FAILURE GETS A PASS
Teacher loses fight to keep job
Judge gives L.A. Unified permission to terminate Matthew Kim, who has done no work for seven years.
By Jason Song
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July 14, 2009

A Los Angeles County Superior Court judge has given school district officials the go-ahead to fire a special education teacher seven years after they decided he did not belong in a classroom because of alleged sexual harassment.

In his decision made public Monday, Judge David P. Yaffe sharply criticized the state panel that oversees contested teacher firings for disregarding earlier judicial orders. The commission's decisions show their "profound contempt for, and disrespect of, the judgments and orders of the courts of this state," Yaffe wrote.

The ruling involves Matthew Kim, who was accused of touching co-workers' breasts and making improper advances toward students. He was featured in a Times article last spring as an example of the district's inability to act swiftly against teachers accused of egregious or immoral acts.

The decision is a result of years of legal wrangling before a state board that oversees contested teacher firings as well as Superior Court and appellate judges. All told, the Los Angeles Unified School District has spent nearly $2 million, including Kim's pay and benefits while he was barred from the classroom.

Known as a "housed" employee, he and about 160 others reported every day to administrative offices, where they were assigned no work.

Kim was born with cerebral palsy and uses a wheelchair; he has argued that any touching was involuntary, an assertion he made again Monday in an e-mail. "I have not touched anybody intentionally," Kim said.

After he was fired by the school board in 2003, Kim appealed to the state Commission on Professional Competence, which unanimously found that some of Kim's actions could have been considered sexual harassment but ruled that he should not be fired. The district appealed the decision and a higher court ordered the commission to rehear the case.

Late last year, without considering any new evidence, the same three-member panel again ordered that Kim be retained. The district appealed and Yaffe ruled in its favor.

Supt. Ramon C. Cortines said Monday that he would order the district to stop paying Kim, a move that the teacher's attorney opposes.

"I hope (the decision) sends a message that we need to do more to protect children and other employees," he said.

Kim, who was reassigned from a district office to his home last spring, plans to appeal. "I'm sure it'll work out my way," wrote Kim, who received his undergraduate degree in physics from UC Berkeley but said he became a teacher because he wanted to help disabled students.

Yaffe also criticized the state commission for changing its findings. In its second decision, the commission reversed itself and did not determine that his actions constituted sexual harassment.

"What the commission has done . . . is to try to change the facts of the case to support its prior decision, instead of changing its prior decision to one that is supported by the facts of the case," Yaffe wrote.

He also questioned why the commission did not consider -- as ordered -- the consequences of returning Kim to the classroom, especially because he required a full-time aide while teaching.

"Should the women who are hired (to work with Kim) be told that they must submit to 'non-volitional arm movements' by Kim that touch their breasts, in order to accommodate his disability?" Yaffe wrote.

Officials with the Department of General Services, which oversees the state panels, declined to comment because the case is still technically active. The district must still respond to Yaffe's order before it is finalized.

In 2002, while his case wound through the firing process, Kim was placed on administrative leave. He received his full annual salary of up to $68,000 and benefits.

Kim was one of about 160 district employees who were housed in district offices while allegations against them were investigated. Cases can take years to resolve and officials say they are prohibited from assigning the employees chores such as filing or answering telephones because of a clause in the teachers union contract.

The Times found that other school districts finish their investigations faster and give their employees work while they are reassigned.

Kim's case was featured in a Times story in May about the practice. He declined to comment for the original story but after it was published, he asked for an interview to say that he had never willfully touched anyone and that he was the victim of discrimination.

In commission and court documents, a co-worker said Kim touched her breast with his left hand, the only one over which he has some control. Another co-worker made similar allegations. A student said he asked her if she had a boyfriend and if she was a virgin and another said Kim stared at her and urged her not to change her hair color, documents showed. Over a one-year period at Grant High School in Van Nuys, he was accused four times of sexual harassment, according to a court document.

Kim's attorney, Lawrence Trygstad, said the judge's directives to the commission were unclear and that his client was eager to return to work.

"He wants to go back to the classroom," Trygstad said.

jason.song@latimes.com