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Sunday, December 28, 2008

Francisco Olivares was Declared Innocent of all Charges at 3020-a, But the Charges Must Remain in his Record, Appellate Court Rules

The case of Francisco Olivares is interesting because he was totally exonerated by the 3020-a panel of arbitrators only to have the NYC BOE appeal to the New York State Commissioner to overturn the panel's decision, find Mr. Olivares guilty, and terminate him. The New York City BOE lost their appeal, fortunately. See the decision linked below.

However, all is not rosy. Mr. Olivares, now declared innocent of all charges, asked that the files held at the Administrative Trials Unit about the false allegations be expunged from his record. The Appellate Court said no.

Tuesday, January 22, 2008
Removing information about disciplinary charges from an employee’s records

Removing information about disciplinary charges from an employee’s records
Olivares v Board of Educ. of the City School Dist. of the City of New York, 39 A.D.3d 230

Francisco Olivares, a tenured teacher employed by the New York City Department of Education (DOE), sued in effort to have references to misconduct charges filed against him that had been dismissed expunged from the files of the DOE’s Administrative Trial Unit (ATU).

Olivares contended that removal of such information from his records is required by Education Law §3020-a(4)(b).

The Appellate Division disagreed, ruling that the Education Law does not require DOE to expunge references to dismissed charges from the ATU files, since those files are not “employment records” within the meaning of Education Law §3020-a(4)(b).[1]

In addition, said the court, 8 NYCRR Appendix I, requires the ATU to maintain records of dismissed disciplinary proceedings and charges for a minimum of three years after a final decision has been rendered.

[1] Education Law §3020-a(4)(b) provides: (b) Within fifteen days of receipt of the hearing officer’s decision the employing board shall implement the decision. If the employee is acquitted, he or she shall be restored to his or her position with full pay for any period of suspension without pay and the charges expunged from the employment record. If an employee who was convicted of a felony crime specified in paragraph (b) of subdivision two of this section, has said conviction reversed, the employee, upon application, shall be entitled to have his pay and other emoluments restored, for the period from the date of his suspension to the date of the decision.

By Harvey Randall, Esq. on Tuesday, January 22, 2008

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