MULLICA TOWNSHIP — The kindergarten teacher up on tenure charges after reporting that two 5-year-olds emerged from a classroom bathroom and said they had engaged in sex play, will not lose her job and is entitled to almost four months of back pay lost to unpaid suspension.

Arbitrator Daniel F. Brent, appointed by the state Department of Education, refused to sustain the tenure charges brought by Superintendent Brenda Harring-Marro and the Board of Education against the 16-year veteran teacher Kelly Mascio, of Mullica Township.

He did find, however, that she was culpable for failure to supervise students and issued a 10-day suspension as punishment.

“Ms. Mascio is very grateful the arbitrator determined she should be reinstated,” said Mascio’s attorney Michael Damm, of Selikoff & Cohen in Mount Laurel, Burlington County. “I think (she) is certainly looking for — maybe not a friendly attitude (from the administration) — but a mutual ‘Let’s move forward’ type of attitude, for the kids’ sake. We’re all hoping that’s what will happen.”

Superintendent Harring-Marro released a one-line statement: “The Board of Education is in receipt of Arbitrator Brent’s Decision and will implement it in accordance with the law,” she wrote in an email.

Brent’s decision outlined what happened in class Sept. 30, 2013:

Mascio, who had long taught second grade and was in her third week of teaching kindergarten, was showing an educational video to 12 students who had returned from standardized testing. She did not notice that a girl student had entered the classroom bathroom while a boy student was still there. She noticed flickering lights a few minutes later and another student told her two students were in the bathroom.

She told the two in the bathroom to come out, and when they did the boy’s shirt was on backwards. She asked what they were doing and the boy said, “Her asked me to have sex with her,” then the girl said, “No, he asked me to have some with him.”

Mascio immediately told the school psychologist, who interviewed the students and concluded “they had engaged in some visual, and perhaps physical, examination of each other’s private parts,” the decision said.

“A momentary lapse in accounting for twelve children in her care, resulting in her failure to notice that the bathroom door had opened to permit a female student to enter the bathroom while the male student was in the bathroom, does not rise to the level of misconduct necessary to justify a charge of conduct unbecoming of a teacher or support a charge of professional misconduct,” Brent wrote.

“However, Respondent is culpable for her five-minute failure to provide adequate oversight,” he continued.

He found no evidence of anything but a lapse in attention. Her phone and social media records, for example, show she was not using a cellphone or personal computer when the incident happened.

“Respondent did not abandon her students, place personal business above her teaching responsibilities, or exercise poor professional judgment by making a bad decision,” Brent wrote.

Brent directed that Mascio be immediately reinstated to her former position, with uninterrupted seniority and full back pay, medical insurance, and other fringe benefits, from the start of her unpaid suspension until her reinstatment, minus 10 days.

Mascio was suspended with pay immediately after the incident by Harring-Marro, and has been on unpaid suspension since late February, when the school board voted to certify tenure charges.

The arbitrator’s decision includes findings from a Dec. 3, 2013, report by the Institutional Abuse Investigation Unit of the state Division of Youth and Family Services (now Child Protection and Permanency), which conducted an investigation. The report found no harm to either student, and no evidence of neglect or inadequate supervision by adults in the situation.

“Based on the information gathered and physical observations of the children, (male) and (female) are not neglected children as defined by statute,” the DYFS report said, as quoted by Brent. In a section on remedial action, the DYFS report said, “Corrective action is not required. Your organization has the responsibility to make an independent judgment as to whether to accept IAIUs findings and investigations ...”

The district then conducted its own investigation after getting the DYFS report, Harring-Marro recommended tenure charges be brought and the board voted to certify the charges Feb. 26.

“We do believe, as we have all along, that the administration’s handling of this case was appallingly egregious, and it is unfortunate that the taxpayers of Mullica Township will have to pay hefty legal fees due to the complete mishandling of this situation,” said Mullica Township Education Association President Barbara Rheault.

Brent placed some of the blame on school district personnel who filed an incorrect police report, which stated the children were naked when found, and their failure to correct it later. He also faulted the police for mistakenly releasing a copy of the report with the children’s names on it.

However, this newspaper never published the children’s names.

“Dissemination of this information, and the ensuing public controversy, did more harm to the district and its reputation than did the time spent in the bathroom by the two children,” Brent wrote.

Supporters were celebrating Monday.

”I’m ecstatic for Kelly,” said friend Jaime Cirillo, of Mullica Township, whose daughter had Mascio as her second-grade teacher about five years ago. “The arbitrator listened with fair, clear ears and mind and was able to see Kelly for what she is worth. All we have been asking for from the beginning was that Kelly be put back into the classroom where she belonged, and he did it.”

Cirillo said the tenure charge process has been a strain on everyone.

“It’s been a humongous waste of time and money,” she said.

Board of Education attorney Will Donio, of Cooper Levenson in Atlantic City, did not return calls for comment.

Teachers, parents and other supporters started a campaign in support of Mascio early this year, attending school board meetings to speak in her favor and holding fundraisers to help her pay her bills. Bright yellow “We Support Kelly” yard signs cropped up all over the township, and in surrounding communities.

About 93 percent of about 100 teachers in the district voted no-confidence in Harring-Marro in March. In April, a group of teachers and parents delivered a petition to the Board of Education, with about 720 township residents’ signatures, asking that Mascio be reinstated and Harring-Marro’s contract not be renewed. Later, some signers said they thought they were only signing a petition in support of Mascio.

At the April 25 school board meeting, members of the board spoke publicly in favor of Harring-Marro’s leadership, making it clear they would not try to sever Harring-Marro’s employment with the district.

Mayor Jim Brown had encouraged reinstatement of the teacher in February.

“It should have been that way from the beginning. She could have gotten a week’s suspension and this thing would have been over,” Brown said. “It would have saved a lot of money. Most of the people in the township will be thrilled with this decision.”

Contact Michelle Brunetti Post:


Senior copy editor for the Press of Atlantic City. Have worked as a reporter, copy editor and news editor with the paper since 1985. A graduate of the University of Delaware.