DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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
Kristen Michelle Tamburrino, OCT, a member of the Ontario College of Teachers.
PANEL: Robert Gagné, Chair Irene Cheung, OCT Stéphane Vallée, OCT
BETWEEN: Zirka Jakibchuk, for the Ontario College of Teachers
ONTARIO COLLEGE OF TEACHERS – and – KRISTEN MICHELLE TAMBURRINO (CERTIFICATE #439280) Kristen Michelle Tamburrino, Self-represented
Erica Richler, Steinecke Maciura LeBlanc, Independent Legal Counsel
Heard: May 27, 2016
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on May 27, 2016 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated March 4, 2016 (Exhibit 1) was served on Kristen Michelle Tamburrino (the “Member”), requesting her presence on March 22, 2016 to set a date for hearing, and specifying the charges. The hearing was subsequently set for May 27, 2016.
The Member was in attendance for the hearing and was self-represented.
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) she failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
b) she 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);
c) she 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
d) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
AGREED STATEMENT OF FACTS
Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced an Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:
Kristen Michelle Tamburrino is and was at all material times a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.
At all material times, the Member was employed by the District School Board of Niagara (the “Board”) as a secondary school teacher at St. Catharines Collegiate Secondary School in St. Catharines, Ontario.
At all material times, Person A was [XXX]and [XXX] of the Member. Person A is [XXX] also.
Between November 25, 2013 and January 10, 2014, the Member took Person A’s bank card without his consent and used it to withdraw a total of approximately $1,140.00 from his bank account.
On or about February 7, 2014, the Member was arrested and charged with fraud not exceeding $5,000/specific victim contrary to section 380(1)(b) of the Criminal Code of Canada (“Criminal Code”). Shortly thereafter, the Member was charged with possession of property obtained by crime not exceeding $5,000 (“possession under”) contrary to section 355(b) of the Criminal Code.
Following the Member’s arrest, the Board placed the Member at home with pay from February 7 to 25, 2014. Attached hereto and marked as Exhibit “B” is a copy of the letter from the Board to the Member to this effect.
The Board decided not to investigate after determining that this was not a school-related matter. However, the Member was administratively transferred to A.N. Myer Secondary School, effective February 25, 2014. Attached hereto and marked as Exhibit “C” is a copy of the letter from the Board to the Member regarding the transfer. The Member is now teaching Alternative Education with the Board at the St. Catharines site.
On or about October 1, 2014, the Member pleaded guilty to the “possession under” charge. She received a conditional discharge and was placed on probation for 12 months. The fraud charge was withdrawn. Attached hereto and marked as Exhibit “D” is a copy of the Ontario Court of Justice Adult Probation Order with respect to the Member.
GUILTY PLEA
By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1-8 above (the “Admitted Facts”).
The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against her, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(15), 1(18) [unprofessional], and 1(19).
By this document the Member states that:
(a) she understands fully the nature of the allegations against her;
(b) she understands that by signing this document she is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;
(c) she understands that by pleading guilty to the allegations, she is waiving the right to require the College to prove the case against her and the right to have a hearing;
(d) she understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to her name, may be published in the official publication of the College;
(e) she understands that any agreement between her and counsel for the College with respect to the penalty proposed in this document does not bind the Discipline Committee;
(f) she understands and acknowledges that she is executing this Agreement voluntarily, unequivocally, and without the advice of legal counsel.
- In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.
DECISION
Having considered the Agreed Statement of Facts and Guilty Plea, and the submissions of the parties, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that the Member committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) [unprofessional] and 1(19).
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 8 of the Agreed Statement of Facts and Guilty Plea and pleaded guilty to the allegations of professional misconduct against her. She acknowledged and the Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) [unprofessional] and 1(19).
Paragraphs 4, 5 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).
Paragraphs 4, 5 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member 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).
Paragraphs 4, 5 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).
Paragraphs 4, 5 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
JOINT SUBMISSION ON PENALTY
Through a Joint Submission on Penalty (Exhibit 3), Counsel for the College and the Member jointly submitted that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:
direct that the Member appear before the Committee immediately following the hearing of this matter to receive a reprimand, which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”).
direct the Registrar 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 the date of the Decision, Reasons for Decision and Order of this Committee, the Member shall enrol in and successfully complete at her own expense, a course of instruction, pre-approved by the Registrar, regarding ethics;
(b) within 30 days of her 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 has reviewed a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee; and
(ii) the Member has successfully completed the course.
- direct that there be publication of the finding and order of the Committee in summary form, in the official publication of the College, Professionally Speaking/Pour parler profession. The parties have not agreed on whether or not the Member’s name should be included and submissions will be made on that issue.
SUBMISSIONS ON PUBLICATION
Submissions of College Counsel
College Counsel submitted that publication with the name of the Member is warranted in this case. The conduct of the Member is serious; she stole $1,140 from Person A’s bank account. Furthermore, the incident occurred over a period of time between November 25, 2013 and January 10, 2014. Publication with the name of the Member serves as a specific deterrent to the Member and as a general deterrent to the profession. College Counsel added that the Committee’s denunciation of the Member’s dishonest conduct through the publication of her name demonstrates to the public that acts of professional misconduct attract serious consequences. Moreover, publication with the Member’s name is important, according to College Counsel, because it meets the principles of transparency and accountability by informing the public and other members of the profession that matters before the Committee are resolved in an open and transparent manner.
College Counsel referred the Committee to four cases involving inappropriate conduct by a member: Ontario College of Teachers v. McEwen, 2014 LNONCTD 100; Ontario College of Teachers v. Desjardins, 2015 LNONCTD 90; Ontario College of Teachers v. Scolaro, 2014 LNONCTD 127; and Ontario College of Teachers v. Patterson, 2014 LNONCTD 109. College Counsel submitted that these cases were similar to the Member’s case and that publication with name was ordered in all of these instances.
Submissions of the Member
The Member submitted that publication of her name in the College’s official publication is not warranted in this case. The purposes of penalty, including specific deterrence, general deterrence, and transparency will be achieved without publishing her name and there is no value added by publishing her name in the College’s official publication. She already faced the consequences of her action in the legal system, which she described as one of the worst things that she has ever experienced, and she submitted that this should serve as sufficient specific deterrence. The Member has had to work to repair relationships with colleagues, students and the community. The Member was transferred administratively as a result of her conduct.
Moreover, publication with name would prejudice the Member as she attempts to re-establish her teaching career. The Member submitted that her misconduct was an isolated incident in her 14-year career as a teacher and that two years have passed since the incident occurred. She stated that she continues to successfully teach, coach, and participate in professional development. Furthermore, her misconduct was not in any way related to students. In addition, the Member acknowledged responsibility for the criminal conduct, but argued that it was at the low end of the spectrum of professional misconduct.
The Member also described her [XXX] She explained that she and Person A had [XXX], and she described Person A as being [XXX]. The Member argued that by publishing her name, Person A would also be identified.
The Member referred the Committee to three cases: Ontario College of Teachers v. Blanchard, 2012 LNONCTD 17; Ontario College of Teachers v. Bozin, 2014 LNONCTD 32; and Ontario College of Teachers v. Hethrington, 2011 LNONCTD 25. According to the Member, the Committee should follow these precedents in which the members’ names were not published in Professionally Speaking/Pour parler profession.
Reply Submissions of College Counsel
In reply, College Counsel submitted that the cases presented by the Member were distinguishable because they were unrelated to her conduct, and urged the Committee not to rely on these cases.
College Counsel further noted that the submissions of the Member with respect to the impact that publishing her name would have on her teaching career were speculative and unsupported by any evidence. College Counsel submitted that, while it may be understandable for the Member to not want her name published, no Member ever wants their name published. College Counsel acknowledged, however, that publication of a member’s name probably has more of an impact on teachers who are still actively teaching.
With respect to the Member’s personal history with Person A, College Counsel submitted that the Committee received no evidence of a link between the Member’s personal issues, including [XXX], and her misconduct.
Finally, with respect to the Member’s submission that publishing her name might also reveal the identity of Person A, College Counsel argued that the College goes to great lengths to redact documents so that individuals, such as Person A, will not have their identity disclosed. College Counsel submitted that Person A’s identity should not be obvious to someone reading the Member’s name in the College’s official publication.
Reply Submissions of the Member
The Committee permitted the Member to make brief reply submissions. The Member clarified that she was conditionally discharged and not convicted of her criminal charge. The Member also argued that there was a big difference between the theft of Board funds and the theft of personal funds.
Further Reply Submissions of College Counsel
College Counsel argued that the Member pleaded guilty and was given a conditional discharge. College Counsel submitted that the misappropriation of the funds was done in a school setting and from a [XXX].
LEGAL ISSUES
The Member sought to introduce new evidence during her submissions, in the form of a medical note from her physician dated May 1, 2016, to support her position that the Committee should not order the publication of her name in Professionally Speaking/Pour parler profession. College Counsel, however, objected to the introduction of new evidence at this stage of the proceedings, and submitted that this evidence had never before been provided to the College. The Committee upheld College Counsel’s objection and did not admit the new evidence at this late stage of the proceedings, but permitted the Member to make submissions regarding the medical note.
Although the Member made submissions regarding the content of the medical note, the Committee gave little weight to these submissions about the Member’s medical history, which were not supported by any admissible evidence.
PENALTY DECISION
The Committee accepts the Joint Submission on Penalty presented by the parties and makes an order in accordance with its terms, as set out above. With respect to the issue of publication, the Committee directs that there be publication of a summary of the finding and order of the Committee in the official publication of the College, Professionally Speaking/Pour parler profession, with the name of the Member.
REASONS FOR PENALTY DECISION
The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of justice or the discipline process into disrepute. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case.
The Committee finds that the Member’s dishonest and illegal conduct warrants a reprimand by her peers. The reprimand will allow the Committee to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.
The Committee finds that the course of instruction regarding ethics will assist in the rehabilitation of the Member. The coursework will remind the Member of her obligations as a member of the teaching profession and will help her to make better decisions moving forward.
The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted. The aggravating factors outweigh the mitigating factors in this case. Notwithstanding the mitigating factors, including the Member’s untarnished prior and subsequent teaching record, her guilty plea (which avoided the need for a lengthier and costlier contested hearing), and her demonstrated remorse and accountability, the Member stole from [XXX] over the course of several months. The Member’s “possession under” criminal offence is serious and, despite her purported [XXX] with Person A, her conduct is inexcusable based on the evidence before the Committee. Publication with name is therefore appropriate under the circumstances.
Publication with the name of the Member identifies to the profession the serious nature of the Member’s misconduct and the consequences of such behaviour. Publication with name acts as a specific deterrent to the Member as it holds the Member accountable for her actions. It also serves as a general deterrent by reminding the profession that such behaviour is not tolerated. Moreover, publishing the Member’s name ensures the transparency of the discipline process and reassures the public that the College acts decisively and does not shield its members when matters of this nature are brought to its attention.
The Committee is satisfied that the penalty is appropriate in the circumstances and serves to protect the public interest.
Date: June 22, 2016
Robert Gagné Chair, Discipline Panel
Irene Cheung, OCT Member, Discipline Panel
Stéphane Vallée, OCT Member, Discipline Panel