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Monday, October 20, 2014

Lenny Isenberg on Diane Ravitch's Rhetoric

Will the Real Professor Diane Ravitch Please Stand Up?
 
 
Professor Diane Ravitch has become a G-d to her undiscerning and often cultish followers. What most of these people choose to see is her clearly unsurpassed knowledge of what is and has gone on in public education throughout the last 150 years. Without question she could be a revolutionary rallying point for countering the carefully planned and orchestrated program of public education privatization by charter schools run exclusively to increase the corporate bottom line and further dumb down the American public. However, the fact is that Ravitch has chosen to do nothing but talk and then only after the fact as can be seen in the recent Vergara case. This should have awakened her followers, but alas it hasn't. 

In lieu of really organizing and funding of a true opposition to the corporate agenda for public education, this self-silenced majority of Ravitch supporters still chooses to stand by and watch the decimation of a fairly compensated professional teacher corp and with it any chance of public education excellence. 

As long as Professor Ravitch's insights and alleged opposition to public education privatization continues in the same manner, while remaining undisseminated to the general public, this lack of a coordinated response will continue to redound to the unintended satisfaction of her supposed foes.

Alas, one might argue that Ravitch seems to have a pretty dark agenda, where she dodges the logical conclusions of her own ideas and the evidence that comes out of it on a daily basis as to the systematic deconstruction of public education by protesting, "I'm just a retired old gardener in Brooklyn with a bad knee, who doesn't have the energy to do more." But somehow, she puts in 8 hour plus days on her blog continuing to sap the energy potential of progressive educators who could alternatively really turn things around, if they understood the rat hole spending energy on the Ravitch Blog has come to be. 

Clearly, Diane will never do anything that actually challenges the status quo of her upper class origin in what it does not take a person of her intelligence to see is a purposefully failed public education system run for money.

Most enlightening- and where I got into it with her and her cult followers- was when she wrote an excellent analysis of the recent Vergara decision. Of course, only after Judge Treu had decided the case against teacher tenure. What Ravitch wrote after the fact pointed out and gave compelling evidence to show that the supposed experts, who had testified for the plaintiffs, were completely wrong. Ravitch showed that literally every supposed justification for depriving teachers of tenure were completely fabricated and made no sense, when put in historical context with the actual reasons for disparity loss of low seniority new teachers in the inner city schools. 

Why novice teachers were fired before seasoned and tenured veterans has more to do with no administrative support for minimal student behavior and the continued social promotion of students into grades where purposefully allowed deficient students could not possibly understand what a veteran single subject credentialed teacher was trying to teach. 

When tenured teachers were given and took the option of leaving, because of sufficient seniority, they logically took it by bidding for a higher functioning school as opposed to staying in a no-win inner city school with no administrative support and a program insured to fail and frustrate both the teacher and student. The resulting disproportionately number of novice teachers in inner city schools, who were the first to lose their jobs when cuts came, really had little to do with seniority, but rather an untenable school environment that seniority offered a rational escape from. 

The glaring omission that I asked Professor Ravitch about was, "If you know all this, why didn't you write an amicus brief or join with California Teachers Association (CTA) or other teachers unions in this case, before there was a court decision against teacher tenure?" One more time with the Ravitch litany, "Oh, I'm just a retired teacher- gardener who lives in Brooklyn with a bad knee." That bit of obfuscation was nothing compared to the brown storm of criticism I incurred for having the temerity of asking this question on Ravitch's own blog in the presence of her acolytes.

Alas, the corporate funded program to privatize public education in the United States remains alive and well and unchallenged. Not only for those at city, state, and the federal levels of government working to bring it about, but it is also supported by a rather sizable contingency of 5th columnists like Ravitch and those in UTLA, AFT, CTA, and other organizations who are doing quite well professionally and financially under this orchestrated war to privatize public education. Time to wake up and judge people by what they do and not their vacuous rhetoric?

If you or someone you know has been targeted and are in the process of being dismissed and need legal defense, get in touch: 

 
Lenny@perdaily.com

Appellate Division Second Department Decision in Capece v Schultz: Lisa Capece Still Wins

Chapter Leaders are given the burden of providing information to principals who do not want it, making them (the Chapter Leaders) open for abuse, discontinuance, or 3020-a.

Lisa Capece lost her probationary position, fought in Court, and won. Now we hope that she will continue to fight until she gets her tenure.

Fight on, Lisa!!

Here are my previous posts:

 Chapter Leaders and Freedom of Speech in NYC Public Schools

Probationary Teacher Lisa Capece Wins Her Case Against The NYC DOE, Wins Reinstatement and Backpay

 
Betsy Combier
 
Supreme Court, Appellate Division, Second Department, New York.

IN RE: Lisa Capece, etc., respondent, v. Margaret Schultz, etc., et al., appellants.

2012–03257 (Index No. 80361/08)

Decided: May 28, 2014

THOMAS A. DICKERSON, J.P. JOHN M. LEVENTHAL L. PRISCILLA HALL PLUMMER E. LOTT, JJ. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Adam Coyller of counsel), for appellants. The Behrins Law Firm, PLLC, Staten Island, N.Y. (Jonathan B. Behrins of counsel), for respondent.
Argued—March 31, 2014
 
DECISION & ORDER
In a proceeding pursuant to CPLR article 78 to review a determination of Margaret Schultz, in her capacity as Community Superintendent of School District 31, and the New York City Department of Education, which discontinued the petitioner's probationary employment as a teacher at Public School 1, Margaret Schultz, Community School District 31, and the New York City Department of Education appeal from a judgment of the Supreme Court, Richmond County (Dollard, J.), dated February 10, 2012, which granted the petition, annulled the determination discontinuing the petitioner's probationary employment, and reinstated the petitioner to her position as a teacher at Public School 1, with retroactive seniority, back pay, benefits, and tenure effective as of January 25, 2009.
 
ORDERED that the judgment is modified, on the law, by deleting the provision thereof granting the petitioner tenure as of January 25, 2009;  as so modified, the judgment is affirmed, without costs or disbursements.
A probationary employee may be discharged without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law (see Matter of Swinton v. Safir, 93 N.Y.2d 758, 762–763;  Matter of York v. McGuire, 63 N.Y.2d 760, 761;  Matter of Johnson v New York City Dept. of Educ., 73 AD3d 927, 927–928;  Matter of Sztabnik v. City of New York, 31 AD3d 456, 456;  Matter of Rivera v Department of Educ. City of N.Y., 25 AD3d 559, 559).   The petitioner bears the burden of presenting competent proof of the alleged bad faith, the violation of statutory or decisional law, or the constitutionally impermissible or illegal purpose (see Matter of Deitch v. City of New York, 90 AD3d 924, 925).   Here, the petitioner met her burden of demonstrating that the discontinuation of her probationary employment was made in bad faith, showing that the discontinuation followed a letter she wrote to the principal, in her capacity as a union chapter leader, requesting to make up her missed preparation periods.   Although, generally, evidence of unsatisfactory performance rebuts a showing of bad faith (see Matter of Johnson v. Katz, 68 N.Y.2d 649, 650;  Matter of Fichter v. Egan, 223 A.D.2d 516), in response to the petitioner's showing, the appellants failed to establish that the discontinuance of the petitioner's probationary employment was the result of poor performance.   The record demonstrates that the petitioner began to receive “Unsatisfactory” ratings only after she asked the principal to make up her missed preparation periods, and it was at that point that the evaluations of the petitioner's performance began to precipitously decline.   Accordingly, the Supreme Court properly annulled the determination and reinstated the petitioner to her former position, with retroactive seniority, backpay, and benefits (see Matter of Johnson v. City of New York, 34 AD3d 484).
 
However, the appellants correctly contend that the Supreme Court exceeded its authority by granting the petitioner tenure effective as of January 25, 2009.   “ ‘While the court is empowered to determine whether the administrative body acted arbitrarily, it may not usurp the administrative function by directing the agency to proceed in a specific manner, which is within the jurisdiction and discretion of the administrative body in the first instance’ ” (Lipsman v. New York City Bd. of Educ., 133 A.D.2d 810, 811, quoting Burke's Auto Body v. Ameruso, 113 A.D.2d 198, 200–201).   The grant of tenure is determined by a majority vote of the board of education following a probationary period of three years (see Education Law § 3012[1] ).   The probationary term must be completed before the employee can be considered for tenure (see Matter of Hazard v Board of Educ., Horseheads Cent. School Dist. No. 1, 16 A.D.2d 481).   Since the petitioner's probationary term had not expired when her probationary employment was discontinued as of July 25, 2008, she was not yet eligible for tenure at the time of her termination, and she did not seek such relief in her petition.   Accordingly, the Supreme Court erred in granting the petitioner tenure as of January 25, 2009.
The appellants' remaining contentions are either academic in light of our determination or without merit.
DICKERSON, J.P., LEVENTHAL, HALL and LOTT, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
- See more at: http://caselaw.findlaw.com/ny-supreme-court/1667848.html#sthash.d4f7X2rU.dpuf

See my 2012 post on this blog:

Probationary Teacher Lisa Capece Wins Her Case Against The NYC DOE, Wins Reinstatement and Backpay

Orders Her Reinstated With TenureJudge: S.I. Principal Fired Teacher for Union Activity

David Sims, The Chief, February 17, 2012

LINK

A Staten Island Principal discriminated against a Teacher and dismissed her because of her activity as a United Federation of Teachers chapter leader, a Staten Island Supreme Court Justice ruled Feb. 10, while ordering that she be reinstated with more than three years’ back pay.
Lisa Capece, who taught fifth grade at P.S. 1 in Staten Island from January 2005 to July 2008, sued the Department of Education over her dismissal, which occurred while she was still a probationary Teacher.
Found Union-Related Animus
Because probationary employees can be discharged at will, without a hearing, the burden was upon Ms. Capece to prove that the termination was made in bad faith. Justice Kim Dollard ruled that there was clear evidence that P.S. 1’s Principal, Diane Gordin, had a personal animus against Ms. Capece based on her union activity.
Ms. Capece was rated satisfactory over her first 2-1/2 years of teaching by the school’s former Principal, Teri Rosenberg, and Ms. Gordin, who was Assistant Principal until being promoted in the fall of 2006.
One evaluation from Ms. Gordin read, “You have a nice way with your students. You continuously praise them and make them feel very comfortable in contributing their ideas.”
But the tone of Ms. Capece’s evaluations shifted around March 2007, following her asking Ms. Gordin in writing when she would be paid for missed prep periods (free periods that are sometimes missed because of other teaching duties).
Principal Lost It
Ms. Capece had recently become co-chapter chair for the school along with a tenured Teacher, Diana Allen, and they made the request together. Ms. Gordin summoned the two of them to a hearing, Ms. Allen testified,  and “spoke to her in a nasty tone, put her hand up to her face and told her to shut up,” the judge noted. Ms. Capece also said she was yelled at and dismissed from the office.
From then on, Ms. Capece’s evaluations suffered, including “skewed analysis of student test scores” and a poor classroom evaluation. In November 2007, she consented to have her probationary period extended for another year after she was told to sign the agreement or risk termination.
“It would have been more difficult to recommend denial of tenure to Capece without additional negative ratings,” Justice Dollard wrote in her decision. “Therefore, the court is of  the opinion that Gordin viewed the extension of probation to be necessary to insure that there would be enough of a basis and record to get petitioner out of the school as of the end of the 2007-2008 school year.”
Clear Signs of Retaliation
Ms. Capece was always rated unsatisfactory after her probation was extended, even though her students’ test scores were on par with those in other fifth-grade classes. Ms. Gordin also engaged in several examples of retaliatory conduct, like accessing a personal computer file of Ms. Capece’s, and discussing personal information about her to parents.
Ms. Gordin testified that she initially gave satisfactory ratings because Ms. Capece was a new Teacher with little experience.
“However, one can presume that regardless of being a new Teacher, if the ability of a Teacher is seriously lacking, a satisfactory rating would be inappropriate despite the time of observation,” Justice Dollard said.
She pointed out that Ms. Gordin was so intimidating, Ms. Capece and Ms. Allen resigned from their positions as chapter leaders. She said she found their testimony about the meeting with Ms. Gordin much more credible.
“Diana Allen, as a tenured Teacher, was ‘safe’ in that had Gordin sought to fire her, it would have been quite difficult,” she said. “As an untenured Teacher, petitioner was a viable target; a virtual sitting duck.”
She ordered that Ms. Capece be reinstated at P.S. 1 with retroactive back pay and benefits, as well as tenure.
“She was terminated because she was a poor Teacher—not because of union activities,” said city attorney Adam Collyer in a statement. “The other UFT co-chapter leader at that school has consistently received satisfactory ratings and is still employed. We are disappointed with the decision and are considering our legal options.”
 Judge Orders Rehiring of Teacher
Feb. 15, 2012, 8:22 a.m.
A state judge has ordered the city to rehire a Staten Island teacher who lost her job about four years ago.
The unusual ruling, which the city could appeal, involves Lisa Capece, who taught at Public School 1 Tottenville on Staten Island from 2005 to 2008. When she didn’t get tenure she challenged the decision through the grievance system established in the city’s contract with the teachers’ union, the United Federal of Teachers. She lost her case.
Most teachers stop at that point, but Ms. Capece took her case to court.
“She viewed it as her career,” her lawyer, Jonathan Behrins, said. “This is what she loved to do.” Mr. Behrins said his client declined to speak with reporters but was very happy about the ruling.
Ms. Capece claimed that she got good ratings from her principal until she complained about losing scheduled “prep time.” A Staten Island judge, Kim Dollard, found that Ms. Capece had “sufficiently met her burden in demonstrating that her dismissal was done in bad faith,” and that it was “in violation of a constitutionally permissible purpose, her involvement in the U.F.T., as the co-chapter leader” of her school.
But the city’s Law Department disagreed with the ruling.
“She was terminated because she was a poor teacher — not because of union activities,” said a city lawyer, Adam Collyer.
“The other U.F.T. co-chapter leader at that school has consistently received satisfactory ratings and is still employed,” Mr. Collyer said. “We are disappointed with the decision and are considering our legal options.”
The Law Department also said the city was not required to rehire Ms. Capece during the appeals process.
Mr. Behrins pointed out that the other co-chapter leader Mr. Collyer referred to already had the protection of tenure. He also said the case showed the danger of relying too heavily upon principals to determine which teachers are most effective.
He estimated that his client’s legal fees would add up to a year’s salary. He said she made $51,000 in her last year as a full teacher, and would have received an increase upon making tenure.
Beth Fertig is a senior reporter at WNYC. Follow her on Twitter @bethfertig

Sunday, October 19, 2014

ATR Meeting November 11


The Two Parts of 3020-a: Evidence/proof of Charges, and Penalty - Case of Jay Dubner

Re-posted from
 "Inside 3020-a"


Thursday, October 2, 2014


Appeals of 3020-a: the Case of Jay Dubner v New York City Department of Education

A trier of fact in 3020-a, the Arbitrator, has actually two decisions to make in each and every case. One is, what was proven by the preponderance of evidence, and the Department of Education has this burden throughout the hearing. Two, what penalty shall be given for the proven Specifications?

When deciding penalty in 3020-a, all Arbitrators must look at prior history (this is for "progressive discipline") of the employee/Respondent, credibility of witnesses, and what is on the record as evidence. All arbitrators must take into consideration of the educator's remorse for what happened, and what he/she did to undo and bad acts in the past (did he/she go to class for pedagogical improvement? Did he/she go to rehabilitation if there was an alcohol/drug issue?)

Looking through appeals of 3020-a cases which, before 1994, went before the New York State Commissioner of Education, I found the case below, Jay A. Dubner v NYC DOE, where Dubner successfully appealed his termination as too harsh:

Appeal of JAY A. DUBNER from a determination rendered by a hearing panel convened pursuant to Education Law '3020-a concerningcharges brought against him by the Board of Education of the City School District of the City of New York.
Decision No. 13,021
(October 15, 1993)
Neal Howard Rosenberg, Esq., attorney for petitioner
Lawrence E. Becker, Esq., attorney for respondent, Katie R. Raab, Esq., of counsel
SOBOL, Commissioner.--Petitioner appeals the determination of a hearing panel convened pursuant to Education Law '3020-a finding him guilty of conduct unbecoming a teacher and prejudicial to the good order, efficiency and discipline of the service, and authorizing termination from his position. The appeal must be sustained to the extent indicated.
Petitioner is a tenured teacher of special education. He has been employed by respondent City School District of the City of New York ("respondent") for nearly 15 years and, at the time of the events giving rise to this appeal, was serving in a non-classroom position in Community School District No. 17.
On May 8, 1989, petitioner was arrested, and by indictment filed May 25, 1989 in Supreme Court, Kings County, was charged with multiple felony counts of sale and possession of controlled substances. Petitioner was reassigned to a position with the Central Based Support Team (CBST).
On June 19, 1990, petitioner pled guilty in Supreme Court to criminal sale of a controlled substance in the third degree, a class B felony. On July 20, 1990, he was sentenced to an indeterminate sentence of 2 to 6 years in prison.
On November 30, 1990, the Chancellor submitted a charge to the board of education reciting the above conviction, alleging that it constituted conduct unbecoming a teacher and conduct prejudicial to the good order, efficiency, and discipline of the service, and that it constituted substantial cause rendering petitioner unfit to continue as an employee. On December 5, 1990, the board found probable cause for such charge.
A hearing panel convened on May 24, 1991, pursuant to Education Law '3020-a, and heard testimony for a total of 8 days, concluding on February 27, 1992. The panel produced a record of approximately 800 pages of testimony. On April 1, 1992, the panel found petitioner guilty of the charge and authorized his dismissal, by a vote of 2-1. Petitioner was dismissed by formal action of the board of education on May 20, 1992.
This appeal was commenced on June 18, 1992, by service of the petition upon respondent board of education, and petitioner requested a stay of his dismissal. That stay was denied on June 30, 1992.
There can be little doubt as to the seriousness of the underlying offense. The superseding indictment charges petitioner with criminal possession and sale of cocaine on two separate occasions (both sales would be class A-II felonies punishable by 8 1/3 years to life in prison) and criminal possession of cocaine on a third occasion. Petitioner pled guilty to a single count of criminal sale of a controlled substance in the third degree, a class B felony, and received a sentence of 2 to 6 years in prison.
Petitioner contends that he was addicted to cocaine prior to his arrest, that his crime was directly related to his addiction and that he entered into a program of treatment. He claims that his treatment was successful, he has been successfully rehabilitated and has indeed performed his assigned work duties with respondent following his rehabilitation. He further claims that his dismissal violates '504 of the Rehabilitation Act of 1973. Petitioner asks that I reverse the hearing panel's finding as to guilt, and that I grant such other relief as may be proper under the circumstances.
Respondent contends that the disciplinary proceeding was in all respects correctly conducted and the penalty of termination of services is proper. Respondent claims that because of substantial adverse publicity at the time of petitioner's arrest and sentencing, it would be impossible for petitioner to discharge the duties of a teacher. Respondent further claims that the record does not establish that petitioner was addicted prior to his arrest, nor that his condition was in any way caused by addiction. Respondent further contends that the Rehabilitation Act is not applicable to the circumstances of this case.
Petitioner asks that I reverse the hearing panel's finding as to guilt. I decline to do so. There is no question that petitioner is guilty of the underlying criminal charge. The record contains both the minutes of petitioner's plea on June 19, 1990, to a class B felony and a certificate of disposition duly executed by the Supreme Court Clerk. Conviction of this felony clearly constitutes conduct unbecoming a teacher and conduct prejudicial to the good order, efficiency, and discipline of the service. Accordingly, there is no basis for reversing the panel's determination as to guilt.
With respect to the issue of penalty, Appeal of Board of Education of Community School District 19 (32 Ed Dept Rep 354), decided while this appeal was pending, is on point. In that case, I set forth a number of factors which must be considered when a respondent claims that his criminal offense was a result of an alcohol or drug-related problem. The factors are: (1) whether or not the drug-related arrest and conviction that formed the basis of the charges were the manifestation of respondent's substance abuse problem; (2) whether or not respondent has acknowledged his problem; (3) whether or not respondent has successfully undergone treatment for his problem; and (4) whether or not respondent demonstrates a capacity to carry out his duties due to his progress in the treatment program (32 Ed Dept Rep 354 at p. 357).
With respect to the first question, whether or not petitioner was addicted to drugs prior to his arrest, the record contains the testimony of fourteen persons, including petitioner. The critical time period, of course, is the time immediately prior to the arrest. With respect to that time period, only petitioner testified directly, and respondent produced no rebuttal of his claim that he was addicted then. Although petitioner arguably failed to produce certain relevant witnesses who could have bolstered his testimony, there is some question whether those witnesses were within his control, and I, therefore, decline to draw any unfavorable inference because of their failure to testify. Accordingly, there is sufficient evidence in the record to convince me that petitioner had a substance abuse problem prior to his arrest.
With respect to the second factor discussed in Community School District 19, the record offers sufficient evidence that petitioner acknowledged his drug addiction. On May 31, 1989 following his May 8, 1989, arrest, petitioner voluntarily entered a six-week inpatient drug treatment program at Gracie Square Hospital. Although petitioner admits initially denying he had a substance abuse problem, he later fully acknowledged and accepted his condition. This was validated by the testimony of a physician and a licensed drug counselor. Both testified that such denial is typical of patients new to recovery. According to these professionals, recovering addicts have a tendency to deny the existence of a substance abuse problem during the early stages of recovery in an attempt to minimize the severity of their condition. Once petitioner accepted his condition, he began to participate actively in treatment.
Petitioner makes the claim that his treatment has been successful, the third factor set forth in Community School District 19. That treatment consisted of not only a six-week inpatient drug treatment program, but participation for one year in an after-care program at the same hospital as an outpatient. During his incarceration, which lasted approximately 3 1/2 months, petitioner was involved in the Alcohol and Substance Abuse Treatment (ASAT) program sponsored by the New York State Department of Corrections, which consisted of group therapy and participation in Narcotics Anonymous meetings. Petitioner maintains that he attends Cocaine and Narcotics Anonymous meetings three or four times per week. As of January 1992, petitioner was enrolled in courses to become a drug and alcohol substance abuse counselor to assist other addicts in recovery. Based upon these facts, petitioner has demonstrated an earnest desire to be rehabilitated.
With respect to the question of petitioner's present capacity to carry out his duties, the record contains testimony from four of petitioner's current colleagues and supervisors in the administrative offices of the board of education. Witnesses referred to petitioner as an excellent employee. He was further described as very good at his job and on task prior to and following his May 8, 1989 arrest. Additional testimony revealed that petitioner performed duties as required, was very organized, focused, rarely absent and arrived for work on time. According to a supervisor, prior to petitioner's arrest, petitioner trained an assistant and overall, left the office in a better condition than he found it.
Following his May 1989 arrest and subsequent job reassignment in September 1989, petitioner testified he was only absent once. Petitioner further reveals that he worked when it was not required, often stayed late and worked on holidays and during summer vacations. At his position with the CBST, petitioner carried a case load approximately double that of his co-workers and also was assigned to special projects.
The primary purpose of a disciplinary hearing is not punitive, but rather, to determine a teacher's fitness to teach and carry out professional responsibilities (Matter of Bott v. Bd of Educ., 41 NY2d 265). After careful review of the lengthy testimony and numerous exhibits, I am unable to conclude that petitioner is unfit to teach. Moreover, petitioner has confronted his drug addiction and has, thus far, demonstrated success in overcoming it. Finally, there is no basis to conclude that the underlying conduct that resulted in the charge will recur.
With respect to the nature of the penalty imposed, it is well settled that the Commissioner may substitute his judgment for that of a hearing panel regarding the penalty imposed (Shurgin v. Ambach, 83 AD2d 665, 442 NYS2d 212). This requires an assessment of the measure of discipline and whether it is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD2d 745, 434 NYS2d 809, lv to app den 53 NY2d 603, 439 NYS2d 1026; Matter of Kloepfer v. Commissioner, et al., 82 AD2d 665, affd 56 NY2d 700; Shurgin v. Ambachsupra). It is within the Commissioner's authority to reduce a penalty (Matter of Board of Education of the Center Moriches UFSD, 22 Ed Dept Rep 113). In that case, the Commissioner determined that despite a panel's finding of incompetence, termination was not necessary as recommended by the hearing panel. In Appeal of the Board of Education of the Malverne UFSD (29 Ed Dept Rep 363, affd sub nom Matter of Malverne UFSD v. Sobol, 181 AD2d 371), I substituted my judgment for that of the panel, reducing the penalty imposed.
In the case before me, the panel has recommended that petitioner be terminated. However, the record supports the conclusion that petitioner suffered from drug addiction prior to his arrest, acknowledged his problem, sought treatment that has been successful and is capable of carrying out his professional responsibilities. Termination of petitioner's services under these circumstances would be unduly harsh.
I find that a penalty of two years' suspension without pay is more appropriate than termination and will be sufficient to impress upon petitioner the seriousness of his actions and to serve as a deterrent to any future similar actions.
Finally, petitioner's reliance on '504 of the Rehabilitation Act (20 U.S.C. '794) is misplaced. Assuming without deciding that petitioner qualifies as an "individual with a disability" as defined by 20 U.S.C. '706(8), and that '794 is otherwise applicable, it is clear that the disciplinary action taken here by respondent was not taken "solely by reason of his or her disability." Disciplinary action was taken as a result of petitioner's commission of a class B felony. Where an employee is disciplined for criminal activity, the Rehabilitation Act has no application (Richardson v. United States Postal Service, 613 F. Supp. 1213; Franklin v. United States Postal Service, 687 F. Supp. 1214). Where a teacher commits a crime, one may also question whether that teacher is an "otherwise qualified individual" for purposes of 20 U.S.C. '794, but such speculation is unnecessary given the circumstances of the case.
In view of this disposition, it is unnecessary to consider or discuss the other contentions of the parties.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that petitioner be suspended without pay for a period of two (2) years, commencing May 20, 1992, and terminating May 19, 1994.
END OF FILE