luc Bernard, OCT

Member, Discipline Panel

Irene Dembek, OCT

Member, Discipline Panel