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In re Tenure Hearing of Donahue

March 3, 2008


On appeal from a Final Decision of the State Board of Education, 25-06.

Per curiam.


Argued January 28, 2008

Before Judges Lintner, Sabatino and Alvarez.

Darlene Donahue, a tenured librarian-media specialist employed by the Pemberton Township Board of Education (District) at the Newcomb Middle School, appeals a final decision of the State Board of Education (State Board). The State Board found that the record fully supported the Administrative Law Judge's (ALJ) conclusions that Donahue engaged in conduct unbecoming a public school teacher, and affirmed the Acting Commissioner of Education's (Commissioner) decision dismissing Donahue from her tenured employment. Donahue appeals and we affirm.

Donahue was employed at Newcomb Middle School for approximately thirteen years, until tenure charges were filed against her in May 2003. Her duties included "running the operation of the educational media center and handling selection of books, cataloguing, instructing students in research skills [and] Internet skills[, and] . . . working with both students and teachers in helping with projects of a research nature." According to Donahue, she was also responsible for screening both books and videos to ensure that they "were grade appropriate, content appropriate for . . . students."

In October 1998, the District adopted Policy No. 2361, entitled "ACCEPTABLE USE OF COMPUTER INTERNET/COMPUTERS AND RESOURCES" (computer policy). Daniel Bevilacqua, the District's Director of Personnel, described the computer policy as a comprehensive document that outlines an agreement providing a privilege to employees for the use of Internet access and E-mail, and calls it out as a privilege, in that it details the do's and don'ts, if you will, and the appropriate protocols and procedures to be followed in the event of a determination of inappropriateness. It also clearly spells out that it . . . shouldn't be used for lobbying and political purposes and inappropriate access, and that it is signed by the employee upon an orientation in the District.

All existing "employees signed [the] document before any Internet access was ever made available."

Section L.8 of the computer policy prohibits students and teachers from accessing inappropriate material and states:

a. Users will not use the District system to access material that is profane or obscene (pornography) that advocates illegal acts, or that advocates violence or discrimination towards other people (hate literature). For students, a special exception may be made for hate literature if the purpose of such access is to conduct research and access is approved by both the teacher and the parent. District employees may access the above material only in the context of legitimate research.

b. If a user inadvertently accesses such information, they should immediately disclose the inadvertent access in a manner specified by their school. This will protect users against an allegation that they have intentionally violated the Acceptable Use Policy.

Section L.4 of the computer policy restricts employees' use of the District's e-mail:

a. Restrictions against Inappropriate Language apply to public messages, private messages, and material posted on Web pages.

b. Users will not use obscene, profane, lewd, vulgar, rude, inflammatory, threatening, or disrespectful language.

At the time the District was preparing to use the Internet, Kathy Bernacki, the District Information Officer "responsible for the infrastructure of the network" and "procurement of all software and hardware related to both instructional applications as well as administrative applications," "visited each school in the District . . . [and] presented the Internet use policy in the form of a Power Point presentation." According to Bernacki, the faculty was advised that "if there was inadvertent access, the teacher or staff member should notify [her] directly immediately." At the conclusion of Bernacki's presentation, employees were asked to review a copy of the computer policy and, if they agreed to it, sign and return the policy so that a user account could be set up for them. Donahue signed the computer policy on November 4, 1998, and a user account was created for her.

On Friday, October 11, 2002, an English teacher at Pemberton Township High School contacted Bernacki to inform her that an inappropriate website needed to be blocked by the District's Internet filter. Bernacki located Lori McMillan, the District's Network Engineer, and asked her to add the website to the filter. That evening, McMillan remotely accessed the District's server from her home computer so that she could block the website. After adding the website to the filter, McMillan went through the user activity log and noticed a pattern of activity from the IP address associated with the circulation desk computer located behind the counter in Newcomb Middle School's library.

On Tuesday morning, October 15, 2002, McMillan informed Bernacki of her discovery. Both Bernacki and McMillan went to look at the computer to "make sure that the time on the computer was set appropriately" and that it matched up with the activity shown on the logs.

Bernacki discovered that the computer's history revealed "sites that were []obviously inappropriate in nature based on the names of the sites." There were also "inappropriate sites bookmarked on the Favorites" link in the Internet toolbar. Bernacki determined that the computer was "a threat to any staff that would have been in the library or students that were in the library." She and McMillan removed the computer from the library and brought it back to McMillan's office.

Using the Surfer Watch filtering program and Super Scout software, McMillan obtained a "User Activity Detail" report for the computer covering a seven-day period, including October 9, 10, and 11, 2002. McMillan was unable go back any further because "[t]he logs rotate every 7 days" and essentially "write over" the data amassed during each prior seven-day period. McMillan and Bernacki accessed approximately fifty-two of the questionable websites that she described as "inappropriate" because they included words such as "sexy blondes, hard core porno, sex pictures," "100 percent adult sex positions," "bound brunettes," "Top 3 nude, [and] beautiful teen brunette pussy girls picks." Accessing the computer's Internet history file, McMillan found a list of websites that had been visited up to the date the computer had been removed. The following are just a few of the many websites on that list:





The "Favorites" folder, which is used to intentionally save links for faster access included the following websites:

* Yahoo! Society and Culture - Sexuality

* Yahoo! Society and Culture - Sexuality Activities

* Men's Health Men's Guide to Fitness, Health, Sex . . .

McMillan testified that the information under the "Favorites" folder "corresponded" with the computer's "history as well [as] with the logs."

McMillan and Bernacki were also able to determine from cookies found on Donahue's login name that Donahue had accessed the Internet sites. Searching the computer's e-mail files, they found the ...

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