June 22, 2016
Thom Carroll/PhillyVoice
Ellis Jones was a mathematics teacher at Jules E. Mastbaum Vocational Technical School in Kensington in 2009, when three members of City Year Greater Philadelphia complained about his in-class behavior in a letter to the school's principal.
A former Philadelphia teacher who allegedly made vulgar sexual remarks to his students stands to be reinstated and receive retroactive salary payment – seven years after the School District of Philadelphia first sought to fire him.
Ellis Jones, a mathematics teacher at Mastbaum Area Vocational Technical School during the 2008-09 school year, allegedly told students he did not need Viagra to get an erection, crassly explained sodomy, told inappropriate jokes, explained how to "huff" dangerous chemicals and repeatedly used the F-word.
Jones' behavior was so outrageous that members of an AmeriCorps program assisting in his classroom alerted the school's principal, prompting an investigation that ultimately called for his dismissal.
But because the district failed to properly follow Pennsylvania School Code in terminating Jones in 2009, a panel of Commonwealth Court judges ordered Jones be reinstated with retroactive pay.
"...This court cannot fathom how a teacher repeating and joining in his students' bad behavior can set a good example for the students." – Commonwealth Court Judge Anne E. Covey, in her June 2 opinion
In an opinion released June 2, Judge Anne E. Covey said the court does not condone Jones' conduct, but is constrained by precedent to direct state Education Secretary Pedro Rivera to reinstate Jones and calculate appropriate compensation dating back to 2009.
Jones, 67, of North Wales, Montgomery County, likely would be owed between $50,000 and $100,000, his attorney, Richard Migliore of Havertown, estimated. That's because the wages Jones earned while working for Hope Charter School, Upper Darby School District and the Delaware County Intermediate Unit, his current employer, would be subtracted from the compensation owed. Jones has worked as a math teacher since January 2014 in DCIU's The County Alternative High School, which provides intensive outpatient treatment services for students suffering from mental health issues.
"It's not a big windfall for him monetarily," Migliore said.
Nevertheless, the district is not yet ready to pay up. Attorney Paul Cianci of Huntingdon Valley filed a motion for reconsideration on Thursday, extending the district's lengthy legal battle against Jones.
The motion claims the court's interpretation of School Code "is not supported by the text of the statute, is not followed by the school districts across the Commonwealth, and is not consistent with due process protections."
District officials declined to comment, citing active litigation, spokesman Fernando Gallard said. Cianci did not respond to messages seeking comment.
Migliore expects the district's motion to be denied, saying it fails to raise any new issues. He hailed Covey's opinion as "outstanding," though he disagreed with the finding that Jones's conduct met the legal immorality standard for dismissal.
"He is an outstanding teacher who was improperly fired," Migliore said. "It was a witch hunt. That's what happened to him."
The district sought to fire Jones in 2009 after three City Year Greater Philadelphia members and their project manager complained that Jones engaged in inappropriate conversations that were not related to his Algebra II or Geometry classes. They listed numerous alleged infractions by Jones in a letter penned to then-Principal Mary Dean in April 2009.
City Year is an AmeriCorps program that provides classroom support to 14 public schools in impoverished, urban neighborhoods of Philadelphia.
According to court filings, Jones' alleged in-class behavior included:
• Responding to a student who screamed "This is f***ing ridiculous" by replying, "No, you're f***ing ridiculous. It’s f***ing ridiculous you come to my class .... you staying here not doing anything is f***ing ridiculous.”"
• Assuring students who were discussing Viagra that he did not have any problems "getting it up."
• Explaining sodomy as "when you get f***ed up the a**."
• Repeatedly shouting "There is a valve at the tip of the penis," as students laughed while he explained why a man cannot urinate with an erection.
• Informing students that Dean "stretched out my a**hole" by enforcing administration mandates.
• Describing the discomfort of "getting your b***s crushed" to a female student.
• Disclosing to his students that kids in the suburbs “huff,” or inhale dangerous chemicals, and explaining how they do it.
• Telling inappropriate jokes, such as: "How do you make a hormone? Don't pay her."
In an investigation spearheaded by Dean, several randomly-selected students confirmed many – but not all – of those allegations during subsequent proceedings, court records show.
Jones admitted to making some of the statements at an investigatory conference held June 1, 2009, but said they were taken out of context or misinterpreted, according to court records. He admitted to making the hormone joke, using the F-word in a confrontation with a student and discussing a colonoscopy with a student distressed about an MRI.
Migliore did not make Jones available for comment on this story.
"What he said was taken out of context in a Salem witch hunt fashion," Migliore said. "That's what happened. I watched it go down and I was helpless because I was then an employee of the school district."
Migliore served 34 years as a teacher and administrator within the district before retiring in 2009. He was an assistant principal at Mastbaum during the lone year Jones worked at the Kensington high school.
(Migliore filed a federal lawsuit in 2011 alleging district administrators, including Dean, unfairly treated and demoted him after he penned a book on education. The sides settled last year. Dean is now the principal at West Philadelphia High School.)
Mastbaum recruited Jones from Dobbins Area Vocational Technical School, where he taught for six years, because he was highly regarded, Migliore said.
Court papers, however, indicated that Jones moved to Mastbaum after the electronics program was discontinued at Dobbins Tech. Jones was hired by the school district in September 2002.
At best, Jones' comments were inappropriate and constituted reprimand, Migliore said. But he insisted they did not meet the immoral standards for dismissal. Jones simply answered questions brought to him by students, often before class and in a joking fashion, Migliore said.
"He didn't really talk about sex with the kids," Migliore said. "That's ridiculous. He answered questions."
Dean recommended Jones for termination following the investigatory conference, as did a regional superintendent after a second-level conference several weeks later.
In between conferences, Jones sent a letter to Dean apologizing for his remarks, according to court records. He said he was trying to build trust and rapport with his students, but immediately changed his approach and apologized after concerns were raised by Dean and City Year members.
Former Superintendent Arlene Ackerman and then-School Reform Commission Chairman Robert Archie Jr. informed Jones in a letter, dated Aug. 10, 2009, that the administration would recommend the SRC terminate his contract. The letter also noted he would not be paid.
"In my opinion, the real immorality in this whole affair was what was done to Ellis Jones." – Richard Migliore, attorney for Ellis Jones
Jones requested a hearing before the SRC, but only received a hearing with Archie on April 16, 2010, according to court documents. The full SRC only became aware of the charges against Jones when it voted to dismiss him on Dec. 15, 2010, the Commonwealth Court ruled.
That process violated the Pennsylvania School Code, the court ruled.
The court affirmed the district's reasoning for terminating Jones as lawful, but ruled it did not adhere to School Code and violated Jones' due process rights.
Jones' hearing with Archie and the SRC's dismissal resolution each came after his effective termination date of Aug. 14, 2009. The School Code requires the termination date to follow each of those actions, Covey wrote in the court's opinion.
Additionally, tenured employees must receive a hearing before the entire SRC prior to being dismissed, Covey wrote. The court found no evidence that any member of the SRC, beyond Archie, had reviewed the charges against Jones prior to voting to dismiss him on Dec. 15, 2010.
"That is illegal," Migliore said. "Commissioner Archie should know better. In my opinion, the real immorality in this whole affair was what was done to Ellis Jones."
But the district claims the court misinterpreted the law.
The court ruled that school boards must resolve to demote an employee and furnish him with a written statement of charges prior to a hearing. But Cianci argued that such "pre-charge determinations" violate due process rights. It also effectively eradicates an employees' right to a private hearing, Cianci wrote in the district's motion for reconsideration.
As a result, Cianci wrote, school districts across Pennsylvania avoid "pre-charge determinations."
"These resolutions are not made because (the School Code) does not require them and, more importantly, they would indicate pre-judgment on the part of a school board – the entity charged with deciding whether termination is warranted – in violation of due process protections afforded the employee," Cianci wrote.
Cianci also argued that the remedy for any procedural failure is not reinstatement and retroactive payment, but remanding the district to properly follow required procedures.
Migliore said he viewed the opinion as an endorsement of due process rights.
"It is constitutionally mandated that a teacher receive a hearing prior to being discharged," he said. "It doesn't have to be a complicated hearing. It only has to be a simple hearing before the school board, which at that point stands as an impartial tribunal. He was never granted that."
Migliore also contended that the SRC did not meet the burden of proof needed to sustain an immorality charge because it did not present any unbiased witnesses and refused to allow Jones' witness, Dobbins department head Eugene Woehr, to testify.
But Covey wrote that the City Year employees were "a fair representative of the community," noting they were so offended by Jones' behavior that they wrote the letter initiating the district's investigation.
"Finally, this court cannot fathom how a teacher repeating and joining in his students' bad behavior can set a good example for the students," Covey wrote.
In an earlier court filing, Migliore claimed Jones was recognized as a "dedicated and caring teacher" who helped his students achieve Adequate Yearly Progress on the state's standardized tests. He wrote that Jones used "an informal style of teaching and maintained a friendly and humorous relationship" with students.
"Such informal styles of teaching are often used in Philadelphia's schools because students often do better academically and socially with teachers who build relationships with them," Migliore wrote. "That is the rationale behind 'small learning communities.' Students felt that they could talk to Mr. Jones about anything which was on their minds or bothered them as Mr. Jones could turn the conversation into a positive discussion through his humor and willingness to engage students."
Jones has not had any behavior issues at the Delco I.U., nor did he have any at Upper Darby or Hope Charter, Migliore said. Both the I.U. and the Upper Darby district declined to comment on the case, saying it was a personal matter. Hope Charter closed in 2013.
The Commonwealth Court opinion reversed a 2013 order that found the district initially failed to follow proper protocol in terminating Jones, but later met school code requirements. That order, issued by former acting state Education Secretary Carolyn Dumaresq, directed the district to fully compensate Jones for any salary lost between Aug. 10, 2009 and Dec. 15, 2010.
"It's a well-reasoned opinion," Migliore said. "The Commonwealth Court had no choice but to rule in Ellis Jones' favor. The procedural safeguards of the School Code were violated. That is a failed defect. Her opinion is consistent with the constitutional principles of the United States Supreme Court."
The Pennsylvania Department of Education will abide by the court's decision, spokeswoman Nicole Reigelman said. Pending the outcome of the district's motion for reconsideration, PDE will facilitate the steps necessary in determining Jones' retroactive payment.
The Philadelphia Federation of Teachers, which is not involved in the litigation, did not respond to a request seeking comment on the case.
