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Colonial Intermediate Unit 20 is challenging in Pennsylvania Commonwealth Court an arbitrator's ruling suspending instead of firing a teacher accused of mistreating a special-needs student.

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Colonial Intermediate Unit 20 is in a legal battle to prevent a special-education teacher accused of hanging signs on his disabled student from returning to the classroom.

The agency has appealed an arbitrator's decision to suspend the teacher and issue back pay, instead of firing him as IU-20 officials approved. The matter is awaiting a ruling by Pennsylvania Commonwealth Court.

In 2011, the IU-20 board of directors voted to fire Colonial Academy life skills teacher Bruce Millheim after staff reported in October of that year that Millheim hung a sign around a 13-year-old student's neck that read "I abuse animals," court records indicate. The student's age is also listed as 14 in documents.

An independent arbitrator overturned the IU's termination in favor of a 53-day suspension and recommended placing Millheim on an improvement plan.

IU-20 Executive Director Charlene Brennan said Millheim already was once on an improvement plan and she's not comfortable putting him back in a classroom. She notes she is legally required to protect special-needs students.

"If something is happening then I need to step up and protect children," Brennan said in an interview. "I believed the way to do that was to terminate his employment."

IU-20 attorney John Freund said the case is of significant public importance.

It highlights the difficulty Pennsylvania public schools face when they want to terminate teachers for poor performance or unacceptable conduct but end up in arbitration, he said. The courts have given independent "commercial arbitrators" broad discretion to determine what is just cause, he said.

"The root of the problem does not lie in teacher tenure," Freund said. "The root of the problem lies in the arbitration of teacher dismissals."

When asked if the allegations had been reported to the Pennsylvania Department of Education, Freund said he was not permitted to discuss that. The department requires confidentiality until it completes its investigation into accusations.

Millheim opted not to attend a hearing on the charges before a hearing officer, and he requested arbitration. The hearing was held without him and the hearing officer recommended termination. The IU-20 board of directors then voted to fire Millheim on Dec. 14, 2011.

The teacher's defense

Pennsylvania State Education Attorney Jody A. Mooney, arguing on behalf of Millheim, states in a filing that the arbitrator found that Millheim had not violated the morals of the community and that he did not act maliciously. Mooney did not respond to requests for comment.

"In fact, instead Mr. Millheim believed he was using proper educational techniques," Mooney writes. "Students involved in the incidents at issue did not report any injury."

As a life-skills teacher, Millheim is tasked with providing special-education students with appropriate academic programs and teaching students the skills they need to succeed once they leave school.

Brennan noted some students in Millheim's course are nonverbal, so they couldn't share what was happening in the class with their parents.

Colonial Academy is an IU-20 school in Wind Gap for children with disabilities, behavioral problems and students who struggle in a traditional middle or high school. All of the staff are employed by the IU but students come to the Slate Belt school from the supporting districts in Northampton, Monroe and Pike counties.

Discipline after petting zoo visit

The October 2011 incident followed a trip to a petting zoo where the student used food to lure a goat and then hit it on the nose, records state. Six days later, after learning of the incident, Millheim placed the sign on the student in the classroom, records state.

"It is important to understand this boy is both autistic and mentally challenged," Freund said.

Millheim testified in arbitration that he explained to the student it was wrong to hit animals and if he did it again he would have to miss out on basketball club, the arbitrator's decision states. Millheim testified the student failed to see the harm to the animals and instead fixated on the consequence of missing basketball club.

Millheim said he created the sign and placed it around the student's neck so the student would understand it was wrong to hit animals, according to the arbitrator's report.

He said he was trying to use a technique that uses pictures to communicate with students who are limited verbally. Others testified he was not using the technique properly and he admitted to not having been trained in it.

Millheim texted a picture of the crying, humiliated student to a colleague who had notified Millheim of the petting zoo incident. Millheim did that because he wanted the colleague to know he was addressing the incident, according to the arbitrator's report. The colleague took the student from the classroom, court records state.

Staff in another class changed the sign to read "I love animals" and helped the boy write an apology on the opposite side of the sign, records indicate. That calmed the boy and made him stop crying, according to the court records.

When the child returned to the class, Millheim created a second sign reading "I abuse animals" and made the boy wear both signs in front of the class, records state.



Investigation begins

The intermediate unit immediately suspended Millheim with pay pending an investigation. The investigation found a pattern of questionable techniques used by Millheim, including using students' trigger words improperly, using "inordinately long time-out periods" and introducing items into class he knew students had phobias about, documents state.

Others testified that Millheim repeatedly used the same boy's aversion to ketchup as a punishment on several occasions, records indicate.

"We felt it was very severe and it had been going on awhile but no one brought it to my attention," Brennan said.

Millheim blatantly disregarded accepted academic theories on behavior control with special-needs students but also violated state and federal regulations, Freund said.



"The facts of this case are particularly troublesome because this employee utilized techniques that involved humiliation and terror to address behavioral concerns," Freund said.

After the investigation, Millheim was suspended and then the board voted to fire him in December 2011 over charges of "immorality, cruelty, persistent negligence in the performance of duties, willful neglect of duties" and violating state law, court records indicate.

The board charges that Millheim has called students "loser, sissy, liar, knucklehead, idiot, crybaby and shabby butt," according to records. Millheim testified he did the opposite. According to the arbitrator's report, Millheim told students who were frustrated with a task that while it might take them longer to complete it, they weren't dumb.

Millheim forcefully placed students in the corner for long periods of time, sometimes for as long as three days, records say. Millheim's attorney contends there was no IU policy on how long a child could be put into time-out, records state. And Millheim said he used the corner as a quiet area for students to regroup.



"You've issued excessive force with students, twisting their arms behind their backs, and pushing their heads, hurting them sometimes to the point of tears," court documents state.

Millheim "credibly and adamantly denies referring to students by using derogatory names, putting students in time-out for extended periods of time, and using inappropriate restraint techniques with students," according to the summary of the association's contentions in the arbitrator's report.

IU-20 did not show there was a policy or law prohibiting the techniques that Millheim employed or that Millheim knowingly used a behavior technique he knew was banned, Mooney writes.

"Acceptable physical contact with a disruptive students depends upon the behavior/age and size of the student," she wrote.

Millheim "humiliated students and engaged in acts of extreme discipline" and demonstrated a constant failure or refusal to adhere to generally accepted techniques for behavior control and modification, records say the charges state.



"There was simply no evidence that Mr. Millehim knew he should have refrained from utilizing the behavior techniques he employed," Mooney contends.



IU-20 rationale flawed, lawyer contends

IU-20 has a policy of positive behavior support and does not use aversive techniques — a behavior modification consisting of cruel or painful techniques— with students, records state. Millheim was trained in the proper methods, documents say.

Mooney argues IU-20 did not advise Millheim of its performance expectations and did not state teachers could only use classroom management techniques spelled out in student's individualized education programs.

Special education students all have federally-mandated plans that spell out the learning objectives for each student based on their disability and needs. They are meant to help teachers and support staff understand a student's disability and how it affects their learning.

Millheim was already on an improvement plan for similar sorts of behavior earlier in his career with IU-20, Brennan said. His attorney noted he had subsequent good evaluations after being placed on the plan, she said.

"The problem of course with that is the things he was doing were things he could stop when people came in to observe," Brennan said. "He said to the aides, 'What happens here, stays here.'"



At least one aide in his class told the arbitrator that she had not reported past incidents because she was intimidated by Millheim, who was a union representative, and she feared no one would believe her.

Millheim opted to handle the charges through arbitration, leading the Colonial Intermediate Unit #20 Education Association to file a grievance on his behalf, arguing IU-20 lacked just cause to fire Millheim.



After three days of hearings over several months in 2013, arbitrator Rochelle K. Kaplan found Millheim should be suspended for 53 days but then be fully reinstated with back pay Jan. 2, 2012. Kaplan also found that Millheim must agree to an improvement plan "created and controlled" by IU-20, records state.



Winding through courts

IU-20 asked Northampton County Court to overrule the arbitrator's decision because Millheim hung signs on a disabled child in front of his class in violation of the intermediate unit's policy against aversive techniques. The lawyers for the IU argued that was not covered by a collective bargaining agreement.



Northampton County Judge Jennifer Sletvold declined to overrun the arbitrator's decision, finding the contract gave the arbitrator authority to determine whether just cause existed for disciplining Millheim, records state. That led IU-20 to appeal to Pennsylvania Commonwealth Court.



The Colonial Education Association asked the court to throw out the appeal or strike portions of the appeal. On Oct. 27, 2014, Commonwealth Court Judge Robert Simpson refused to throw out the case but agreed to strike portions of the IU-20's filing, including a transcript of the hearing before Kaplan.

Simpson agreed with the association's argument that the transcript of the arbitration hearings were not a part of the certified record. The arbitrator's opinion as well as Sletvold's opinion are a part of the record, Simpson ruled.



That case is pending. Freund recently argued IU-20's case before the Commonwealth Court and the agency is now awaiting a ruling.

The Pennsylvania State Education Association recently filed a friend of the court brief in support of Millheim's case. Their brief states if they lose in arbitration, they generally do not appeal but address any issues in the next round of contract negotiations.



"However, when employers appeal, and courts overturn awards, PSEA will expend every effort to preserve the award of the arbitrator," the association's brief states.

The IU is prepared to fight the case as far as it legally can, Brennan said.

"This just sets such a high standard for terminating anyone," Brennan said. "How bad does it have to be?"

Sara K. Satullo may be reached at ssatullo@express-times.com. Follow her on Twitter @sarasatullo. Find Bethlehem news on Facebook.