As I have said many ties on this blog, 3020-a arbitration can be won, if you have a strong defense. My suggestion is that every teacher consider what he/she would do when or if charged with either incompetency or misconduct WAY BEFORE any charges are served. And, whomever is chosen to represent you if you are charged, should respect you and defend you vigorously.
Think about it. Your career is about to be changed without your consent. Don't let that happen.
Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials
Education Law
Title IV Teachers and Pupils
Article 61 Teachers and Supervisory and Administrative Staff
NY CLS Educ § 3020-a (2015)
§ 3020-a. Disciplinary procedures and
penalties
1. Filing of
charges. All charges against a person enjoying the benefits of tenure as
provided in subdivision three of section eleven hundred two, and sections
twenty-five hundred nine, twenty-five hundred seventy-three, twenty-five
hundred ninety-j, three thousand twelve and three thousand fourteen of this
chapter shall be in writing and filed with the clerk or secretary of the school
district or employing board during the period between the actual opening and
closing of the school year for which the employed is normally required to
serve. Except as provided in subdivision eight of section twenty-five hundred
seventy-three and subdivision seven of section twenty-five hundred ninety-j of
this chapter, no charges under this section shall be brought more than three
years after the occurrence of the alleged incompetency or misconduct, except
when the charge is of misconduct constituting a crime when committed.
2. Disposition of charges.
a. Upon receipt of the charges, the clerk or secretary of the school
district or employing board shall immediately notify said board thereof. Within
five days after receipt of charges, the employing board, in executive session,
shall determine, by a vote of a majority of all the members of such board,
whether probable cause exists to bring a disciplinary proceeding against an
employee pursuant to this section. If such determination is affirmative, a
written statement specifying (i) the charges in detail, (ii) the maximum
penalty which will be imposed by the board if the employee does not request a
hearing or that will be sought by the board if the employee is found guilty of
the charges after a hearing and (iii) the employee's rights under this section,
shall be immediately forwarded to the accused employee by certified or
registered mail, return receipt requested or by personal delivery to the
employee.
b. The employee may be suspended pending a hearing on the charges and
the final determination thereof. The suspension shall be with pay, except the
employee may be suspended without pay if the employee has entered a guilty plea
to or has been convicted of a felony crime concerning the criminal sale or
possession of a controlled substance, a precursor of a controlled substance, or
drug paraphernalia as defined in article two hundred twenty or two hundred
twenty-one of the penal law; or a felony crime involving the physical abuse of
a minor or student.
c. Where charges of misconduct constituting physical or sexual abuse
of a student are brought on or after July first, two thousand fifteen, the
board of education may suspend the employee without pay pending an expedited
hearing pursuant to subparagraph (i-a) of paragraph c of subdivision three of
this section. Notwithstanding any other law, rule, or regulation to the
contrary, the commissioner shall establish a process in regulations for a
probable cause hearing before an impartial hearing officer within ten days to
determine whether the decision to suspend an employee without pay pursuant to
this paragraph should be continued or reversed. The process for selection of an
impartial hearing officer shall be as similar as possible to the regulatory
framework for the appointment of an impartial hearing officer for due process
complaints pursuant to section forty-four hundred four of this chapter. The
hearing officer shall determine whether probable cause supports the charges and
shall reverse the decision of the board of education to suspend the employee
without pay and reinstate such pay upon a finding that probable cause does not
support the charges. The hearing officer may also reinstate pay upon a written
determination that a suspension without pay is grossly disproportionate in
light of all surrounding circumstances. Provided, further, that such an
employee shall be eligible to receive reimbursement for withheld pay and
accrued interest at a rate of six percent compounded annually if the hearing
officer finds in his or her favor, either at the probable cause hearing or in a
final determination pursuant to the expedited hearing held pursuant to
subparagraph (i-a) of paragraph c of subdivision three of this section. Any
suspension without pay shall last no longer than one hundred and twenty days
from the decision of the board of education to suspend the employee without pay
and such suspension shall only relate to employee compensation, exclusive of
other benefits and guarantees. Notwithstanding any other provision of law or
regulation to the contrary, any provision of a collective bargaining agreement
entered into by the city of New York as of April first, two thousand fifteen,
that provides for suspension without pay for offenses as specified in this
paragraph shall supersede the provisions hereof and shall continue in effect
without modification and may be extended.
d. The
employee shall be terminated without a hearing, as provided for in this
section, upon conviction of a sex offense, as defined in subparagraph two of
paragraph b of subdivision seven-a of section three hundred five of this
chapter. To the extent this section applies to an employee acting as a school
administrator or supervisor, as defined in subparagraph three of paragraph b of
subdivision seven-b of section three hundred five of this chapter, such
employee shall be terminated without a hearing, as provided for in this
section, upon conviction of a felony offense defined in subparagraph two of
paragraph b of subdivision seven-b of section three hundred five of this
chapter.
<1>
e. (i) For hearings commenced by the filing of charges prior to July
first, two thousand fifteen, within ten days
of receipt of the statement of charges, the employee shall notify the clerk or
secretary of the employing board in writing whether he or she desires a hearing
on the charges and when the charges concern pedagogical incompetence or issues
involving pedagogical judgment, his or her choice of either a single hearing
officer or a three member panel, provided that a three member panel shall not
be available where the charges concern pedagogical incompetence based solely
upon a teacher's or principal's pattern of ineffective teaching or performance
as defined in section three thousand twelve-c of this article. All other
charges shall be heard by a single hearing officer.
(ii) All hearings commenced by the filing of charges on or after July
first, two thousand fifteen shall be heard by a single hearing officer.
<1>f. The unexcused failure of
the employee to notify the clerk or secretary of his or her desire for a
hearing within ten days of the receipt of charges shall be deemed a waiver of
the right to a hearing. Where an employee requests a hearing in the manner provided
for by this section, the clerk or secretary of the board shall, within three
working days of receipt of the employee's notice or request for a hearing,
notify the commissioner of the need for a hearing. If the employee waives his
or her right to a hearing the employing board shall proceed, within fifteen
days, by a vote of a majority of all members of such board, to determine the
case and fix the penalty, if any, to be imposed in accordance with subdivision
four of this section.
3. Hearings.
a. Notice of hearing. Upon receipt of a request for a hearing in
accordance with subdivision two of this section, the commissioner shall
forthwith notify the American Arbitration Association (hereinafter
"association") of the need for a hearing and shall request the
association to provide to the commissioner forthwith a list of names of persons
chosen by the association from the association's panel of labor arbitrators to
potentially serve as hearing officers together with relevant biographical
information on each arbitrator. Upon receipt of said list and biographical
information, the commissioner shall forthwith send a copy of both
simultaneously to the employing board and the employee. The commissioner shall
also simultaneously notify both the employing board and the employee of each
potential hearing officer's record in the last five cases of commencing and
completing hearings within the time periods prescribed in this section.
b. (i) Hearing officers. All
hearings pursuant to this section shall be conducted before and by a single
hearing officer selected as provided for in this section. A hearing officer
shall not be eligible to serve in such position if he or she is a resident of
the school district, other than the city of New York, under the jurisdiction of
the employing board, an employee, agent or representative of the employing
board or of any labor organization representing employees of such employing
board, has served as such agent or representative within two years of the date
of the scheduled hearing, or if he or she is then serving as a mediator or fact
finder in the same school district.
(A) Notwithstanding any other provision of law, for
hearings commenced by the filing of charges prior to April first, two thousand
twelve, the hearing officer shall be compensated by the department with the
customary fee paid for service as an arbitrator under the auspices of the
association for each day of actual service plus necessary travel and other
reasonable expenses incurred in the performance of his or her duties. All other
expenses of the disciplinary proceedings commenced by the filing of charges
prior to April first, two thousand twelve shall be paid in accordance with
rules promulgated by the commissioner. Claims for such compensation for days of
actual service and reimbursement for necessary travel and other expenses for
hearings commenced by the filing of charges prior to April first, two thousand
twelve shall be paid from an appropriation for such purpose in the order in
which they have been approved by the commissioner for payment, provided payment
shall first be made for any other hearing costs payable by the commissioner,
including the costs of transcribing the record, and provided further that no
such claim shall be set aside for insufficiency of funds to make a complete
payment, but shall be eligible for a partial payment in one year and shall
retain its priority date status for appropriations designated for such purpose
in future years.
(B) Notwithstanding any other provision of law, rule
or regulation to the contrary, for hearings commenced by the filing of charges
on or after April first, two thousand twelve, the hearing officer shall be
compensated by the department for each day of actual service plus necessary
travel and other reasonable expenses incurred in the performance of his or her
duties, provided that the commissioner shall establish a schedule for maximum
rates of compensation of hearing officers based on customary and reasonable
fees for service as an arbitrator and provide for limitations on the number of
study hours that may be claimed.
(ii) The commissioner shall mail to the employing
board and the employee the list of potential hearing officers and biographies
provided to the commissioner by the association, the employing board and the
employee, individually or through their agents or representatives, shall by
mutual agreement select a hearing officer from said list to conduct the hearing
and shall notify the commissioner of their selection.
(iii) Within fifteen days after receiving the list of
potential hearing officers as described in subparagraph (ii) of this paragraph,
the employing board and the employee shall each notify the commissioner of
their agreed upon hearing officer selection. If the employing board and the
employee fail to agree on an arbitrator to serve as a hearing officer from the
list of potential hearing officers, or fail to notify the commissioner of a
selection within such fifteen day time period, the commissioner shall appoint a
hearing officer from the list. The provisions of this subparagraph shall not
apply in cities with a population of one million or more with alternative
procedures specified in section three thousand twenty of this article.
(iv) In those cases commenced
by the filing of charges prior to July first, two thousand fifteen in which
the employee elects to have the charges heard by a hearing panel, the hearing
panel shall consist of the hearing officer, selected in accordance with this
subdivision, and two additional persons, one selected by the employee and one
selected by the employing board, from a list maintained for such purpose by the
commissioner. The list shall be composed of professional personnel with
administrative or supervisory responsibility, professional personnel without
administrative or supervisory responsibility, chief school administrators,
members of employing boards and others selected from lists of nominees
submitted to the commissioner by statewide organizations representing teachers,
school administrators and supervisors and the employing boards. Hearing panel
members other than the hearing officer shall be compensated by the department
at the rate of one hundred dollars for each day of actual service plus
necessary travel and subsistence expenses. The hearing officer shall be
compensated as set forth in this subdivision. The hearing officer shall be the
chairperson of the hearing panel.
c. Hearing procedures.
(i) (A) The commissioner shall have
the power to establish necessary rules and procedures for the conduct of
hearings under this section.
(B) The department shall be authorized to monitor
and investigate a hearing officer's compliance with statutory timelines
pursuant to this section. The commissioner shall annually inform all hearing
officers who have heard cases pursuant to this section during the preceding
year that the time periods prescribed in this section for conducting such
hearings are to be strictly followed. A record of continued failure to commence
and complete hearings within the time periods prescribed in this section shall
be considered grounds for the commissioner to exclude such individual from the
list of potential hearing officers sent to the employing board and the employee
for such hearings.
(C) Such rules shall not require compliance with
technical rules of evidence. Hearings shall be conducted by the hearing officer
selected pursuant to paragraph b of this subdivision with full and fair
disclosure of the nature of the case and evidence against the employee by the
employing board and shall be public or private at the discretion of the
employee and provided
further that the hearing officer, at the pre-hearing conference, shall set a
schedule and manner for full and fair disclosure of the witnesses and evidence
to be offered by the employee. The employee shall have a
reasonable opportunity to defend himself or herself and an opportunity to
testify in his or her own behalf. The employee shall not be required to
testify. Each party shall have the right to be represented by counsel, to
subpoena witnesses, and to cross examine witnesses. All testimony taken shall
be under oath which the hearing officer is hereby authorized to administer. A child witness under the age of fourteen may be
permitted to testify through the use of live, two-way closed-circuit
television, as such term is defined in subdivision four of section 65.00 of the criminal procedure law, when the hearing
officer, after providing the employee with an opportunity to be heard,
determines by clear and convincing evidence that such child witness would
suffer serious mental or emotional harm which would substantially impair such
child's ability to communicate if required to testify at the hearing without
the use of live, two-way closed-circuit television and that the use of such
live, two-way closed-circuit television will diminish the likelihood or extent
of such harm. In making such determination, the hearing officer shall consider
any applicable factors contained in subdivision ten of section 65.20 of the criminal procedure law. Where the hearing
officer determines that such child witness will be permitted to testify through
the use of live, two-way closed-circuit television, the testimony of such child
witness shall be taken in a manner consistent with section 65.30 of the criminal procedure law.
(D) An accurate record of the proceedings shall be
kept at the expense of the department at each such hearing in accordance with
the regulations of the commissioner. A copy of the record of the hearings
shall, upon request, be furnished without charge to the employee and the board
of education involved. The department shall be authorized to utilize any new
technology or such other appropriate means to transcribe or record such
hearings in an accurate, reliable, efficient and cost-effective manner without
any charge to the employee or board of education involved.
(i-a) (A) <1><2><3>Where charges of misconduct constituting physical or sexual abuse
of a student are brought, the hearing shall be conducted before and by a single
hearing officer in an expedited hearing, which shall commence within seven days
after the pre-hearing conference and shall be completed within sixty days after
the pre-hearing conference. The hearing officer shall establish a hearing
schedule at the pre-hearing conference to ensure that the expedited hearing is
completed within the required timeframes and to ensure an equitable
distribution of days between the employing board and the charged employee.
Notwithstanding any other law, rule or regulation to the contrary, no
adjournments may be granted that would extend the hearing beyond such sixty
days, except as authorized in this subparagraph. A hearing officer, upon
request, may grant a limited and time specific adjournment that would extend
the hearing beyond such sixty days if the hearing officer determines that the
delay is attributable to a circumstance or occurrence substantially beyond the
control of the requesting party and an injustice would result if the
adjournment were not granted.
(B) The commissioner shall annually inform all hearing officers who
have heard cases pursuant to this section during the preceding year that the
time periods prescribed in this subparagraph for conducting expedited hearings
are to be strictly followed and failure to do so shall be considered grounds
for the commissioner to exclude such individual from the list of potential
hearing officers sent to the employing board and the employee for such
expedited hearings.
(ii) The hearing officer selected to conduct a
hearing under this section shall, within ten to fifteen days of agreeing to
serve in such position, hold a pre-hearing conference which shall be held in
the school district or county seat of the county, or any county, wherein the
employing school board is located. The pre-hearing conference shall be limited
in length to one day except that the hearing officer, in his or her discretion,
may allow one additional day for good cause shown.
(iii) At the pre-hearing conference the hearing
officer shall have the power to:
(A) issue subpoenas;
(B) hear and decide all motions, including but not
limited to motions to dismiss the charges;
(C) hear and decide all applications for bills of
particular or requests for production of materials or information, including,
but not limited to, any witness statement (or statements), investigatory
statement (or statements) or note (notes), exculpatory evidence or any other
evidence, including district or student records, relevant and material to the
employee's defense.
(iv) Any pre-hearing motion or application relative
to the sufficiency of the charges, application or amendment thereof, or any
preliminary matters shall be made upon written notice to the hearing officer
and the adverse party no less than five days prior to the date of the
pre-hearing conference. Any pre-hearing motions or applications not made as
provided for herein shall be deemed waived except for good cause as determined
by the hearing officer.
(v) In the event that at the pre-hearing conference
the employing board presents evidence that the professional license of the
employee has been revoked and all judicial and administrative remedies have
been exhausted or foreclosed, the hearing officer shall schedule the date, time
and place for an expedited hearing, which hearing shall commence not more than
seven days after the pre-hearing conference and which shall be limited to one
day. The expedited hearing shall be held in the local school district or county
seat of the county or any county, wherein the said employing board is located.
The expedited hearing shall not be postponed except upon the request of a party
and then only for good cause as determined by the hearing officer. At such
hearing, each party shall have equal time in which to present its case.
(vi) During the pre-hearing conference, the hearing
officer shall determine the reasonable amount of time necessary for a final
hearing on the charge or charges and shall schedule the location, time(s) and
date(s) for the final hearing. The final hearing shall be held in the local
school district or county seat of the county, or any county, wherein the said
employing school board is located. In the event that the hearing officer
determines that the nature of the case requires the final hearing to last more
than one day, the days that are scheduled for the final hearing shall be
consecutive. The day or days scheduled for the final hearing shall not be
postponed except upon the request of a party and then only for good cause shown
as determined by the hearing officer. In all cases, the final hearing shall be
completed no later than sixty days after the pre-hearing conference unless the
hearing officer determines that extraordinary circumstances warrant a limited
extension.
(vii) All evidence shall be submitted by all parties
within one hundred twenty-five days of the filing of charges and no additional
evidence shall be accepted after such time, absent extraordinary circumstances
beyond the control of the parties.
d. Limitation on claims. Notwithstanding any other provision of law,
rule or regulation to the contrary, no payments shall be made by the department
pursuant to this subdivision on or after April first, two thousand twelve for:
(i) compensation of a hearing officer or hearing panel member, (ii)
reimbursement of such hearing officers or panel members for necessary travel or
other expenses incurred by them, or (iii) for other hearing expenses on a claim
submitted later than one year after the final disposition of the hearing by any
means, including settlement, or within ninety days after the effective date of
this paragraph, whichever is later; provided that no payment shall be barred or
reduced where such payment is required as a result of a court order or judgment
or a final audit.
4. Post hearing procedures.
a. The hearing officer shall render a written decision within thirty
days of the last day of the final hearing, or in the case of an expedited
hearing within ten days of such expedited hearing, and shall forward a copy
thereof to the commissioner who shall immediately forward copies of the
decision to the employee and to the clerk or secretary of the employing board.
The written decision shall include the hearing officer's findings of fact on
each charge, his or her conclusions with regard to each charge based on said
findings and shall state what penalty or other action, if any, shall be taken
by the employing board. At the request of the employee, in determining what, if
any, penalty or other action shall be imposed, the hearing officer <1>may consider
the extent to which the employing board made efforts towards correcting the
behavior of the employee which resulted in charges being brought under this
section through means including but not limited to: remediation, peer
intervention or an employee assistance plan. In those cases where a penalty is
imposed, such penalty may be a written reprimand, a fine, suspension for a
fixed time without pay, or dismissal. In addition to or in lieu of the
aforementioned penalties, the hearing officer, where he or she deems appropriate,
may impose upon the employee remedial action including but not limited to
leaves of absence with or without pay, continuing education and/or study, a
requirement that the employee seek counseling or medical treatment or that the
employee engage in any other remedial or combination of remedial actions. Provided, however, that the hearing officer, in
exercising his or her discretion, shall give serious consideration to the
penalty recommended by the employing board, and if the hearing officer rejects
the recommended penalty such rejection must be based on reasons based upon the
record as expressed in a written determination.
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 or her pay and other emoluments
restored, for the period from the date of his or her suspension to the date of
the decision.
c. The hearing officer shall indicate in the decision whether any of
the charges brought by the employing board were frivolous as defined in section
eighty-three hundred three-a of the civil practice law and rules. If the
hearing officer finds that all of the charges brought against the employee were
frivolous, the hearing officer shall order the employing board to reimburse the
department the reasonable costs said department incurred as a result of the
proceeding and to reimburse the employee the reasonable costs, including but
not limited to reasonable attorneys' fees, the employee incurred in defending
the charges. If the hearing officer finds that some but not all of the charges
brought against the employee were frivolous, the hearing officer shall order
the employing board to reimburse the department a portion, in the discretion of
the hearing officer, of the reasonable costs said department incurred as a
result of the proceeding and to reimburse the employee a portion, in the
discretion of the hearing officer, of the reasonable costs, including but not
limited to reasonable attorneys' fees, the employee incurred in defending the
charges.
5. Appeal.
a. Not later than ten days after receipt of the hearing officer's
decision, the employee or the employing board may make an application to the
New York state supreme court to vacate or modify the decision of the hearing
officer pursuant to section seventy-five hundred eleven of the civil practice
law and rules. The court's review shall be limited to the grounds set forth in
such section. The hearing panel's determination shall be deemed to be final for
the purpose of such proceeding.
b. In no case shall the filing or the pendency of an appeal delay the
implementation of the decision of the hearing officer.
HISTORY:
Add, L 1970, ch 717, § 16, eff July
1, 1970, with substance transferred from §§ 2509(3, 3-a), 2573(8), 3012(3, 4),
3013(2-a, 3, 4), 3014(3, 4); amd, L 1971, ch 703, §§ 1-3; L 1973, ch 772, § 1, eff Sept 1, 1973; L 1977, ch 82,
§ 4, eff April 15, 1977; L 1978, ch 591, § 1, eff July 24, 1978; L 1994, ch 565, § 5 (repealed, L 1994, ch 691, § 4); L 1994, ch 691, § 3, eff Aug 25, 1994; L 2010, ch 103, §§ 3-5, eff July 1, 2010; L 2012, ch 57, § 1 (Part B), eff March 30, 2012; L 2015, ch 56, § 3 (Part EE, Subpart G), eff July 1,
2015.
NOTES:
Editor's Notes:
Laws 1994, ch 691, § 5, eff
Sept 1, 1994, provides as follows:
§ 5. This act shall take
effect on the thirtieth day after it shall have become a law and shall apply to
hearings commenced by the filing of charges pursuant to section 3020-a of the education law on or after such
date; provided, however, that section three of this act shall take effect on
the same day that a chapter of the laws of 1994 amending the public health law
and the education law relating to smoking, as proposed in legislative bills
numbers A.7139E/S.5021C takes effect.
Laws 2008, ch 296, § 4, eff
July 21, 2008, provides as follows:
§ 4. This act shall take
effect immediately and shall apply to convictions of teachers occurring on or
after such date.
Laws 2008, ch 325, § 4, eff
July 21, 2008, provides as follows:
§ 4. This act shall take
effect immediately and shall apply to convictions of school administrators or
supervisors occurring on or after such date.
Laws 2015, ch 56, § 2 (Part
EE), eff April 13, 2015, provides:
§ 2. This act shall be known
as the "education transformation act of 2015".
Amendment Notes:
2012. Chapter 57,
§ 1 (Part B) amended:
Sub 1 by deleting at fig 1
"one thousand one", at figs 2-4 "two thousand five" and
adding the matter in italics.
By redesignating former sub 2,
par (a) as sub 2, subsect heading and sub 2, par a.
Sub 2, par a by deleting at
fig 1 "outling" and adding the matter in italics.
By redesignating sub 2, pars
(b), (c) and (d) as sub 2, pars b, c and d, respectively.
Sub 2, par d by deleting at
fig 1 "of education".
By redesignating par of entire
sub 3, par b, subpar (i) as sub 3, par b, subpar (i) opening par and cl (A).
Sub 3, par b, subpar (i),
opening par deleting "as such" and adding the matter in italics.
Sub 3, par b, subpar (i), cl
(A) by deleting at fig 1 "of education" and adding the matter in
italics.
By adding sub b, par b, subpar
(i), cl (B).
Sub 3, par b, subpar (ii) by
deleting at fig 1 "Not later than ten days after the date the", at
fig 2 "mails" and adding the matter in italics.
By deleting former sub 3, par
b, subpar (iii) and adding sub 3, par b, subpar (iii).
Sub 3, par b, subpar (iv) by
deleting at figs 1 and 2 "of education", at fig 2
"chairman" and adding the matter in italics.
By redesignating entire sub 3,
par c, subpar (i) as part of sub 3, par c, subpar (i), cls (A), (C) and (D).
Sub 3, par c, subpar (i), cl
(A) by deleting at fig 1 "of education".
By adding sub 3, par c, subpar
(i), cl (B).
Sub 3, par c, subpar (i), cl
(D) by deleting at fig 1 "A competent stenographer, designated by the
commissioner of education and compensated by the state education department,
shall keep and transcribe a", at fig 2 "transcript" and adding
the matter in italics.
Sub 3, par c, subpar (ii) by
deleting at fig 1 "as such" and adding the matter in italics.
By adding sub 3, par c, subpar
(vii).
By adding sub 3, par d.
By redesignating sub 4, pars
(a), (b) and (c) as sub 4, pars a, b, c, respectively.
Sub 4, par a by deleting at
fig 1 "forthwith", at fig 2 "of education".
Sub 4, par b by deleting at
fig 1 "(b)" and adding the matter in italics.
Sub 4, par c by deleting at
fig 1 "eight thousand three", at fig 2 "officers", at figs
3 and 4 "state education" and adding the matter in italics.
By designating part of sub 5,
undesignated par as sub 5, pars a and b.
Sub 5, par a by deleting at
fig 1 "seven thousand five" and adding the matter in italics.
The 2015 amendment by ch
56, § 3 (Part EE, Subpart G), added 2c and 2e(ii); added the 2d and
2e(i) designations; redesignated former 2c and 2d as 2e and 2f; added "For
hearings commenced by the filing of charges prior to July first, two thousand
fifteen" in the first sentence of 2e(i); added "commenced by the
filing of charges prior to July first, two thousand fifteen" in the first
sentence of 3b(iv); in 3c(i)(C), added "and provided further that the
hearing officer, at the pre-hearing conference, shall set a schedule and manner
for full and fair disclosure of the witnesses and evidence to be offered by the
employee" in the second sentence and added the last three sentences;
rewrote 3c(i-a)(A) and 3c(i-a)(B); deleted former rewrote 3c(i-a)(C); and in
4a, substituted "may consider" for "shall consider" in the
third sentence and added the last sentence.
Cross References:
This section referred to in §§
1102, 2509, 2573, 2590-j, 3012, 3014.
Proceeding against body or
officer, CLS CPLR §§ 7801 et seq.
Codes, Rules and Regulations:
Teachers; hearings of charges
against employees on tenure. 8 NYCRR §§ 82.1 et seq.
Jurisprudences:
Notes to Decisions
1.
In general 2.
Validity 3.
Persons protected, generally 4.
--Where tenure gained by acquiescence or estoppel 5.
--Effect of different tenure areas 6.
--Effect of lack of certification 7.
Rights of the accused, generally 8.
--Due process 9.
--Waiver 10.
Effect of contracts and agreements 11.
--Arbitration 12.
Preferring or filing charges 13.
Specification of charges 14.
Limitation periods 15.
Suspension pending hearing, generally 16.
--Without pay 17.
-- --Constitutionality 18.
-- --Obstruction or delay by teacher 19.
-- --Negotiation or agreement 20.
-- --Back pay 21.
-- --Interim earnings 22.
Hearing, generally 23.
--Applicability 24.
--Power to regulate procedure 25.
--Participation in decision 26.
--Dismissal of charges 27.
--Evidence and burden of proof 28.
-- --Standard of proof 29.
-- --Admissibility 30.
-- -- --Prior acts 31.
-- -- --Rules of evidence 32.
-- -- --Sufficient evidence or proved charge 33.
-- -- --Insufficient evidence or unproved charge 34.
--Payment of panel 35.
Post-hearing procedures, generally; report of findings 36.
Penalties and punishment, generally 37.
--Penalties permitted 38.
--What constitutes penalty or punishment 39.
--Reprimand 40.
--Fine 41.
--Suspension, generally 42.
-- --Suspension appropriate 43.
-- -- --Versus dismissal or termination 44.
-- -- --Physical force or contact 45.
-- -- --Failure to follow procedures 46.
-- -- --Absenteeism 47.
-- -- --Failure to control class 48.
-- --Suspension inappropriate 49.
-- -- --Suspension too lenient 50.
--Dimissal, generally 51.
-- --Dismissal appropriate 52.
-- -- --Physical force or contact 53. -- -- --Failure
to follow procedures or carry out normal duties 54.
-- -- --Lack of class discipline or control 55.
-- -- --Absenteeism 56.
-- --Dismissal inappropriate 57.
--Placing letter in personnel file 58.
Reinstatement 59.
Administrative review 60.
Judicial remedies and review, generally 61.
--Article 78 proceedings and the like 62.
-- --Conversion to declaratory judgment 63.
-- --Actions to enjoin, prohibit or preclude 64.
-- --Time limitations 65.
-- --Parties 66.
--Review of particular findings 67.
-- --Physical force or contact 68.
-- --Failure to carry out normal duties 69.
-- --Sexual content of class material 62.
-- Article 78 proceedings and the like
Notes to Unpublished Decisions
1.
Hearing, generally 2.
--Power to regulate procedure 60.
Judicial remedies and review, generally 66.
--Review of particular findings
1.
In general
Petitioner
who voluntarily submitted and failed to timely rescind unconditional
application for service retirement was not entitled to relief in nature of
mandamus, compelling respondent Board of Cooperative Educational Services to
reinstate him to his position as occupational guidance counselor, based on his
contention that he could not be considered separated from his employment until
board took action under CLS Educ § 3020-a, since § 3020-a merely outlines
procedure board must follow when terminating tenured teacher involuntarily. Cannon v Ulster County Bd. of Coop.
Educational Services, 155 A.D.2d 846, 548 N.Y.S.2d 107, 1989 N.Y. App. Div.
LEXIS 14348 (N.Y.
App. Div. 3d Dep't 1989).
In
proceeding by teacher who sought disclosure pursuant to Freedom of Information
Law of various documents related to his termination, court properly found that
CLS Pub O § 87(2)(g) precluded disclosure of chancellor's committee reports,
CLS Educ § 3020-a reports, and "unsatisfactory" lesson observation reports
in possession of school district, since all such material was inter-agency
materials which were not statistical or factual tabulations or data,
instructions to staff that affected public, or final agency policy or
determinations. Elentuck v Green, 202 A.D.2d 425, 608
N.Y.S.2d 701, 1994 N.Y. App. Div. LEXIS 1956 (N.Y. App. Div. 2d Dep't), app. denied, 84 N.Y.2d 809, 621 N.Y.S.2d 519, 645
N.E.2d 1219, 1994 N.Y. LEXIS 4222 (N.Y. 1994).
Chapter
82 of the Laws of 1977, amending section 3020-a of the Education Law, enacted
and effective as of April 15, 1977, as it relates to composition of the tenure
hearing panel and the nature of its decision shall and does apply only to
tenure hearings commenced after the effective date thereof. Accordingly,
respondent board of education acted properly, both procedurally and
jurisdictionally, based on prior law in its determination of a proceeding to
dismiss petitioner tenured teacher for failure to maintain certification commenced
approximately 18 months prior to April 15, 1977, but not determined by it until
May 23, 1977. Meliti v Board of Education, 92 Misc.
2d 473, 400 N.Y.S.2d 495, 1977 N.Y. Misc. LEXIS 2571 (N.Y. Sup. Ct. 1977), aff'd, 64 A.D.2d 631, 406 N.Y.S.2d 874, 1978
N.Y. App. Div. LEXIS 12421 (N.Y.
App. Div. 2d Dep't 1978).
Tenured
physical education teacher had no legal basis to challenge school
administration's authority to assign her to teaching duties that involved
supervision of study hall and precluded her from exercising sole responsibility
for student grades, and her claim that such assignment constituted improper
imposition of discipline was dismissed where respondents attested in sworn
affidavits that assignment was made taking into account petitioner's skills,
abilities and tenure area, as well as school district's needs. 2003 Op Comm Ed
No. 15,010.
Tenured
guidance counselor failed to show that respondents' decision to relocate her
office and modify her duties was disciplinary in nature, or that hearing under
CLS Educ § 3020-a was required, where she failed to submit any evidence as to
conduct for which she was allegedly being disciplined, and superintendent
averred that district's administrative team determined that petitioner's narrow
focus at high school level was not best use of her services, that she needed to
have more dynamic and physical presence at middle school to be effective
supervisor, that new focus on more direct contact with middle school guidance
counselors was based on educational and managerial need, and that petitioner
now had offices in both high school and middle school, both equipped with
phones, computers and clerical support. 2010 Op Comm Ed No. 16,162, 2010 NY Educ. Dept. LEXIS 156.
Respondents'
contention that transfer of school principal was for "the good of the
district" did not necessarily render it not disciplinary in nature. 2000
Op Comm Ed No. 14,373.
Record
did not support petitioner's claim that his transfer from position of High
School Principal to untitled position as principal performing various
administrative duties was made to punish him for alleged misconduct, in
violation of CLS Educ § 3020-a, where only evidence he presented was local
newspaper story asserting that unnamed sources stated that he had been
transferred as result of his misconduct; failure of respondent to elaborate on
school superintendent's conclusion that petitioner's reassignment would improve
school administration did not establish that transfer was disciplinary. 2007 Op
Comm Ed No. 15,539.
Counseling
letter placed in petitioner's personnel file, addressing 3 specific instances
of alleged inappropriate behavior with students, amounted to administrative
evaluation rather than reprimand, and thus respondents were not required to
comply with procedural protections of CLS Educ § 3020-a; letter was issued by
single administrator and not board of education, its purpose was to call
petitioner's attention to his breaches of school policy and encourage future
compliance with such policies, and, while it criticized his job performance and
he was subsequently not reappointed as school's football coach, he was not
terminated from his tenured guidance counselor position. 2007 Op Comm Ed No.
15,623.
Education
Law § 3020-a does not require that conduct complained of result in criminal
conviction. Re Board of Education of East Irondequoit Central School District,
Op Comr Ed #10550.
It is
only after probable cause is found that tenured employee is to be accorded
opportunity for formal hearing requiring use of sworn testimony,
cross-examination, and appearance and participation of accused, and board of
education should make determinations as to probable cause within 5 days after
receipt of charges, as provided by statute. Re Appeal of Duerr, 1987 Op. Comm.
Ed. No. 11811.
Disciplinary
action taken against tenured teacher as result of her excessive absences, most
of which were workers' compensation leave days, did not violate CLS Work Comp §
120, which precludes employer from retaliating against employees for claiming
or attempting to claim workers' compensation benefits, as only Workers
Compensation Board may enforce provisions of § 120; moreover, evidence did not
support teacher's claim that charges were brought against her for filing
workers' compensation claim. 1994 Op Comm Ed No. 13278.
CLS Educ
Law § 913 does not authorize termination of employment for failure to undergo
psychiatric evaluation, and to formally effect separation from employment,
board of education must comply with requirements of CLS Educ Law § 3020-a,
however, as long as teacher refuses to comply with board's reasonable request
to undergo psychiatric evaluation, board may continue to withhold salary
payments to teacher. 1989 Op Comr Ed No. 12188.
Section
3020a of the Education Law provides the exclusive procedure for disciplinary
action against tenured school district employees. Until that procedure has been
followed, a board of education's reduction of a district principal's salary
from $ 25,000 per year to $ 17,000 per year is arbitrary and capricious, and
must be set aside. Ops Educ Comm'r No. 9167.
2. Validity
Section
3020-a of the Education Law, as amended by chapter 82 of the Laws of 1977,
which provides that the chairman of a panel hearing charges against a tenured
person be chosen from a list furnished by the American Arbitration Association,
is not unconstitutional as a private bill granting an exclusive franchise (NY
Const, art III, § 17), since the bill, which revised the State-wide procedure
for the hearing of charges against a tenured person, was clearly a general law,
and the fact that the association was reimbursed for its administrative
expenses in preparing the list, or that a person from its list is to be
compensated at the rates usually paid him for his services as an arbiter for
the association, does not make the law a grant of an exclusive franchise or a
private bill; the association merely presents, on an objective and nonpartisan
basis, the names of individuals exceptionally qualified by prior service in the
field of adversarial hearings for service as chairman of a hearing panel under
section 3020-a, and appointment from the list is not made by the association. Board of Education v Gootnick, 49
N.Y.2d 683, 427 N.Y.S.2d 777, 404 N.E.2d 1318, 1980 N.Y. LEXIS 2191 (N.Y.
1980).
Tenured
teacher was not entitled to due process hearing pursuant to CLS Educ § 3020-a
prior to insertion of critical letters into his personnel file since such
letters, which indicated that school principal was reprimanding him,
constituted administrative evaluation, not discipline within purview of
statute. Te Bordo v Cold Spring Harbor Cent.
School Dist., 126 A.D.2d 542, 510 N.Y.S.2d 665, 1987 N.Y. App. Div. LEXIS 41676 (N.Y. App. Div. 2d Dep't), app. denied, 70 N.Y.2d 605, 519 N.Y.S.2d 1028, 513
N.E.2d 1308, 1987 N.Y. LEXIS 18210 (N.Y. 1987).
School
district improperly disclaimed award of tenure where teacher received
certificate of completion of probation and was granted tenure under mistaken
belief that he was entitled to credit toward his probationary period for time
served as per diem substitute; granting of tenure was not unauthorized,
unlawful, or against public policy, and thus school district was required to
follow procedures outlined in CLS Educ §§ 2573(5) and 3020-a before removing
teacher from service. Saul v Board of Education, 138 A.D.2d
714, 526 N.Y.S.2d 528, 1988 N.Y. App. Div. LEXIS 3308 (N.Y. App. Div. 2d Dep't 1988).
Chapter
82 of the Laws of 1977, amending section 3020-a of the Education Law, enacted
and effective as of April 15, 1977, as it relates to composition of the tenure
hearing panel and the nature of its decision shall and does apply only to
tenure hearings commenced after the effective date thereof. Accordingly,
respondent board of education acted properly, both procedurally and
jurisdictionally, based on prior law in its determination of a proceeding to
dismiss petitioner tenured teacher for failure to maintain certification
commenced approximately 18 months prior to April 15, 1977, but not determined
by it until May 23, 1977. Meliti v Board of Education, 92 Misc.
2d 473, 400 N.Y.S.2d 495, 1977 N.Y. Misc. LEXIS 2571 (N.Y. Sup. Ct. 1977), aff'd, 64 A.D.2d 631, 406 N.Y.S.2d 874, 1978
N.Y. App. Div. LEXIS 12421 (N.Y.
App. Div. 2d Dep't 1978).
Respondent
violated teacher's tenure rights by refusing to reappoint him to part-time
position without following due process procedures prescribed in CLS Educ §
3020-a; teacher did not waive his existing tenure rights by accepting part-time
teaching position after respondent abolished his full-time position or by
subsequently refusing full-time teaching position offered by respondent prior
to expiration of his 7-year preferred eligibility period, he served
continuously in his part-time position for 7 years, and he was not discharged
for cause. 2008 Op Comm Ed No. 15,718.
Although
Education Law § 3020-a now refers to "a person enjoying the benefit of
tenure as provided in . . . § 2573", provisions of § 3020-a did not apply
to any employees in City School District of the City of New York prior to 1977
amendment, and amendment was not intended to change procedure for hearing
charges against persons holding permanent positions in classified service under
§ 2573(4); charges against custodian-engineer were to be adjudicated pursuant
to Civil Service Law § 75. Re Brooks, 1979 Op Comr Ed #10082.
Petitioner
was not entitled to formal disciplinary proceeding under CLS Educ § 3020-a
where his appointment to tenure was "conditional appointment," and
his status was rescinded by board of education. 2004 Op Comm Ed No. 15060.
An
assistant accountant employed by a city school district was entitled to receive
his salary for any period of suspension following the effective date of chapter
82 of the laws of 1977 until the date of the district's decision in this case,
since the district lacked the authority to suspend petitioner without pay
pursuant to this section. Re Goodman, Op Comr Ed No. 9661.
Individual
who pursuant to participation in school district's Leadership Apprentice
Training Program served as assistant junior high principal for 3 school years
was entitled to tenure in such position and thus was not subject to dismissal
unless statutory provisions relating to dismissal of a tenured administrator
were complied with. Opinions of Education Comr. No. 8715.
School
district did not violate nontenured substitute teacher's constitutional right
to equal protection of law by failing to afford him same due process afforded
tenured teachers prior to termination of their services, since United States
Supreme Court recognizes tenure as property right, deprivation of which
entitles tenured teacher to due process protections not enjoyed by nontenured
teachers. 1993 Op Com Ed No. 13041.
4. --Where tenure gained by acquiescence or estoppel
The power
to enter into employment contracts is vested exclusively in boards of
education. A school superintendent's recommendation that a school principal
receive tenure did not therefore operate as a modification of the principal's
contract with the school board under the doctrine of estoppel and acquiescence,
the principal's probationary period did not expire until 120 days after the
expiration date of his contract of employment, and he was therefore still
serving his probationary term at the time of his termination and was not
entitled to a hearing pursuant to Educ Law § 3020-a. Kight v Wyandanch Union Free School
Dist., 84 A.D.2d 749, 443 N.Y.S.2d 751, 1981 N.Y. App. Div. LEXIS 15923 (N.Y. App. Div. 2d Dep't 1981), aff'd, 56 N.Y.2d 606, 450 N.Y.S.2d 480, 435
N.E.2d 1095, 1982 N.Y. LEXIS 3279 (N.Y. 1982).
While a
teacher, during his probationary period, accepted an offer of tenure that was
to begin after the end of his probationary period, a board of education had a
right to rescind the offer before the effective date of the tenure, and the
board had a right to do so without giving the teacher a hearing pursuant to
N.Y. Educ. Law § 3020-a;, and an education commissioner's decision upholding
the termination of the teacher's position was rational. Therefore, there was no
merit to the teacher's claim that he had acquired tenure by estoppel because he
failed to prove that he had performed any actual services for the board after
his probationary period ended. Matter of Mahoney v Mills, 29 A.D.3d
1043, 814 N.Y.S.2d 365, 2006 NY Slip Op 3484, 2006 N.Y. App. Div. LEXIS 5902 (N.Y. App. Div. 3d Dep't), app. denied, 7 N.Y.3d 708, 822 N.Y.S.2d 482, 855
N.E.2d 798, 2006 N.Y. LEXIS 2544 (N.Y. 2006).
Because a
substitute teacher consistently taught social studies to sixth graders for
approximately 17 years prior to a probationary appointment in common branches,
and because the department of education failed to grant or deny tenure before
June 30, 2004, the teacher qualified for the Jarema credit in N.Y. Educ. Law §
2573(1)(a), acquired tenure by estoppel, and could not be terminated without
first being subject to the formal disciplinary proceedings in N.Y. Educ. Law §§
3020-a, 2573(5); therefore, the lower court erred in denying the teacher's N.Y.
C.P.L.R. art. 78 application. Matter of Triana v Board of Educ. of
the City School Dist. of the City of New York, 47 A.D.3d 554, 849 N.Y.S.2d 569,
2008 NY Slip Op 607, 2008 N.Y. App. Div. LEXIS 577 (N.Y. App. Div. 1st Dep't 2008).
Respondent's
knowledge that petitioner had previously obtained tenure as teaching assistant
in another school district reduced her probationary period to 2 years when she
was hired as special education teacher in respondent district, and thus she
acquired tenure by estoppel in special education area at end of her 2-year
probationary period, and respondent could not thereafter discharge her except
for cause. 2005 Op Comm Ed No. 15,172.
Respondent's
termination of petitioner after she acquired tenure by estoppel, in violation
of CLS Educ §§ 3014, 3020 and 3020-a, was arbitrary, capricious and abuse of
discretion; petitioner was entitled to be restored to full-time tenured
position, back pay and benefits. 2005 Op Comm Ed No. 15,328.
Petitioner
who served as department chairman from the 1967-1968 school year through the
1973-1974 school year acquired tenure by acquiescence in such position though
he never received a formal probationary appointment. Accordingly, his services
could only be terminated in accordance with Educ L § 3020-a. Ops Educ Comm'r
No. 8980.
5. --Effect of different tenure areas
Where
tenured teacher was certified in French and also taught courses in mathematics
and English and introduction to business, she was not subject to dismissal as
the least tenured French teacher by school board which hired new mathematics
and English teacher for the ensuing term with less seniority than the dismissed
tenured teacher; if such tenured teacher was unqualified for position because
of lack of certification in particular subject she must be removed pursuant to
statutes relating to removal for cause. Amos v Union Free School Dist., 47
A.D.2d 711, 364 N.Y.S.2d 640, 1975 N.Y. App. Div. LEXIS 8957 (N.Y. App. Div. 4th Dep't 1975).
Tenured
teacher was entitled to hearing prior to annulment of his provisional
certificate even though, by his failure to obtain the necessary credits, he did
not qualify for permanent certification as a teacher. Meliti v Nyquist, 53 A.D.2d 951, 385
N.Y.S.2d 407, 1976 N.Y. App. Div. LEXIS 15747 (N.Y. App. Div. 3d Dep't), modified, 41 N.Y.2d 183, 391 N.Y.S.2d 398, 359
N.E.2d 988, 1976 N.Y. LEXIS 3219 (N.Y. 1976).
Teacher
who was employed by school board continually for more than three years, during
which time she held positions, for which she was certified, as librarian,
elementary school classroom teacher, and secondary school social studies
teacher, was tenured teacher and entitled to hearing prior to being discharged
where, in leaving her initial position with board as librarian and taking on
duties of elementary school teacher, she was not sufficiently alerted to fact
that she was entering entirely independent tenure area in which her previous
experience would not be relevant in determining seniority; under circumstances,
librarian and elementary school teacher were not two separate tenure areas. Hannan v Board of Education, 55
A.D.2d 647, 390 N.Y.S.2d 148, 1976 N.Y. App. Div. LEXIS 15396 (N.Y. App. Div. 2d Dep't 1976), app. denied, 42 N.Y.2d 801, 1977 N.Y. LEXIS 3640
(N.Y. 1977).
In a
proceeding pursuant to CPLR article 78 brought by a permanently certified,
tenured teacher who was suspended without pay pending the determination of
disciplinary proceedings arising from the teacher's failure to obtain
certification in her assigned teaching area, special education, wherein
petitioner also asserted that the board of education unlawfully refused to
appoint her in violation of her seniority and tenure rights to a full-time
teaching position in elementary education, which she maintained was her area of
specialization, there was a question of fact requiring a hearing as to whether
petitioner had been granted tenure in the special education tenure area or the
elementary teaching area; to establish that petitioner was tenured in special
education as opposed to the general elementary area, there must be evidence
that special education was traditionally treated as a separate and distinct
tenure area by the board and that persons hired for the position were
sufficiently alerted to the fact that in taking on the duties of special
education they were entering an entirely independent tenure area. Bali v Board of Education, 68 A.D.2d
360, 416 N.Y.S.2d 933, 1979 N.Y. App. Div. LEXIS 10948 (N.Y. App. Div. 4th Dep't), app. dismissed, 48 N.Y.2d 630, 421 N.Y.S.2d 193, 396
N.E.2d 475, 1979 N.Y. LEXIS 2285 (N.Y. 1979).
Petitioner's
prior tenure as teaching assistant reduced her subsequent probationary period
as teacher in cosmetology tenure area, in another district, from 3 to 2 years,
where respondent knew of her prior tenure status at time of her probationary
appointment based on her employment application; thus, petitioner acquired
tenure by estoppel when respondents failed to take any action and permitted her
to teach beyond expiration of her probationary term. 2005 Op Comm Ed No.
15,328.
Tenured
middle school music teacher, who Commissioner found had tenure for all grade
levels, could not be terminated from elementary music position except in
compliance with Education L § 3020-a. Re Jones, Op Comr Ed #9547.
Principal
cannot contend that he was improperly transferred from position in middle
school to position in elementary school where there is no showing that school
district has maintained separate tenure classifications for middle and
elementary schools and accompanying reduction in salary does not constitute
attempt to discipline him without following procedures set forth in Education
Law § 3020-a where such reduction in salary reflects diminished responsibilities
of position of principal of elementary school. Re Archanbault, 1979 Op Comm
Educ No. 9928.
6. --Effect of lack of certification
Determination
of commissioner affirming tenured teacher's dismissal was purely arbitrary
where dismissal was illegal, the board having failed to comply with the
procedures provided by Education L § 3012 and § 3020-a, and where teacher's
lack of certification in subjects taught did not abrogate her protection under
Education L § 2510, subd 2. Lynch v Nyquist, 41 A.D.2d 363, 343
N.Y.S.2d 179, 1973 N.Y. App. Div. LEXIS 4543 (N.Y. App. Div. 3d Dep't 1973), aff'd, 34 N.Y.2d 588, 354 N.Y.S.2d 948, 310
N.E.2d 544, 1974 N.Y. LEXIS 1816 (N.Y. 1974).
Where
tenured teacher was certified in French and also taught courses in mathematics
and English and introduction to business, she was not subject to dismissal as
the least tenured French teacher by school board which hired new mathematics
and English teacher for the ensuing term with less seniority than the dismissed
tenured teacher; if such tenured teacher was unqualified for position because
of lack of certification in particular subject she must be removed pursuant to
statutes relating to removal for cause. Amos v Union Free School Dist., 47
A.D.2d 711, 364 N.Y.S.2d 640, 1975 N.Y. App. Div. LEXIS 8957 (N.Y. App. Div. 4th Dep't 1975).
Evidence
supported hearing panel's determination that tenured teacher was guilty of
failing to prepare proper lesson plans where record showed that his lesson
plans were seriously deficient despite repeated counseling directives and
offers of assistance made to him over extended period of time, and that he was
aware of displeasure of school district with inadequacies of his lesson plans
and interrelated concerns about his teaching effectiveness and classroom
performance, as well as how deficiencies could be rectified. Meyer v Board of Educ. of Charlotte
Valley Cent. School Dist., 182 A.D.2d 873, 581 N.Y.S.2d 920, 1992 N.Y. App.
Div. LEXIS 5292 (N.Y.
App. Div. 3d Dep't 1992).
Teacher's
employment was properly terminated without a hearing because the teacher did
not acquire tenure by estoppel as (1) the teacher did not have a teaching
certificate when the teacher taught under an intern certificate, (2) the
teacher ordinarily had to serve a three-year probationary term before being
awarded tenure, (3) while the teacher could serve as a teacher without a
teaching certificate, the teacher could not earn credit towards achieving
tenure without a teaching certificate, and, (4) to earn "Jarema"
credit, reducing the period the teacher had to serve to earn tenure, under N.Y.
Educ. Law § 2573(1)(a), the teacher had to have a teaching certificate, so the
teacher's first year of teaching as a substitute pursuant to an intern
certificate was properly not credited toward tenure. Matter of Berrios v Board of Educ. of
Yonkers City School Dist., 87 A.D.3d 329, 927 N.Y.S.2d 368, 2011 NY Slip Op
5804, 2011 N.Y. App. Div. LEXIS 5663 (N.Y.
App. Div. 2d Dep't), app. denied, 17 N.Y.3d 712, 933 N.Y.S.2d 652, 2011
NY Slip Op 86838, 957 N.E.2d 1156, 2011 N.Y. LEXIS 3033 (N.Y. 2011).
Dismissal
of certified teachers of the deaf while retaining teachers senior in tenure,
but lacking certification as teachers of the deaf, held improper. Ops Educ
Comm'r No. 9152.
7. Rights of the accused, generally
Where
board of education denied teacher's request for bifurcated procedure prescribed
by Education Law § 3020-a, such error mandated that board's determination to
dismiss teacher be vacated and the case remanded for a new hearing in
compliance with such procedure where board offered no proof that it was unable
for some legitimate reason to meet the mandates of Education Law § 3020-a at
time of teacher's hearing, and where such statute, though not in effect at time
board brought its action, was in effect when hearing arose. Clayton v Clement, 33 N.Y.2d 386, 353
N.Y.S.2d 173, 308 N.E.2d 690, 1974 N.Y. LEXIS 1709 (N.Y. 1974).
Commissioner
of Education properly denied board of education's request to terminate tenured
teacher for refusal to answer questions during sworn examination by office of
Special Commissioner of Investigation because (1) executive order and board
resolution which created special commission were properly construed as being in
conflict with CLS Educ § 3020-a, which provides that employee shall not be
required to testify at his or her disciplinary hearing, and (2) under
principles of home rule, § 3020-a was controlling; thus, where there was no
error with respect to penalty imposed for teacher's underlying misconduct,
Article 78 petition to review commissioner's determination was properly
dismissed. Board of Educ. v Mills, 250 A.D.2d
122, 680 N.Y.S.2d 683, 1998 N.Y. App. Div. LEXIS 11900 (N.Y. App. Div. 3d Dep't 1998), app. denied, 93 N.Y.2d 803, 689 N.Y.S.2d 16, 711
N.E.2d 201, 1999 N.Y. LEXIS 767 (N.Y. 1999), app. denied, 1999 N.Y. LEXIS 711 (N.Y. Mar. 30, 1999), app. denied, 1999 N.Y. LEXIS 712 (N.Y. Mar. 30, 1999).
Defendant
was not entitled to enter judicial diversion into drug treatment without entry
of guilty plea because suspension or revocation of his teaching license was not
presumptively mandatory or automatic, but was rather possible and uncertain
with intervening circumstances and thus was not an exception circumstance under
N.Y. Crim. Proc. Law § 216.05(4)(b); under N.Y. Educ. Law § 3020-a(2)c,
defendant was afforded the right to a hearing by the Department of Education.
To permit a teacher, entrusted with the safety of children to enter Judicial
Diversion without taking a plea of guilty, would have permitted defendant to
circumvent the purpose of the Education Law, which was to review each case
individually and entrust the Commissioner of the Department of Education with
the duties and responsibilities under N.Y. Educ. Law §§ 305, 3020. People v Duffy, 902 N.Y.S.2d 805,
2010 NY Slip Op 20218, 2010 N.Y. Misc. LEXIS 1523 (N.Y. Sup. Ct. 2010).
School
district and officials were entitled to summary judgment on a teacher's claim
that he was disciplined under N.Y. Educ. Law § 3020-a in retaliation for
developing a faculty survey that expressed the view that the school district's
board of education was incompetent where the court held that the teacher's
letter to parents that he was unqualified to teach American history was not
protected by the First Amendment. The letter related primarily to the teacher's
personal situation, and he was motivated by a desire to express his own
personal frustration and dissatisfaction with the school board's decision to
change his teaching assignment; even if the letter did address a matter of
public concern, the teacher's First Amendment rights would be outweighed by the
school district's interest in running the school free from interference. Levich v Liberty Cent. Sch. Dist.,
361 F. Supp. 2d 151, 2004 U.S. Dist. LEXIS 26101 (S.D.N.Y. 2004).
Involuntary
transfer of petitioner from her position of principal at one school to
assistant principal at another school was disciplinary in nature, and illegally
deprived her of protections under CLS Educ § 3020-a, notwithstanding
respondent's claims that transfer was "in the best interest of the School
District" and was within superintendent's authority under CLS Educ §§ 1711
and 2508. 2000 Op Comm Ed No. 14,373.
Respondent
abused its discretion in imposing total ban on high school guidance counselor's
access to district property, since ban was not "narrowly limited in
scope" although it was characterized as "temporary" and
"for the time being," absent evidence as to when and under what
circumstances ban would be lifted; ban prohibited petitioner from entering
district property for any reason (e.g., to vote in elections or attend
parent/teacher conferences for her children) regardless of whether her presence
at particular activity or event bore any relation to disciplinary charges
pending against her under CLS Educ § 3020-a. 2008 Op Comm Ed No. 15,855.
Salary
reduction based on school board's dissatisfaction with principal's work is
disciplinary action, for which § 3020-a provides exclusive procedure with
respect to tenured school district employee; until that procedure has been
followed, salary reduction is arbitrary and capricious and is set aside. Re
Trono, 1978 Op Comr Ed No. 9871.
CLS Educ
Law § 3020-a does not require that teacher communicate excuse for failure to
demand hearing within 10 days after receipt of charges in order to be entitled
to waiver of 10 day time limit for requesting hearing. 1989 Op Comr Ed No.
12200.
Tenured
teacher was not guilty of insubordination for failing to answer questions posed
by Office of the Special Commissioner of Investigations for the New York City
Board of Education since criminal prosecution was not at issue, and immunity
granted to teacher would not shield him from charges under CLS Educ § 3020-a;
unique provisions of § 3020-a are only means to discipline tenured teacher in
New York State and do not require employee to testify at § 3020-a hearing. 1996
Op Comm Ed No. 13589.
8. --Due process
Where
teacher and his union representative were summoned to superintendent's office
at time he was informed of suspension decision, and were presented with facts
upon which suspension was based and allowed to give teacher's version of the
facts, flexible, informal requirements of due process were met for teacher, who
was assured of hearing if he desired one and other procedural protections of Education Law. Jerry v Board of
Education, 50 A.D.2d 149, 376 N.Y.S.2d 737, 1975 N.Y. App. Div. LEXIS 11458 (N.Y. App. Div. 4th Dep't 1975), app. dismissed, 39 N.Y.2d 1057, 387 N.Y.S.2d 1034,
1976 N.Y. LEXIS 3567 (N.Y. 1976).
Fact that
two members of the board of education were present in the principal's office
during the time when the board's attorney talked with students about complaints
against tenured elementary school teacher did not justify, on due process
grounds, an annulment of the board's finding that teacher was guilty of
misconduct where there was no showing that board did not make its determination
solely upon the evidence adduced on the record. Bott v Board of Education, 51 A.D.2d
81, 379 N.Y.S.2d 172, 1976 N.Y. App. Div. LEXIS 10668 (N.Y. App. Div. 3d Dep't 1976), modified, 41 N.Y.2d 265, 392 N.Y.S.2d 274, 360
N.E.2d 952, 1977 N.Y. LEXIS 1815 (N.Y. 1977).
Fact that
provision of Education Law requires board of education to combine investigative
and decision-making functions did not work denial of due process to tenured
teacher who was dismissed because she lacked certification in area of social
studies absent showing of actual, rather than potential, bias. Amos v Board of Education, 54 A.D.2d
297, 388 N.Y.S.2d 435, 1976 N.Y. App. Div. LEXIS 14031 (N.Y. App. Div. 4th Dep't 1976), aff'd, 43 N.Y.2d 706, 401 N.Y.S.2d 207, 372
N.E.2d 41, 1977 N.Y. LEXIS 2512 (N.Y. 1977).
Board of
Cooperative Educational Services properly annulled a determination rendered by
the Commissioner of Education reinstating a teacher to her position, as the
plain language of N.Y. Educ. Law § 3014 did not entitle her to a reduced
probationary period merely because she was previously tenured as a teaching
assistant, but extended said benefit to those previously tenured as teachers.
Moreover, because she was not entitled to the shortened probationary period,
she did not obtain tenure by estoppel after two years had passed, and, thus,
she was not entitled to a hearing prior to termination. Matter of Putnam N. Westchester Bd.
of Coop. Educ. Servs. v Mills, 46 A.D.3d 1062, 847 N.Y.S.2d 292, 2007 NY Slip
Op 9849, 2007 N.Y. App. Div. LEXIS 12656 (N.Y. App. Div. 3d Dep't 2007).
Arbitrator's
decision to terminate a teacher for an improper remark to a student was
vacated, under N.Y. C.P.L.R. 7511(b)(1), because the arbitrator (1) exceeded
the arbitrator's power by failing to adhere to applicable standards in N.Y.
Educ. Law § 3020-a(3)(c), requiring full and fair disclosure of the evidence,
(2) showed bias by prejudging the evidence and failing to find facts
independent of the arbitrator's predisposition, and (3) thus violated the
teacher's right to due process. Matter of Gongora v New York City
Dep't of Educ., 930 N.Y.S.2d 757, 2010 NY Slip Op 20554, 2010 N.Y. Misc. LEXIS
6667 (N.Y. Sup. Ct. 2010), aff'd in
part, modified, 98 A.D.3d 888, 951 N.Y.S.2d 137, 2012
NY Slip Op 6255, 2012 N.Y. App. Div. LEXIS 6200 (N.Y. App. Div. 1st Dep't 2012).
Arbitrator's
award suspending a tenured teacher for one year without pay was vacated under
N.Y. C.P.L.R. § 7511 and N.Y. Educ. Law § 3020-a(4) as violative of due process
because the arbitrator rendered his decision based upon credibility
determinations made solely from the record of a prior hearing without live
testimony from the witnesses. Smith v New York City Dep't of Educ.,
239 N.Y.L.J. 96 (Sup 2008).
Procedures
outlined in statute failed to meet constitutional requirement of due process in
that a tenured teacher can be deprived of his property right in employment
without any assurance that the school board's decision will be based on
evidence elicited at the hearing or that the petition will not be based on ex
parte evidence or that there will be a written decision setting forth the
board's reasoning and the factual basis of its decision. Kinsella v Board of Education, 378 F.
Supp. 54, 1974 U.S. Dist. LEXIS 12209 (W.D.N.Y. 1974).
Magistrate
judge's report and recommendation was adopted by a district court, and the
retaliation complaint filed by teachers against a city and the State of New
York and its Department of Education (State Defendants) was dismissed per the
city's motion under Fed. R. Civ. P. 12(b)(6) and a judgment of pleadings was
granted to the State Defendants under Rule 12(c). The district court agreed
with the magistrate judge that the U.S. Const. amend. I claims of the teachers
that they were retaliated against for speaking out against city school system
programs and policies designed to terminate employment of teachers performing
below acceptable standards were deficient because in each case the incidents
concerned personal grievances expressed as employees generally relating to
their duties, work schedules and/or conditions, or internal operations, rather
than any matters of public concern raised by the teachers as private citizens;
the teachers' claims against the State Defendants were barred by the doctrine
of sovereign immunity; and the teachers' claims under N.Y. Educ. Law § 3020,
alleging a denial of due process, likewise failed because that statutory scheme
was permissively modified by a collective bargaining agreement. Adams v New York State Educ. Dep't,
705 F. Supp. 2d 298, 2010 U.S. Dist. LEXIS 33794 (S.D.N.Y. 2010).
Respondent's
payment of $ 48,000 retirement incentive in lieu of commencing disciplinary
proceeding against teacher, in exchange for teacher's forfeiture of his tenured
position, his right to $ 24,000 terminal pay allowance and his right to pursue
civil suit against respondent for alleged defamatory comments about his
professional competence, constituted proper exercise of respondent's authority
to negotiate settlement and obtain release of potential claims in order to
avoid expensive, time-consuming and uncertain litigation. 2003 Op Comm Ed No.
14,957.
Mere fact
that evaluation is critical of tenured teacher's performance in one or another
area does not trigger due process requirements of CLS Educ Law § 3020-a, since
a critical evaluation is not "reprimand" and does not constitute
disciplinary action. 1993 Op Com Ed No. 13025.
9. --Waiver
A tenured
teacher may, as part of a stipulation in settlement of a disciplinary
proceeding brought against him, waive his continued right to the protections
afforded by section 3020-a of the Education Law where there were careful and
counseled negotiations between the parties and no claim of duress on the part
of the board of education, for when a waiver is freely, knowingly and openly
arrived at, without taint of coercion or duress, the sturdy public policy underpinnings
of section 3020-a are not undermined. The contention that public policy
absolutely forbids waiver of section 3020-a rights is negated by an examination
of the statute itself; moreover, such a holding conforms with a competing
public policy favoring the nonjudicial resolution of legal claims, i.e., a
means of facilitating the vindication of rights without having to endure the
travail and vicissitudes of litigation. Abramovich v Board of Education, 46
N.Y.2d 450, 414 N.Y.S.2d 109, 386 N.E.2d 1077, 1979 N.Y. LEXIS 1797 (N.Y.), reh'g denied, 46 N.Y.2d 1076, 1979 N.Y. LEXIS 3248
(N.Y. 1979), cert.
denied, 444 U.S. 845, 100 S. Ct. 89, 62 L.
Ed. 2d 58, 1979 U.S. LEXIS 2768 (U.S. 1979).
A
stipulation pursuant to which a tenured teacher waived in advance his tenure
rights under section 3020-a of the Education Law, providing for a termination
hearing, in exchange for the withdrawal of pending disciplinary charges, is not
void as against public policy. Abramovich v Board of Education, 62
A.D.2d 252, 403 N.Y.S.2d 919, 1978 N.Y. App. Div. LEXIS 10445 (N.Y. App. Div. 2d Dep't 1978), aff'd, 46 N.Y.2d 450, 414 N.Y.S.2d 109, 386
N.E.2d 1077, 1979 N.Y. LEXIS 1797 (N.Y. 1979).
Stipulation
whereby tenured teacher, in return for dismissal of charges, waived right to
notice of hearing if principal decided that he should be permanently terminated
following three months' "trial period" was not void as against public
policy. Abramovich v Board of Education, 62
A.D.2d 252, 403 N.Y.S.2d 919, 1978 N.Y. App. Div. LEXIS 10445 (N.Y. App. Div. 2d Dep't 1978), aff'd, 46 N.Y.2d 450, 414 N.Y.S.2d 109, 386
N.E.2d 1077, 1979 N.Y. LEXIS 1797 (N.Y. 1979).
Failure
of teacher charged with incompetence and insubordination to appear by herself
or counsel or subsequently explain absence at panel hearing requested by
teacher, after proper notice, constitutes withdrawal of teacher's request for
hearing and acts as waiver, whereupon hearing panel is discharged and board of
education is allowed to proceed under provisions of § 3020-a(2). Re Application
of Board of Education, 1982 Op Comr Ed #10754.
Teacher
did not waiver right to a hearing by failing to request hearing where his
counsel and union representative both advised board that he desired a hearing.
Re Erenberg, Op Comr Ed No. 11090.
Board of
education properly found that teacher waived right to hearing on charges of
sexual misconduct by failing to request hearing within statutory time period,
despite teacher's assertion that delay was due to extreme emotional pressure
caused by nature of charges and associated criminal charges. Appeal of McGarry,
Ops Comr Ed No. 12261.
Lack of
counsel in administrative proceeding was neither unfair, prejudicial nor basis
for reversal of administrative decision to dismiss tenured teacher where (1)
her lack of representation was direct result of her own decision to forgo
hearing, (2) after dismissing her counsel and being given ample time, teacher
failed to retain new attorney, and (3) she had previously represented herself
quite competently on previous occasions. 1993 Op Com Ed No. 13044.
10. Effect of contracts and agreements
Where
petitioner previously commenced a federal action seeking his reinstatement as a
teacher and a judgment declaring unconstitutional Education Law provision
relating to the procedure for disciplining tenured teachers, and where the
parties entered into a settlement agreement, that agreement, which was the
basis for dismissal of petitioner's subsequently reasserted federal action,
also barred, on res judicata principles, petitioner's instant Article 78 action
wherein he alleged that he was illegally suspended, underpaid since 1963 for
summer school work, and that the aforesaid settlement agreement was invalid. McFerran v Board of Education, 58
A.D.2d 917, 396 N.Y.S.2d 735, 1977 N.Y. App. Div. LEXIS 13113 (N.Y. App. Div. 3d Dep't 1977), aff'd, 45 N.Y.2d 729, 408 N.Y.S.2d 474, 380
N.E.2d 301, 1978 N.Y. LEXIS 2187 (N.Y. 1978).
In the
absence of any "plain and clear" prohibitions against bargaining for
payless suspensions in section 3020-a of the Education Law, or controlling
decisional law or public policy to the contrary, and since any constitutional
right to continued payment during suspension by the teacher would be waived by
the bargaining agreement, such agreements are binding, provided the contract
specifically provides for suspensions without pay pending resolution of section
3020-a charges. Board of Education v Nyquist, 62
A.D.2d 265, 404 N.Y.S.2d 710, 1978 N.Y. App. Div. LEXIS 10449 (N.Y. App. Div. 3d Dep't 1978), modified, 48 N.Y.2d 97, 421 N.Y.S.2d 853, 397
N.E.2d 365, 1979 N.Y. LEXIS 2316 (N.Y. 1979).
Provision
in collective bargaining agreement concerning placing of material in teacher's
file is completely independent of formal misconduct proceedings of CLS
Education Law § 3020-a; statutory scheme cannot be said to have been superseded
by collective bargaining agreement in absence of explicit language which
unquestionably manifests parties' intent to effect such change. Fishman v Board of Education, 114
A.D.2d 436, 494 N.Y.S.2d 350, 1985 N.Y. App. Div. LEXIS 53129 (N.Y. App. Div. 2d Dep't 1985).
Incident
upon which agreement to resolve potential disciplinary action is based may not
subsequently be made subject of formal disciplinary charges. Re Board of
Education, 1986 Op Comm Ed No. 11686.
Corrective
bargaining agreement's provisions relating to corrective action plans for
teachers who failed to meet evaluation criteria set forth in "The Model
for Teacher Evaluation" did not displace procedures under CLS Educ §
3020-a, where teacher was charged with numerous serious acts of neglect of duty
and insubordination. 1998 Op Comm Ed No. 14064.
11. --Arbitration
A teacher
charged with neglecting his duties by participating in a basketball tournament
for four days without receiving permission from the board of education and
failing to obey an order and a directive of his superiors, is not entitled to
have the matter arbitrated and a stay of arbitration is granted where the
teacher filed a grievance and demanded arbitration after service of formal
notice of the charges filed against him (Education Law, § 3020-a), and the
collective bargaining agreement which the teacher was subject to provided that
grievances, defined as disputes arising from events and conditions affecting
terms and conditions of employment and interpretation of the agreement, were to
be submitted to binding arbitration and that the term grievance would not apply
to any matter for which a method of review is prescribed by law or by any rule
or regulation of the State Commissioner of Education having the force and
effect of law, since to effectuate the intent of the parties without nullifying
either the inclusory or exclusory language, the exclusion of arbitrable
grievances for which a method of review is prescribed by law or by rule or
regulation of the commissioner is limited to those grievances for which such
review is mandatorily provided by statute, rule or regulation, and inasmuch as
the grievance for which arbitration has been demanded is identical to the
subject matter of a disciplinary charge filed against the teacher pursuant to
section 3020-a of the Education Law, a statutorily mandated procedure for the
review of such charges, the grievance falls within the ambit of both the
inclusionary and exclusionary language contained in the definition of an
arbitrable grievance and there has been a failure to demonstrate an express and
unequivocal agreement to submit the dispute to binding arbitration. South Colonie Cent. School Dist. v
South Colonie Teachers Asso., 46 N.Y.2d 521, 415 N.Y.S.2d 403, 388 N.E.2d 727,
1979 N.Y. LEXIS 1866 (N.Y. 1979).
The trial
court improperly granted a stay of arbitration of a grievance filed by a
tenured teacher, and the court's characterization of the underlying dispute as
one involving "teacher evaluation" which thereby expressly excluded
it from grievance procedure outlined in collective bargaining agreement was
erroneous, where the matter involved an investigation by school officials of
serious charges of incompetence and misconduct against the teacher which
eventually led to the filing of charges, pursuant to Educ Law § 3020-a, and a
stay of arbitration was unwarranted in that the grievance in the demand for
arbitration alleged that the school board violated specific sections of the
agreement concerning the board's support of the teacher on questions of
discipline and opportunity for him to respond to the complaint registered
against him, and violations of those sections were covered under the broad
definition of "grievance" in the agreement and were, therefore,
arbitrable. Board of Education v Cattaraugus
Teacher's Asso., 84 A.D.2d 685, 447 N.Y.S.2d 51 (4th Dept 1981).
A school
district's petition to permanently stay arbitration sought by respondents was
properly granted where respondents failed to demonstrate an express and
unequivocal agreement to submit the matter to arbitration, as the agreement
expressly excluded from its operation matters "mandated by a higher
authority requires to be resolved by some other body," and Educ Law §
3020-a, as amended in 1977, requires that disciplinary proceedings against
school teacher be resolved by a hearing panel. Little Valley Cent. School Dist. v
Poole, 99 A.D.2d 650, 472 N.Y.S.2d 226, 1984 N.Y. App. Div. LEXIS 16893 (N.Y. App. Div. 4th Dep't 1984).
Court may
interfere with or limit arbitration proceeding only when subject matter does
not fall within terms of arbitration clause or when arbitration contravenes
strong public policy; accordingly, court may not interfere where subject matter
falls squarely within terms of agreement to arbitrate and it is not against
public policy to permit arbitrator to review act of disciplining teacher
following § 3020-a hearing. Board of Education v Auburn Teachers
Asso., 115 A.D.2d 296, 496 N.Y.S.2d 132 (4th Dept 1985).
Provision
of collective bargaining agreement that "arbitrator shall have no power or
authority to make any decision which requires the commission of an act
prohibited by law" did not prohibit arbitration of teachers union
grievance charging that school district discharged tenured teacher without just
cause, even though teacher had prior hearing under CLS Educ § 3020-a and had
appealed decision to Commissioner of Education, since provision did not exclude
from its operation matters for which method of review was prescribed by law or
rule, or by rule or regulation of commissioner. In re City School Dist., 144 A.D.2d
762, 535 N.Y.S.2d 169, 1988 N.Y. App. Div. LEXIS 10931 (N.Y. App. Div. 3d Dep't 1988), app. denied, 73 N.Y.2d 707, 539 N.Y.S.2d 300, 536
N.E.2d 629, 1989 N.Y. LEXIS 236 (N.Y. 1989).
Public
policy would not prevent arbitration of dispute between teachers union and
school district regarding alleged violation of collective bargaining agreement
arising from discharge of tenured teacher without just cause, even though
teacher had prior hearing under CLS Educ § 3020-a, since issues raised in each
type of proceeding were discrete; union could not invoke Article 78 review of
teacher's dismissal, and arbitration could only be sought by union. In re City School Dist., 144 A.D.2d
762, 535 N.Y.S.2d 169, 1988 N.Y. App. Div. LEXIS 10931 (N.Y. App. Div. 3d Dep't 1988), app. denied, 73 N.Y.2d 707, 539 N.Y.S.2d 300, 536
N.E.2d 629, 1989 N.Y. LEXIS 236 (N.Y. 1989).
Teacher,
who was discharged by a city department of education for unfitness, was not
entitled to vacate an arbitration ruling under N.Y. Educ. Law § 3020-a on the
grounds of bias and misconduct because even if considered a new fact, a hearing
officer's resume indicating an association with another officer who presided
over a prior unrelated hearing was not clear and convincing evidence of bias;
the resume could not be considered on a motion to renew under N.Y. C.P.L.R.
2221 as the teacher failed to present a reasonable justification for a failure
to present it with the original motion. Zrake v New York City Dept. of Educ.,
41 A.D.3d 118, 838 N.Y.S.2d 31, 2007 NY Slip Op 4700, 2007 N.Y. App. Div. LEXIS
6715 (N.Y.
App. Div. 1st Dep't), app. dismissed, app. denied, 9 N.Y.3d 1001, 849 N.Y.S.2d 28, 879
N.E.2d 168, 2007 N.Y. LEXIS 3772 (N.Y. 2007).
An
Article 78 proceeding motion by a teacher to compel arbitration of a grievance
filed with petitioner school district, under the terms of the collective
bargaining agreement entered into by the school district and the teachers'
association, would be denied where the teacher claimed that he was dismissed
without just cause after he was found guilty on charges of conduct unbecoming a
teacher and insubordination by a three-member panel following a hearing
conducted pursuant to Educ Law § 3020-a; the decision of the hearing panel was
res judicata upon the school district unless modified or set aside by the State
Commissioner of Education or by a court in an Article 78 proceeding, and the
teacher had failed to pursue either of said avenues of appeal open to him. Poole v Little Valley Cent. School
Dist., 114 Misc. 2d 901, 452 N.Y.S.2d 829, 1982 N.Y. Misc. LEXIS 3584 (N.Y.
Sup. Ct. 1982), aff'd, 99 A.D.2d 650, 472 N.Y.S.2d 226, 1984
N.Y. App. Div. LEXIS 16893 (N.Y.
App. Div. 4th Dep't 1984).
12. Preferring or filing charges
Board of
Education could prefer charge, which was to effect that tenured guidance
counselor in high school had repeatedly falsely denied to school officials that
he had spent a night at home of former female student, in that such charge
presented issue whether such falsehoods were reflective of a lack of moral
character or of insubordination on part of counselor. Goldin v Board of Education, 45
A.D.2d 870, 357 N.Y.S.2d 867, 1974 N.Y. App. Div. LEXIS 4352 (N.Y. App. Div. 2d Dep't), modified, 35 N.Y.2d 534, 364 N.Y.S.2d 440, 324
N.E.2d 106, 1974 N.Y. LEXIS 1060 (N.Y. 1974).
Issue of
whether school district violated progressive disciplinary scheme provided for
in collective bargaining agreement by filing lateness charges under CLS Educ §
3020-a against 15 tenured teachers without conducting required number of
meetings with union representatives was arbitrable where agreement provided for
3-stage grievance process culminating in binding arbitration and further
provided that "grievance" meant "any violation . . . of this
Agreement," and there was reasonable relationship between subject of
dispute and general subject matter of agreement. Greenburgh Eleven Union Free Sch.
Dist. v Greenburgh No. 11 Fedn., Local 1532, 266 A.D.2d 213, 697 N.Y.S.2d 695,
1999 N.Y. App. Div. LEXIS 11139 (N.Y.
App. Div. 2d Dep't 1999).
Former
employee alleged that defendants' decision to bring disciplinary charges
against him was impermissibly based on race and that he was constructively
discharged from his employment; however, the employee was not constructively
discharged. The fact that N.Y. Educ. Law § 3020-a charges were brought against
the employee did not, in itself, create an intolerable work atmosphere
converting the employee's resignation into a constructive discharge and the
employee's subjective belief that his discrimination claim would not have been
considered at his hearing in no way compelled the court to read such a
restriction into § 3020-a that was clearly not present in the plain language of
the statute. Bailey v New York City Bd. of Educ.,
536 F. Supp. 2d 259, 2007 U.S. Dist. LEXIS 85546 (E.D.N.Y. 2007).
With
respect to full-year administrator, school year commenced on July 1, following
end of students' school year on June 22, and thus filing disciplinary charges
against him on August 3 was proper, because August 3 was during school year for
which he was "normally required to serve." 2008 Op Comm Ed No.
15,720.
Even
though charges need not be removed from an employee's personnel file if the
charges are withdrawn, the school district may not improperly use the files,
and the employee may have the additional remedy of inserting his comment into
the file. Re Hirsch, Op Comr Ed #9583.
A
district resident may file charges against tenured teacher or other tenured
individual in accordance with § 3020-a of Education Law. Re Arcuri, Op Comr Ed
No. 10368.
Community
school district had standing to prefer charges against teacher in its employ
based on incidents which occurred when individual was employed by another
community school district. 1994 Op Comm Ed No. 13156.
It was
error to dismiss specifications involving alleged crimes of "Endangering
the Welfare of a Child" on ground that soliciting children to engage in
various sexual acts alone cannot be considered child endangerment. 1994 Op Comm
Ed No. 13156.
Board of
education did not abuse its discretion by declining to institute disciplinary
proceedings against principal on claim that she had granted teacher extra
privileges, and thus encouraged relationship of trust between teacher and
students at time he was under sexual misconduct investigation, where principal
was directed by superintendent and his predecessor to let teacher maintain his
usual duties and responsibilities, which included activities in question, and
principal followed those directions and carefully monitored teacher's
activities. 1994 Op Comm Ed No. 13172.
8 NYCRR §
275.5, requiring all pleadings in proceedings before Commissioner of Education
to be verified, does not apply to charges preferred against tenured teacher by
school district pursuant to CLS Educ § 3020-a. 1995 Op Comm Ed No. 13507.
Board of
education is required to meet in executive session when determining existence
of probable cause for charges of misconduct under CLS Educ § 3020-a made
against tenured teacher. 1993 Op Com Ed No. 13044.
Tenured
teacher's claim of improper service of copy of school district's petition had
no merit where school district, having informed Commissioner of Education's
Office of Counsel of circumstances concerning attempted service of teacher,
received authorization and made substitute service. 1993 Op Com Ed No. 13048.
Substitute
service of school district's petition appealing hearing panel's decision
concerning tenured teacher was properly made within 30 days of date of receipt
of hearing panel's decision, and thus appeal should not be dismissed for
laches. 1993 Op Com Ed No. 13048.
13. Specification of charges
Specification
which related to act of tenured teacher in writing a letter to a local
newspaper in regard to incidents of student abuse upon teachers but which did
not charge teacher with any wrongdoing in that regard did not constitute an
indirect attempt by school board to abridge teacher's freedom of speech and,
school board was not in error in determining that proof as to specifications
would constitute proof of insubordination or conduct unbecoming a teacher. Clayton v Board of Education, 41
N.Y.2d 966, 394 N.Y.S.2d 882, 363 N.E.2d 588, 1977 N.Y. LEXIS 1953 (N.Y. 1977).
Inasmuch
as teacher charged with conduct unbecoming a teacher by reason of arrest for
alleged shoplifting incident demanded information as to what if any incidents
other than the arrest would be alleged against teacher, teacher could not
complain that other incidents of unprosecuted shoplifting were considered by
board of education which were not specified in the notice. Caravello v Board of Education, 48
A.D.2d 967, 369 N.Y.S.2d 829, 1975 N.Y. App. Div. LEXIS 10262 (N.Y. App. Div. 3d Dep't 1975).
In view
of fact that, even prior to institution of charges against tenured teacher,
department chairman and principal had notified him of specific problems with
his teaching and had consulted with him and advised him that he would be
expected to correct his teaching deficiencies, he would not be heard to say
that he was not adequately informed of criticisms being leveled at his teaching
performance. Root v Board of Education, 59 A.D.2d
328, 399 N.Y.S.2d 785, 1977 N.Y. App. Div. LEXIS 13570 (N.Y. App. Div. 4th Dep't 1977).
Members
of board of education were absolutely immune from liability for alleged
libelous statements made in statement of charges filed against high school
principal for purpose of initiating disciplinary proceeding under CLS Educ §
3020-a; however, board members were entitled only to qualified privilege, and
were required to defend against prima facie showing of any statements made with
malice, uttered outside scope of their authority but in furtherance of their
public or private duties. Sullivan v Board of Education, 131
A.D.2d 836, 517 N.Y.S.2d 197, 1987 N.Y. App. Div. LEXIS 48280 (N.Y. App. Div. 2d Dep't 1987).
Charges
of misconduct preferred against tenured elementary school teacher were
sufficiently clear to apprise her of reasons for hearing and to enable her to
prepare proper defense, and were proper charges to be brought up in CLS Educ §
3020-a hearing, where teacher was charged with (1) violating school policy by
requesting student to leave classroom on personal errand for her, and (2)
absenting herself from class in order to discuss, with student's mother, how
traffic ticket issued to teacher's husband by mother's husband could be
"eliminated."Sperling v Board of Educ. of
Poughkeepsie City School Dist., 150 A.D.2d 584, 541 N.Y.S.2d 242, 1989 N.Y.
App. Div. LEXIS 7071 (N.Y.
App. Div. 2d Dep't 1989).
Use of
inaccurate date which was misstated by one week as it related to incident of
touching of female student by physical education teacher did not mislead or
hamper defense in proceeding to terminate his employment, even though his
version of "rubdown" was at variance with student's version, where
there was no dispute that massage occurred; use of "on or about" date
involving 2-year-old occurrence was sufficient. Turco v Board of Educ., 211 A.D.2d
861, 621 N.Y.S.2d 202, 1995 N.Y. App. Div. LEXIS 41 (N.Y. App. Div. 3d Dep't 1995).
Where
teacher was charged with being absent from her job excessive number of times
and that such conduct constituted neglect of duty and incompetent service,
school district could not submit proof that teacher's absences were for invalid
reasons, as the charge was not sufficiently broad to permit proof of abuse of
sick leave, however, charges should not have been dismissed on grounds that
absences, standing alone, were insufficient to establish that teacher was
guilty of negligent of duty or incompetent and inefficient service, as
employee, whose physical condition results in absences which are so numerous as
to limit effectiveness of individual as teacher, is subject to charge of
incompetence, such that hearing should have proceeded upon narrow issues of
whether teacher was absent on dates specified and whether such absences limited
her effectiveness as teacher, justifying disciplinary action against her. Re
Community School Bd #4, Op Comm Ed No. 11749.
Teacher
may be disciplined for disrespect to his superiors, and teacher who verbally
abused his department chairman, placed himself in threatening manner with
respect to him, and expectorated at his department chairman constituted
insubordination which was likely to undermine discipline necessary for
operation of sound school system. Re Appeal of Board of Education of Uniondale
Union Free School District, 1987 Op. Comm. Ed. No. 11832.
Disciplinary
specification charging school psychologist with telling student to "move
you stupid shit" should not have been dismissed merely because date of
incident alleged was incorrect, where psychologist had been fully apprised of
specific incident for which he was being charged, he was able to prepare
appropriate defense, and testimony demonstrated that incident did in fact
occur. 1994 Op Comm Ed No. 13226.
There is
no requirement that charges brought pursuant to this section must contain
notice of the possible penalties which may be imposed. Re Goodman, Ops Comr Ed
No. 9661.
14. Limitation periods
Article
78 proceeding to review school district's determination which placed teacher on
involuntary leave of absence for medical reasons, without pay, was timely
commenced, even though it was not brought within 4 months of letter which
placed teacher on leave, where petitioner alleged that teacher was improperly
suspended without pay while charges under CLS Educ § 3020-a were still pending,
and district was under continuing duty to pay teacher's salary at time he was
removed from payroll; statute does not authorize withholding of teacher's pay
during period of suspension prior to hearing, and right to relief will not be
barred by 4-month limitation period where claim is that public official has
failed to perform continuing duty. Janke v Community School Bd. of
Community School Dist. No. 19, 186 A.D.2d 190, 587 N.Y.S.2d 733, 1992 N.Y. App.
Div. LEXIS 10658 (N.Y.
App. Div. 2d Dep't 1992).
Article
78 proceeding to review school district's determination which placed teacher on
involuntary leave of absence for medical reasons, without pay, was timely
commenced, even though it was not brought within 4 months of date when teacher
was informed that he could not return to work until district certified that he
was medically fit, where, assuming that district's continuing duty to pay
teacher's salary would end if he were found medically unfit to work,
determination as to his fitness was not final until 11 months later (as shown
by district having advised teacher that he could request independent medical
evaluation if he were dissatisfied with district's findings), and proceeding
was commenced during following month. Janke v Community School Bd. of
Community School Dist. No. 19, 186 A.D.2d 190, 587 N.Y.S.2d 733, 1992 N.Y. App.
Div. LEXIS 10658 (N.Y.
App. Div. 2d Dep't 1992).
Statute
providing that, except with respect to teachers in city school districts, no
charges against tenured teachers shall be brought more than five years after
occurrence of alleged incompetency or misconduct, except when charges of
misconduct constitute a crime, must be strictly construed as meaning that
three-year period of limitation applicable to teachers in city school districts
is three years from date alleged incident occurred except when charge constitutes
a crime when committed. Clayton v Board of Education, 49
A.D.2d 343, 375 N.Y.S.2d 169, 1975 N.Y. App. Div. LEXIS 10910 (N.Y. App. Div. 3d Dep't 1975), rev'd, 41 N.Y.2d 966, 394 N.Y.S.2d 882, 363
N.E.2d 588, 1977 N.Y. LEXIS 1953 (N.Y. 1977).
Lower
court properly dismissed a petition by a member of the Board of Education of
the City of New York to challenge an arbitrator's decision to suspend her
without pay for six months where the specification against her was not bared by
the three year statute of limitations in N.Y. Education Law 3020-a(1); it was
neither arbitrary nor capricious for the arbitrator to determine that certain
language in the specifications satisfied the element of benefit, required in
order to sufficiently charge official misconduct, which was alone sufficient to
take the charge out of the three-year statute of limitations. Tasch v Bd. of Educ., 3 A.D.3d 502,
770 N.Y.S.2d 430, 2004 N.Y. App. Div. LEXIS 258 (N.Y. App. Div. 2d Dep't 2004).
High
school teacher was not entitled to have disciplinary charges heard by a
three-member arbitration panel because her request for such a panel on October
30, 2002, was more than 10 days after she received notice of the charges and,
thus, the request was not timely under N.Y. Educ. Law § 3020-a(2)(c). Matter of Chawki v New York City Dept.
of Educ., Manhattan High Schools, Dist. 71, 39 A.D.3d 321, 833 N.Y.S.2d 472,
2007 NY Slip Op 3177, 2007 N.Y. App. Div. LEXIS 4648 (N.Y. App. Div. 1st Dep't), app. denied, 9 N.Y.3d 810, 844 N.Y.S.2d 786, 876
N.E.2d 515, 2007 N.Y. LEXIS 3071 (N.Y. 2007).
School
teacher in proceeding under CLS Educ § 3020-a failed to show actual prejudice
affecting his defense on charges of sexual contact with students, even though
such allegations were based on conduct allegedly occurring over 20 years
earlier, where he sought no discovery, he did not show that he was deprived of
any evidence that would have been available if charges had been brought
earlier, and he pointed to no material witness who had died or disappeared and
to no documentary evidence that had been discarded or lost. DeMichele v Greenburgh Cent. Sch.
Dist. No. 7, 167 F.3d 784, 1999 U.S. App. LEXIS 2344 (2d Cir. N.Y. 1999).
Disciplinary
charges preferred against teacher pursuant to Ed L § 3020-a were timely filed
with secretary of school district, where they were actually filed on day prior
to last date on which teacher was required to serve during school year,
notwithstanding that such charges bear stamp indicating a later date of
receipt. Re Appeal of David Carr, 1983 Op Comr Ed No 11200.
Charges
must be brought within 3-year period provided for by CLS Educ § 3020-a, and
charges brought within 3-year period may be considered despite contention that
it would be inequitable to bring charges concerning incidents occurring in
prior school years where respondent does not establish that he was
disadvantaged by delay in filing charges. Re Board of Education of City School
Dist. of City of N.Y., 1984 Op Comr Ed No 11353.
In
proceeding under CLS Educ § 3020-a, hearing panel erroneously dismissed 1991
specifications relating to tenured teacher's 1986 arrest for driving while
intoxicated on ground that ensuing DWAI conviction (driving while ability
impaired) did not constitute "crime" and was exempt after 3 years;
fact that teacher pleaded guilty to lesser DWAI offense was not determinative
of district's ability to bring charges against him where his conduct charged
constituted "crime when committed." 1995 Op Comm Ed No. 13290.
Even
though public meeting to authorize prosecution of appeal was held after
expiration of 30-day limitation period, school board's appeal was timely where
respondent teacher knew of board's intent to appeal, and where board had
authorized appeal at executive session within 30-day period. Re Board of
Education of the City School Dist. of the City of Rochester, 1979 Op Comr. Ed
#10123.
15. Suspension pending hearing, generally
The
refusal by a tenured teacher, during suspension from duty pending a
disciplinary hearing, to perform the duties of a staff position to which he is
assigned, constitutes insubordination warranting dismissal. Nothing in the
statutory language of Educ Law § 3020-a(2) necessarily implies that an employee
suspended from performing his duties, but being paid his salary, may not be
asked to perform other duties or functions. The concept of tenure does not
proscribe assignment to proper duties of a teacher other than classroom
teaching of a specific subject, and hence, a nonteaching assignment at district
headquarters, or in other school or district offices, which has a reasonable
relationship to the suspended teacher's competence and training, and is
consistent with the dignity of the profession, is permissible. Adlerstein v Board of Education, 64
N.Y.2d 90, 485 N.Y.S.2d 1, 474 N.E.2d 209, 1984 N.Y. LEXIS 4929 (N.Y. 1984).
It was
not arbitrary and capricious for city school district board of education to
restrict access of physical education teacher, who was on paid suspension
pending CLS Educ § 3020-a hearing, from attending school track meets both on
and off school property where (1) charges against her involved her allegedly
improper relationship with student on track team and her allegedly improper
conduct in her capacity as track coach in conspiring with other coaches to
"fix" outcome of various track events, and (2) respondent expected
that some members of track team might be called as witnesses in § 3020-a
proceeding. 2005 Op Comm Ed No. 15,167.
Tenured
teacher may not be suspended without pay pending hearing on charges. Re
DiPrima, Op Comr Ed #9523.
Tenured
teacher's appeal from disciplinary proceeding is untimely notwithstanding that
school district's failure to inform teacher of right to appeal. Re Cyr, 1988 Op
Comm Ed No 11972.
There is
statutory, regulatory, or decisional authority which authorizes board of education
to unilaterally assign teacher outside tenure area while suspended pending
resolution of disciplinary charges. 1994 Op Comm Ed No. 13141.
Regardless
of whether superintendent had reassigned or suspended tenured teacher with pay
pending preferral of charges against her for insubordination, such action
should have been reported to board of education no later than next regular
board meeting, and was deemed null and void where not acted on in timely
manner. 1998 Op Comm Ed No. 13947.
16. --Without pay
A
determination of the Commissioner of Education that the payless suspension of a
tenured teacher pending resolution of disciplinary charges against her violated
section 3020-a of the Education Law was properly reviewable in court, the
teacher's appeal having been taken under section 310 of the Education Law,
which, until amended in 1976 (L 1976, ch 857, § 1), provided that a decision of
the commissioner was final and conclusive and not subject to review in court,
since courts have not hesitated to exercise a reviewing function when, in their
opinion, the commissioner had erroneously decided issues involving statutes and
questions of law, on the theory that determinations so flawed fell within the
rubric of arbitrariness. Board of Education v Nyquist, 48
N.Y.2d 97, 421 N.Y.S.2d 853, 397 N.E.2d 365, 1979 N.Y. LEXIS 2316 (N.Y. 1979), superseded by statute as stated in Rausa v Bd. of Educ., 2012 U.S. Dist.
LEXIS 38652 (N.D.N.Y
Mar. 21, 2012).
School
district cannot withhold salary of tenured teacher during his period of
suspension pursuant to Education Law § 3020-a(2) pending hearing and
determination of disciplinary charges, since tenured teacher's compensation is
matter of such substantive right that it cannot be taken away from him except
pursuant to explicit statutory authorization; thus, compensation paid to
tenured teacher during period of suspension cannot properly be characterized as
"damages" to which common-law duty to mitigate would apply, and
district cannot withhold such compensation by reason of teacher's failure to
seek other employment. Hawley v South Orangetown Cent.
School Dist., 67 N.Y.2d 796, 501 N.Y.S.2d 318, 492 N.E.2d 391, 1986 N.Y. LEXIS
17518 (N.Y. 1986).
While the
board of education, in imposing the penalty of dismissal on tenured teacher who
was found to be incompetent, acted well within its discretionary power, and
while the board's determination had a rational basis and was not arbitrary or
capricious, the board was not authorized to suspend petitioner without pay
pending final determination of the charges. Soucy v Board of Education, 51 A.D.2d
628, 378 N.Y.S.2d 500, 1976 N.Y. App. Div. LEXIS 10967 (N.Y. App. Div. 3d Dep't 1976).
A board
of education may not lawfully suspend a permanently certified, tenured teacher
without pay pending the determination of disciplinary proceedings arising from
the teacher's failure to obtain certification in her assigned teaching area,
since absent a grant of specific authority by the Legislature a board of
education cannot legally suspend a teacher without pay while proceedings under
section 3020-a of the Education Law are pending. Bali v Board of Education, 68 A.D.2d
360, 416 N.Y.S.2d 933, 1979 N.Y. App. Div. LEXIS 10948 (N.Y. App. Div. 4th Dep't), app. dismissed, 48 N.Y.2d 630, 421 N.Y.S.2d 193, 396
N.E.2d 475, 1979 N.Y. LEXIS 2285 (N.Y. 1979).
Board of
Education acted improperly in withholding school superintendent's salary
pending hearing and determination on charges brought against him. 1996 Op Comm
Ed No. 13601.
Board of
education may not generally suspend teacher without pay pending disciplinary
proceedings pursuant to Education Law § 3020-a; teacher may be suspended from
particular assignment and given different assignment and failure to appear for
that assignment bars any claim which teacher has to continued salary. Re Appeal
of MacDonald, 1982 Op Comr Ed No. 10912.
Section
3020-a does not authorize boards of education to withhold a tenured teacher's
pay during a period of suspension, and this denial of authority may not be
circumvented by negotiations between the boards of education and their teacher
associations. Ops Educ Comm'r No. 9227.
17. -- --Constitutionality
Tenured
physical education teacher was not denied effective assistance of counsel in
proceedings for imposition of penalty for teacher's action in absenting himself
from teaching position without authorization by virtue of his not being
permitted to submit closing argument to hearing panel; record showed that
teacher had consented to arrangement under which briefs would be submitted in
lieu of hearing, even though no such briefs ultimately were submitted. Studley v Board of Education, 53
A.D.2d 974, 385 N.Y.S.2d 847, 1976 N.Y. App. Div. LEXIS 15772 (N.Y. App. Div. 3d Dep't 1976).
Procedure
followed by school board in investigating sexual charges against teacher did
not deprive him of procedural due process, where teacher was interviewed by
associate superintendent and school district's attorney before formal charges
were brought, he was suspended with pay under Educ § 3020-a pending resolution
of matter, he was afforded hearing, and he was represented by counsel at
hearing and had opportunity to call and cross-examine witnesses and offer
evidence on his own behalf during hearing. Montefusco v Nassau County, 39 F.
Supp. 2d 231, 1999 U.S. Dist. LEXIS 3019 (E.D.N.Y. 1999).
18. -- --Obstruction or delay by teacher
School
board can suspend teacher without pay pending final determination of proceeding
under § 3020-a of Education Law, upon showing that teacher's actions
constituted clear and unjustifiable attempt to obtain unwarranted delay in
final determination of proceeding. Re William G. Russell, 1982 Op Comr Ed No.
10977.
19. -- --Negotiation or agreement
Because
section 3020-a of the Education Law does not absolutely forbid the withholding
of pay from a suspended teacher pending resolution of disciplinary charges
against the teacher, a provision for a payless suspension may properly be a
term of a negotiated agreement; however, a contractual clause providing for
provisional discontinuance of pay pending an investigation and recommendation
by the superintendent to the board of education, a period defined in the
agreement as not to exceed seven days, narrowly circumscribes the time during
which pay may be interrupted, and a teacher suspended without pay pending
resolution of disciplinary charges against her is entitled to back pay from the
date of the superintendent's recommendation to the board. Board of Education v Nyquist, 48
N.Y.2d 97, 421 N.Y.S.2d 853, 397 N.E.2d 365, 1979 N.Y. LEXIS 2316 (N.Y. 1979), superseded by statute as stated in Rausa v Bd. of Educ., 2012 U.S. Dist.
LEXIS 38652 (N.D.N.Y
Mar. 21, 2012).
A
collective bargaining agreement, a provision of which gives a suspended teacher
the option of grieving his suspension or going the statutory route in
accordance with section 3020-a of the Education Law, in which latter case
"all applicable provisions of section 3020-a shall apply", can
provide for payless suspension of teachers. Board of Education v Nyquist, 48
N.Y.2d 97, 421 N.Y.S.2d 853, 397 N.E.2d 365, 1979 N.Y. LEXIS 2316 (N.Y. 1979), superseded by statute as stated in Rausa v Bd. of Educ., 2012 U.S. Dist.
LEXIS 38652 (N.D.N.Y
Mar. 21, 2012).
Appeal
from action of board of education in withholding teacher's salary for certain
days upon which she did not perform her teaching duties while defending herself
in a disciplinary proceeding pursuant to Education Law § 3020-a dismissed,
since although her absence was job related, and pay for such an absence is open
to negotiation and is within discretion of school authorities, it is not
required by provisions of section. Re Stein, 1985 Op Comr Ed No. 11544.
20. -- --Back pay
Although
N.Y. Educ. Law § 3020-a(2)(b) provides for suspension of a teacher with pay
during the pendency of a disciplinary hearing, N.Y. Educ. Law § 3020-a(4)(b)
provides that a teacher shall receive back pay for any period of suspension
only if acquitted of the charges brought under N.Y. Educ. Law § 3020-a. Elmore v Mills, 296 A.D.2d 704, 746
N.Y.S.2d 68, 2002 N.Y. App. Div. LEXIS 7382 (N.Y. App. Div. 3d Dep't 2002).
21. -- --Interim earnings
Because
the Conflicts of Interest Board of the City of New York, N.Y., was authorized
to enforce the Conflicts of Interest Law, New York City, N.Y., Charter §§
2600-2607, against a public servant who was subject to discipline under N.Y.
Educ. Law §§ 3020 and 3020-a, the lower courts improperly prohibited the Board
and the City's Office of Administrative Trials and Hearings from proceeding
with an administrative trial against a tenured assistant principal. Matter of Rosenblum v New York City
Conflicts of Interest Bd., 18 N.Y.3d 422, 941 N.Y.S.2d 543, 964 N.E.2d 1010
(2012).
Resignation
of teacher after conclusion of hearing under CLS Educ § 3020-a but before
hearing panel rendered its decision did not require termination of hearing or
nullification of decision; hearing under statute will be terminated only where
there is irrevocable resignation or voluntary settlement. Folta v Sobol, 210 A.D.2d 857, 621
N.Y.S.2d 136, 1994 N.Y. App. Div. LEXIS 13246 (N.Y. App. Div. 3d Dep't 1994).
A
newspaper publisher is not entitled to compel a school district to produce the
name of and charges against a teacher charged with misconduct in a private
disciplinary proceeding since subdivision 2 of section 3020-a of the Education
Law, which provides that a disciplinary hearing may be instituted against a
teacher only after the board of education makes a finding of probable cause in
executive session, which is closed to the public (Public Officers Law, § 97,
subd 3) and section 3020-a (subd 3, par c) of the Education Law, which provides
a teacher with the option of a private or public hearing together with 8 NYCRR
82.9, which provides that a disciplinary hearing shall be private except on the
request of the accused teacher, indicate a clear intent to assure the privacy
of the entire hearing procedure; disclosure of the teacher's name would
completely subvert the statutory intent by creating a likelihood that the
teacher's effectiveness and reputation would be severely damaged in advance of
any finding of fault; such disclosure is exempted by section 3020-a of the
Education Law by mandating privacy for the entire proceeding tantamount to an
executive session, and therefore, the school district properly denied
disclosure of the name and the charges against the teacher. Herald Co. v School Dist., 104 Misc.
2d 1041, 430 N.Y.S.2d 460, 1980 N.Y. Misc. LEXIS 2446 (N.Y. Sup. Ct. 1980).
Commissioner
of Education acted within his authority in appointing chairman/third member of
arbitration panel to hear disciplinary charges against teacher under CLS Educ §
3020-a where (1) teacher and school board each chose one member of panel, (2)
panel named 5 persons that were acceptable as chairman/third member and
forwarded list to commissioner, and (3) commissioner contacted all 5, and all
were either unwilling or unable to sit on panel; panel members failed to comply
with mandate of 8 NYCRR § 82.7 that they dispatch certified letter or telegram
to commissioner designating chairman (mere identification of acceptable
candidates did not satisfy regulation). Boden v Sobol, 153 Misc. 2d 761, 582
N.Y.S.2d 593, 1992 N.Y. Misc. LEXIS 104 (N.Y. Sup. Ct. 1992).
Teacher
claimed that she was denied her rights to due process of law (1) by defendants'
repeated initiation of disciplinary proceedings pursuant to N.Y. Educ. Law §
3020-a (2000), and (2) by the manner in which the third § 3020-a proceeding was
conducted; although the Rooker-Feldman doctrine did not apply and the teacher's
complaint was not dismissed on collateral estoppel grounds, based on the
allegations of the teacher's inappropriate conduct, defendants were clearly
justified in both ordering the additional N.Y. Educ. Law § 913 examinations and
commencing the third N.Y. Educ. Law § 3020-a proceeding. The third § 3020-a
proceeding was not a pro forma hearing and the teacher's due process rights
were not violated in that regard--a letter from the school district provided
the teacher with sufficient written notice of the charges against her, in
compliance with § 3020-a and notions of fairness inherent in the requirements
of due process and the teacher was provided with a hearing at which she was
given the opportunity to defend herself against the charges. Palkovic v Johnson, 451 F. Supp. 2d
448, 2006 U.S. Dist. LEXIS 61759 (N.D.N.Y 2006), vacated, 281 Fed. Appx. 63, 2008 U.S. App.
LEXIS 12600 (2d Cir. 2008).
Chairman
of hearing panel appointed pursuant to § 3020-a of Education Law to hear
charges against tenured teacher should have withdrawn from proceedings after
school district objected to his continued service subsequent to chairman's
disclosure that he is member of the arbitration panel of New York State United
Teachers Association. Re Board of Education of Sewanhaka Central High School
Dist., 1983 Op Comr Ed No. 11027.
Petitioner
at hearing is entitled to submit reply to affirmative defenses raised in
respondent's answer, but where no affirmative defenses are raised, no reply
brief is necessary or appropriate; reply brief may not be used to buttress
allegations in petition or belatedly make assertions that should have been in
petition. Re Board of Education of Braldalbin Central School Dist., 1984 Op
Comr Ed No 11312.
Tenured
teacher's appeal from disciplinary proceeding is untimely notwithstanding that
school district failed to inform of right to an appeal. Re Cyr, 1988 Op Comm Ed
No 11972.
Disciplinary
charge against school superintendent could be heard by board of education
itself, rather than hearing officer, where superintendent cited no provision of
his employment contract that would require board to employ hearing officer from
list maintained pursuant to CLS Educ § 3020-a. 1993 Op Comm Ed No. 13077.
Petition
requesting that hearing involving disciplinary action against school employee
be moved to new location would be dismissed for failure to join school employee
who was subject of hearing as necessary party; decision on merits would involve
rights of subject school employee. 1995 Op Comm Ed No. 13324.
No basis
existed to require respondent board of education to change location of public
hearing under CLS Educ § 3020-a to larger room to accommodate all residents who
wished to attend, where respondent maintained, inter alia, that central office
board room where hearing was to be held was largest district facility
consistently available without cost to district not located in school building,
and that it would disrupt classes to hold hearing in school building; because
press and number of members of public would be present, hearing was considered
to be public. 1995 Op Comm Ed No. 13324.
23. --Applicability
In
proceedings by two tenured teachers seeking the removal from their personnel
files of written communications from a school administrator that criticized
their performance or conduct, the teachers were not entitled to a hearing
pursuant to Educ Law § 3020-a before the communications were made part of the
permanent personnel files where the statute did not apply to such
administrative evaluations that supervisory personnel of a school district have
the right and duty to make and where, although the language of the
communications may have appeared to be in the nature of a reprimand, it fell
far short of the sort of formal reprimand contemplated by the statute. Holt v Board of Education, 52 N.Y.2d
625, 439 N.Y.S.2d 839, 422 N.E.2d 499, 1981 N.Y. LEXIS 2401 (N.Y. 1981).
A board
of education may find that a tenured teacher has abandoned her position,
thereby eliminating the requirement of a hearing pursuant to section 3020-a of
the Education Law, but the burden of proving abandonment is upon the school
district to establish by clear and convincing evidence that the teacher, by a voluntary
and deliberate act, intended to relinquish her teaching position and forfeit
her tenure rights. Accordingly, where a teacher's sworn testimony in a CPLR
article 78 proceeding provides a reasonable explanation for her departure from
the school system, the board, which had proceeded without a formal hearing and
concluded that she had abandoned her position, should have afforded her an
opportunity to be heard. Rowland v Oswego City School Dist.,
97 Misc. 2d 42, 410 N.Y.S.2d 762, 1978 N.Y. Misc. LEXIS 2747 (N.Y. Sup. Ct.
1978).
Under
Educ Law § 511, a City School District had authority to hold a hearing to
determine whether it should file an application with the New York State
Teachers' Retirement System for involuntary retirement of a tenured school
teacher employed by the District by reason of mental or physical incapacity
from performance of duties. Educ Law § 3020-a was an inappropriate vehicle for
resolving the difficulties, since it is essentially a disciplinary procedure
having no application to a request for disability retirement. Carver v Ithaca City School Dist.,
107 Misc. 2d 741, 435 N.Y.S.2d 890, 1981 N.Y. Misc. LEXIS 2092 (N.Y. Sup. Ct.
1981).
Educ Law
§ 3020-a did not require that a school district conduct a hearing pursuant to
that statute prior to issuing a letter of reprimand to a tenured administrator
in connection with his failure to insure the implementation of rules and
regulations for the operation of the interscholastic athletic program under his
supervision (a high school student who died while playing football had been
permitted to play without the required physical examination and without
parental permission), where the administrator was not charged with either
"incompetency or misconduct" within the purview of the statute, he
was not terminated or suspended, his tenure was not disturbed, and his salary
was not diminished. Monaco v Raymond, 122 Misc. 2d 370,
471 N.Y.S.2d 225, 1984 N.Y. Misc. LEXIS 2852 (N.Y. Sup. Ct. 1984).
Hearing
panel may not properly consider disciplinary matter regarding teacher when
chancellor of city board has previously issued certificate of termination to
teacher thereby revoking teacher's teaching certificate. Re Hecker, Op Comr Ed
No. 10270.
24. --Power to regulate procedure
Although
advisory opinions of the Committee on Public Access to Records must be upheld
if not irrational or unreasonable, the committee's determination that the name
of and charges against a teacher involved in a disciplinary proceeding should
be disclosed to a newspaper publisher lacks a rational basis and may not be
upheld since the Commissioner of Education, and not the committee, is
responsible for interpretation of section 3020-a of the Education Law, which
exempts disciplinary proceedings from disclosure, and further, no analysis of
section 87 (subd 2, par [g]) of the Public Officers Law was set forth in the
opinion, and therefore, as to that exemption the opinion lacks any rational
basis; the committee's opinion is neither a barrier nor a hurdle to the school
district's burden of proof; finally without the opinion itself before the
court, it is unable to determine whether the committee's opinion had a rational
basis. Herald Co. v School Dist., 104 Misc.
2d 1041, 430 N.Y.S.2d 460, 1980 N.Y. Misc. LEXIS 2446 (N.Y. Sup. Ct. 1980).
Neither
tenured teacher nor her attorney was vested by statute, regulation or
applicable collective bargaining agreement with right to participate in
selecting hearing panel chair or employer panel member in disciplinary
proceeding. 1993 Op Com Ed No. 13044.
25. --Participation in decision
All
members of hearing panel need not participate in aspect of rendering final determination.
Re Appeal of Board of Education of Avon Cent. School Dist., 1982 Op Comr Ed No.
10952.
Section
3020-a requires panel members to be in attendance at hearing sessions but does
not require that all panel members participate in decision making process;
where hearing panel member has resigned respondent should be given opportunity
to select new panel member and hearing panel should then proceed to reach
determination based upon record already before hearing panel. Re Board of
Education of North Shore Cent. School Dist., Op Comr Ed No. 10334.
26. --Dismissal of charges
Neither
the provisions of § 3020-a of Education Law or regulations in 8 NYCRR 82
authorize chairman of hearing panel to dismiss any charge with prejudice;
dismissal of charge with prejudice is decision which may be made only by full hearing
panel. Re Board of Education of City School District of City of New York, Op
Comr Ed No. 10249.
Neither
Education Law § 3020-a nor Regulations of Commissioner of Education provides
for what would be comparable to demand for bill of particulars or notice of
discovery under Civil Practice Law and Rules; thus, it is proper for chairman
of hearing panel to unilaterally deny a motion to dismiss charges, even though
he cannot grant motion. Re Appeal of Board of Education of Highland Falls-Fort
Montgomery Cent. School Dist., 1982 Op Comr Ed No. 10894.
Hearing
panel exceeded its authority by dismissing specifications with prejudice
without opportunity for full hearing on merits where petitioner objected to
dismissal; under circumstances, panel chairperson's only option was to dismiss
charges without prejudice to allow petitioner to refile specifications with
specificity required by Matter of Aronsky v Board of
Education CSD No. 22, 75 NY2d 997 (1990). 1994 Op Comm Ed No. 13156.
Chairperson
of hearing panel may not alone dismiss charges with prejudice; dismissal with
prejudice is an action which may be taken only by the full panel. Re Middle
Country Central School District, 1978 Op Comr Ed #9812.
27. --Evidence and burden of proof
Specification
which related to act of tenured teacher in writing a letter to a local
newspaper in regard to incidents of student abuse upon teachers but which did
not charge teacher with any wrongdoing in that regard constituted an indirect
attempt by school board to abridge teacher's freedom of speech and, in absence
of any facts which would reasonably infer or suggest that act of teacher was a
form of misconduct, school board was in error in determining that proof as to
specifications would constitute proof of insubordination or conduct unbecoming
a teacher. Clayton v Board of Education, 49
A.D.2d 343, 375 N.Y.S.2d 169, 1975 N.Y. App. Div. LEXIS 10910 (N.Y. App. Div. 3d Dep't 1975), rev'd, 41 N.Y.2d 966, 394 N.Y.S.2d 882, 363
N.E.2d 588, 1977 N.Y. LEXIS 1953 (N.Y. 1977).
A board
of education properly dismissed petitioner from his tenured position as a
social studies teacher pursuant to Educ Law § 3020-a, and petitioner was not
deprived of his due process right to confront adverse witnesses by the board's
failure to produce, at the hearing, the author of an interoffice memorandum
used to support its case, where petitioner had been free to subpoena this
person himself. Radoff v Board of Education, 99
A.D.2d 840, 472 N.Y.S.2d 444, 1984 N.Y. App. Div. LEXIS 17250 (N.Y. App. Div. 2d Dep't), aff'd, 64 N.Y.2d 90, 485 N.Y.S.2d 1, 474
N.E.2d 209, 1984 N.Y. LEXIS 4929 (N.Y. 1984).
It was
not improper to allow board of education to offer rebuttal testimony on
collateral matter, for purpose of impeaching teacher, even though events to
which rebuttal witnesses testified could, arguably, be considered uncharged
misconduct, since there was no indication that hearing panel considered
testimony for any purpose other than its bearing on teacher's credibility. Boyea v Board of Educ., 209 A.D.2d
852, 619 N.Y.S.2d 180, 1994 N.Y. App. Div. LEXIS 11362 (N.Y. App. Div. 3d Dep't 1994), app. denied, 85 N.Y.2d 804, 626 N.Y.S.2d 755, 650
N.E.2d 414, 1995 N.Y. LEXIS 1267 (N.Y. 1995).
The
failure of a school board to present any evidence at a hearing of the effect of
the crime to which respondent teacher pleaded guilty upon that teacher's
performance or effectiveness as a teacher did not require the hearing panel's
dismissal of the charges for the school board's failure to state a prima facie
case since petitioner's proof of the teacher's plea of guilty to and conviction
of conspiracy to bribe a public official created a rebuttable presumption that
respondent was guilty of conduct unbecoming a teacher. 1981 Op Comr Ed No
10479.
Settlement
agreement of sex discrimination proceeding under which board of education
agreed to seal letters pertaining to teacher's alleged tardiness does not
preclude use of the letters as evidence in disciplinary proceeding against
teacher. Re Board of Education, City School Dist. of Elmira, Op Comr Ed No.
11174.
School
district fails to establish prima facie case that teacher brought marijuana to
school where evidence as to nature of substance at issue consists of testimony
of 2 students who express opinion that substance observed in teachers' jacket
was in fact marijuana and teacher's refusal to deny ownership of substance and
where laboratory analysis of substance fails to establish its identity. Re
Board of Education, 1986 Op Comm Ed No. 11705.
Although
with prior knowledge and consent, the teacher's math class was video taped
while an assistant principal observed him, the use of video tapes as a means of
establishing a teacher's fitness was discouraged. The video taping can be a
useful tool in many educational contents. By its nature, however, it is capable
of depicting only limited events or periods of time. Consequently, video tapes
are rarely probative of a teacher's overall ability to function effectively in
the classroom. Appeal of City School District of the City of New York, 1990 Op
Comr Educ No 12401.
Board of
education failed to establish that hearing panel improperly rejected student's
testimony, provided through facilitated communication, which allegedly would
have established that school psychologist's sexual relationship with mother of
student affected his professional duties, where board selected procedure for
questioning student and facilitator, board submitted questions for facilitator
to ask, and hearing panel observed testimony of student over closed circuit
television and carefully reviewed literature relating to facilitated
communication. 1994 Op Comm Ed No. 13226.
28. -- --Standard of proof
No
statutory standard of proof before hearing panel is prescribed; commissioner
cannot be permitted to require standard of proof in particular case which is at
variance with similar cases decided earlier and later, without explaining why
case merits such different treatment, and departure from well-established
traditional preponderance of evidence standard is arbitrary and capricious. Martin v Ambach, 111 A.D.2d 1009, 490
N.Y.S.2d 328, 1985 N.Y. App. Div. LEXIS 50264 (N.Y. App. Div. 3d Dep't 1985), modified, 67 N.Y.2d 975, 502 N.Y.S.2d 991, 494
N.E.2d 96, 1986 N.Y. LEXIS 18593 (N.Y. 1986).
The same
degree of proof is required before an administrative tribunal as is required in
a judicial proceeding when a party is asserting the affirmative on an issue
being tried, i.e., the proponent must prove its allegations by a preponderance
of the credible evidence; accordingly, at a proceeding pursuant to section
3020-a of the Education Law to hear charges preferred against a teacher by a
school board the charges must be proved by a preponderance of the evidence,
since the hearing could result ultimately in the dismissal of a tenured teacher
from his or her job. Martin v Ambach, 104 Misc. 2d 938,
429 N.Y.S.2d 524, 1980 N.Y. Misc. LEXIS 2425 (N.Y. Sup. Ct. 1980), rev'd, 85 A.D.2d 869, 446 N.Y.S.2d 468, 1981
N.Y. App. Div. LEXIS 16701 (N.Y.
App. Div. 3d Dep't 1981).
Dismissing
an appeal by the Board of Education from a determination rendered by a hearing
panel which dismissed all specifications of a charge of conduct unbecoming a
teacher against a sixth grade teacher, rejected was the Board of Education's
argument that the panel erred when if failed to adopt the findings of a
psychologist it hired to determine the truthfulness of the complaining
students. The panel correctly declined to adopt the position proposed by the
Board of Education. The Board of Education bears the burden of proving its case
by a preponderance of evidence. The fact that the teacher failed to call an
expert and respond to the expert by the Board of Education does not reflect
adversely on the teacher because he had no duty to call an expert. Contrary to
the suggestion by the Board of Education, the panel was free to make its own
determination on the credibility of the witnesses presented, and was not
required to adopt the "expert" opinion of the Board of Education as
to the truthfulness of the complaining witnesses. In determining the weight to
give petitioner's expert, the panel noted that petitioner's expert interviewed
each of the complainants for only 30 minutes in his office, and that he did not
have the opportunity to interview the remainder of the students in the class.
The panel further noted that petitioner's expert still concluded that all the
girls he interviewed were truthful, in the face of admissions by some of the
girls during his interviews of behavioral problems, i.e., stealing,
disciplinary problem. The panel considered the testimony of the expert and
accorded it a proper weight. Appeal of Board of Education of the Greater
Johnstown City School District, 1990 Op Comr Educ No 12399.
Initial
determinations in disciplinary proceedings against teachers are to be based on
substantial evidence, not on the preponderance of credible evidence. 1980 Ops
Educ Comr No. 10179.
29. -- --Admissibility
Where
hearing officer carefully examined each child to test his competence, found him
qualified and administered oath, and testimony of children would thus have been
admissible upon trial of civil action, it was admissible in hearing for
discipline of teacher. Jerry v Board of Education, 50 A.D.2d
149, 376 N.Y.S.2d 737, 1975 N.Y. App. Div. LEXIS 11458 (N.Y. App. Div. 4th Dep't 1975), app. dismissed, 39 N.Y.2d 1057, 387 N.Y.S.2d 1034,
1976 N.Y. LEXIS 3567 (N.Y. 1976).
Determination
dismissing elementary school teacher for improperly administering corporal
punishment to her second grade students should not have been annulled on ground
that hearing panel, prior to its determination, had received record of
teacher's previous disciplinary proceeding, since questions asked about prior
discipline were objected to and not answered, hearing panel was instructed that
prior discipline could only be considered in assessing penalty, not in
determining guilt, and teacher's attorney stipulated to such restricted use of
prior discipline; further, contrary to court's ruling, teacher had ample
opportunity to make written response to use of prior discipline since hearing
was held on 4 separate dates over 3 1/2 -month period. Friedland v Ambach, 135 A.D.2d 960,
522 N.Y.S.2d 696, 1987 N.Y. App. Div. LEXIS 52862 (N.Y. App. Div. 3d Dep't 1987), app. dismissed, 71 N.Y.2d 992, 529 N.Y.S.2d 274, 524
N.E.2d 875, 1988 N.Y. LEXIS 1851 (N.Y. 1988).
Evidence
of prior finding of guilt by panel convened pursuant to Education Law § 3020-a
may be introduced solely for purpose of assessing appropriate measure of
discipline. Re Community School Board No. 28 of the City of New York, 1983 Op
Comr Ed No. 11063.
In disciplinary
proceeding charging teacher with engaging in sexual intercourse with student,
hearing panel properly prevented petitioner from introducing any evidence of
allegations that respondent teacher may have previously been involved sexually
with 2 other students at different schools where teacher was never charged with
those incidents and no reference to them was placed in his personnel file,
teacher had no opportunity to investigate or defend with respect to alleged
prior incidents, and petitioner sought to present such evidence, not to show
that teacher was previously warned against such conduct, but to show that he
had predisposition toward sexual involvement with students. 1994 Op Comm Ed No.
13245.
31. -- -- --Rules of evidence
Determination
revoking a teacher's teaching certificate on the basis of a sexual misconduct
allegation was confirmed because, inter alia, the hearing officer's
determination that the student's testimony was credible, and that the teacher's
conflicting testimony was inconsistent and controverted by the other testimony
was fully within the hearing officer's exclusive province; although the student
was the sole eyewitness to the underlying incident, no corroboration was
required for her testimony, and the investigating police officer was properly
permitted to testify regarding certain statements made by the teacher that were
ruled inadmissible at his criminal trial. The hearing officer was not required
to follow traditional rules of evidence, and the mere allegation of bias was
not enough to disturb an administrative determination.Matter of Moro v Mills, 70 A.D.3d
1269, 896 N.Y.S.2d 493, 2010 NY Slip Op 1558, 2010 N.Y. App. Div. LEXIS 1572 (N.Y. App. Div. 3d Dep't 2010).
Determination
revoking a teacher's teaching certificate on the basis of a sexual misconduct
allegation was confirmed because, inter alia, the hearing officer's
determination that the student's testimony was credible, and that the teacher's
conflicting testimony was inconsistent and controverted by the other testimony
was fully within the hearing officer's exclusive province; although the student
was the sole eyewitness to the underlying incident, no corroboration was
required for her testimony, and the investigating police officer was properly
permitted to testify regarding certain statements made by the teacher that were
ruled inadmissible at his criminal trial. The hearing officer was not required
to follow traditional rules of evidence, and the mere allegation of bias was
not enough to disturb an administrative determination.Matter of Moro v Mills, 70 A.D.3d
1269, 896 N.Y.S.2d 493, 2010 NY Slip Op 1558, 2010 N.Y. App. Div. LEXIS 1572 (N.Y. App. Div. 3d Dep't 2010).
In
disciplinary proceeding under CLS Educ § 3020-a, hearing panel was not required
to establish accuracy of facilitated communication based on standard used by
court in Matter of Luz P., 189 AD2d 274 (2nd
Dept. 1993), which
requires courts to compare responses given by child witness questioned through
facilitated communication with child's responses to court's independent
inquiries outside presence of facilitator; administrative proceedings are not
bound by same evidentiary standards as courts of law. 1994 Op Comm Ed No.
13226.
Upheld
was the refusal of the panel chairman to admit tape-recorded interviews of
pupils to prove several charges as to striking of individual named students on
certain occasions. The interviews were conducted in the principal's office
prior to the hearing, and in the absence of the teacher who was charged. On
appeal the Commissioner refused to reverse the chairman's ruling and to
consider the tapes or the truth of their contents. Compliance with the
technical rules of evidence is not required in § 3030-a hearings, unless
admission of technically inadmissible evidence will violate the fundamentals of
a fair hearing. Each party in a § 3030-a proceeding has the right to
cross-examine adverse witnesses. It is well established, moreover, that the
right of cross-examination is fundamental, and the teacher would have been
denied this right, had the tapes been admitted. Appeal of the City School
District of the City of Elmira, 1990 Op Comr Educ Educ No. 12394.
32. -- -- --Sufficient evidence or proved charge
Substantial
evidence supported board of education's determination that tenured elementary
school teacher was guilty of 2 charges of misconduct where (1) she requested
one of her students to leave classroom on personal errand for her, in violation
of school policy, in order to call student's mother to arrange meeting between
mother and teacher, and (2) while absent from class during meeting, teacher
discussed with mother how traffic ticket issued to teacher's husband by
mother's husband could be "eliminated." Sperling v Board of Educ. of
Poughkeepsie City School Dist., 150 A.D.2d 584, 541 N.Y.S.2d 242, 1989 N.Y.
App. Div. LEXIS 7071 (N.Y.
App. Div. 2d Dep't 1989).
In action
under CLS Educ L § 3020-a against tenured teacher who deliberately sabotaged
asbestos air sampling test by artificially introducing particles of asbestos
into air sampling machine, teacher's due process rights were not abrogated by
fact that actual particles were not offered in evidence, since reports
identifying particles as asbestos were made in ordinary course of business by
independent testing agency, and where teacher's counsel both cross-examined
agency employees and called expert witness to challenge conclusions contained
in reports; proper chain of custody of pertinent air sampling filter was
established by testimony of 2 agency employees, and by other credible evidence
that particles in reports had not been tampered with. Re Appeal of Board of
Education of Baldwin Union Free School Dist., 1985 Op Comr Ed No. 11433.
School
district superintendent was guilty of neglect of duty where she delayed for
almost year before taking proper action to terminate employment of unsatisfactory
probationary employee, during which period teacher in question was allowed to
linger at district offices without meaningful role while on district's payroll.
1994 Op Comm Ed No. 13167.
Providing
deceptive and misleading information goes beyond neglect of duty and is
sufficiently inappropriate to constitute conduct unbecoming guidance counselor.
1996 Op Comm Ed No. 13620.
Tenured
teacher, who was also acting union chapter chairperson, was properly found
guilty of insubordination and other misconduct where, despite being informed by
principal that paychecks of certain teacher were being withheld until he
complied with mandatory procedures, petitioner disregarded procedures, grabbed
all checks on table in principal's office, delivered checks issued to other
teacher, and later returned remaining checks to principal; panel's decision
included discussion of conflicting testimony and was based largely on its
assessment of witness credibility. 1994 Op Comm Ed No. 13190.
Charges
against tenured teacher must be both substantial and substantiated in order to
justify imposition of penalty of dismissal; teacher dismissed after finding
that he knowingly exhibited film of pornographic nature to students. Re Board
of Education of City School District of City of New York, Op Comer Ed No.
10194.
Tenured
teacher was not entitled to reversal of hearing panel's determination finding
him guilty of conduct unbecoming teacher where he pleaded guilty to class B
felony of third degree sale of controlled substance, certificate of disposition
was duly executed by Supreme Court Clerk, and there was no question that he was
guilty of underlying charge; such conviction clearly constitutes conduct
unbecoming teacher and conduct prejudicial to good order, efficiency and
discipline of service. 1993 Op Com Ed No. 13021.
33. -- -- --Insufficient evidence or unproved charge
Evidence
that teacher failed to prepare daily or weekly lesson plans when it was general
duty of all teachers to prepare plans, though minimal proof of some neglect of
duty, did not in any way constitute proof of such misconduct as would warrant
dismissal of teacher. Clayton v Board of Education, 49
A.D.2d 343, 375 N.Y.S.2d 169, 1975 N.Y. App. Div. LEXIS 10910 (N.Y. App. Div. 3d Dep't 1975), rev'd, 41 N.Y.2d 966, 394 N.Y.S.2d 882, 363
N.E.2d 588, 1977 N.Y. LEXIS 1953 (N.Y. 1977).
Hearing
panel properly dismissed charges of insubordination, conduct unbecoming
teacher, inefficiency and incompetency against teacher based on teacher's
alleged reneging on oral agreement to teach high school physics class where
school district failed to sustain burden that teacher's actions forced district
to use inappropriate replacement to teach physics, and that his actions caused
damage to other courses within science program. Re Board of Education, 1982 Op
Comr Ed #10853.
Teacher
was properly found not guilty of charge that he failed to report to principal's
office when requested to do so where circumstances related to his medical
condition prevented him from being notified that he was to report to principal.
1994 Op Comm Ed No. 13187.
Teacher
was properly found not guilty of charge that he made obscene gesture toward
several staff members by using his middle finger to rub his nose or neck, where
hearing panel noted that he may have merely been clumsily rubbing his nose or
neck and may not have intended to convey obscene gesture, and he ceased making
this gesture after being made aware that others were offended by it. 1994 Op
Comm Ed No. 13187.
Teacher
was properly found not guilty of charge that he allowed students to
"trash" classroom, where there was no indication as to how classroom
in question became unsettled. 1994 Op Comm Ed No. 13187.
Specification
charging school psychologist with engaging in sexual relationship with
student's mother from November 1989 until January 1991 was unproven, as
written, where credible testimony established that length of sexual
relationship was only from April or May 1990 until January 1991. 1994 Op Comm
Ed No. 13226.
Hearing
panel did not err when it dismissed charge against teacher who allegedly
grabbed student's arm, flung him into wall in hallway near her classroom, then
grabbed him by both arms and pushed him against wall, where teacher admitted
that she took hold of student's arm, escorted him out of classroom, put him
against wall and held both his arms, but she did not admit to specific acts
described in charge, and hearing panel adequately explained why it deemed her
testimony more reliable than student's hearsay testimony or testimony of
teaching assistant who witnessed incident. 1995 Op Comm Ed No. 13287.
Hearing
panel correctly found teacher not guilty of charge that she improperly gave
student ride in her car, where student lived next door to teacher, was playmate
of teacher's daughter, and had ridden with teacher in her car on prior
occasions; while teacher's action was improper in that student's mother did not
know that teacher was driving her son home that day, it did not rise to level
of professional misconduct. 1995 Op Comm Ed No. 13303.
Teacher
did not act improperly where, while taking her 4th grade class to playground
for recess, she stopped at main office and made short phone call which was
work-related and involved deadline to be met that morning, inasmuch as her
schedule did not afford her any free time until 2:00 p.m. 1995 Op Comm Ed No.
13303.
Guidance
counselor's failure to meet with teachers in timely manner as to transitioning
of students was insufficient to determine that he was unable to perform his
duties as guidance counselor. 1996 Op Comm Ed No. 13620.
Guidance
counselor was not guilty of insubordination for failing to keep accurate and
detailed records of his activities in accordance with detailed action plan
where there was no showing that his actions were in willful or deliberate
defiance of his supervisors' directives. 1996 Op Comm Ed No. 13620.
Hearing
panel did not err when it found teacher not guilty of charge that she
humiliated student and made inappropriate remarks to student's parents, where
testimony presented by board of education was contradicted by testimony
presented by teacher's witnesses. 1995 Op Comm Ed No. 13303.
34. --Payment of panel
Teacher
was denied due process in hearing she requested pursuant to CLS Educ § 3020-a,
in response to disciplinary charges preferred against her by board of
education, where she and board each chose one hearing panel member, 2 panel
members chose third member to serve as chairperson, chairperson received fee of
$ 200 under auspices of arbitration association while other 2 members were paid
$ 50 fee from fund established by Commissioner of Education, and unbeknownst to
teacher or other 2 hearing panel members, member chosen by board sought and
obtained additional $ 100 fee from board; issue raised was whether payment
conveyed appearance of impropriety, not whether there was actual bias. Syquia v Board of Educ. of
Harpursville Cent. School Dist., 180 A.D.2d 883, 579 N.Y.S.2d 487, 1992 N.Y.
App. Div. LEXIS 1498 (N.Y.
App. Div. 3d Dep't), app. dismissed, 80 N.Y.2d 825, 587 N.Y.S.2d 896, 600
N.E.2d 623, 1992 N.Y. LEXIS 1761 (N.Y. 1992), aff'd, 80 N.Y.2d 531, 591 N.Y.S.2d 996, 606
N.E.2d 1387, 1992 N.Y. LEXIS 4230 (N.Y. 1992).
In
Article 78 proceeding challenging board of education's termination of
petitioner from tenured teaching position, fact that individual selected by
board to sit on 3-member disciplinary hearing panel surreptitiously requested
payment of per diem compensation in addition to that authorized by CLS Educ §
3020-a, and action of board in paying same, although not divulged on record,
constituted bias per se undermining impartiality of hearing panel and rendered
determination arbitrary and capricious and subject to vacatur, since language
of § 3020-a makes it clear that 3 panel members are intended to be impartial
arbitrators. In re Syquia v Board of Educ. of
Harpursville Cent. School Dist., 149 Misc. 2d 463, 568 N.Y.S.2d 263, 1991 N.Y.
Misc. LEXIS 92 (N.Y. Sup. Ct. 1991), aff'd, 180 A.D.2d 883, 579 N.Y.S.2d 487,
1992 N.Y. App. Div. LEXIS 1498 (N.Y.
App. Div. 3d Dep't 1992).
35. Post-hearing procedures, generally; report of findings
Supreme
Court properly dismissed proceeding to review penalty imposed by hearing panel
pursuant to CLS Educ § 3020-a for school district's improper service on
respondent (who was employed by district) by leavingpapers with its own chief
executive officer who could not appropriately act as recipient of service given
adverse interests between officer and respondent, even though officer was not
named as party; furthermore, at all pertinent times respondent was available
for personal service on daily basis as employee in district's own office.Community School Dist. v Goodman, 127
A.D.2d 837, 511 N.Y.S.2d 945, 1987 N.Y. App. Div. LEXIS 53415 (N.Y. App. Div. 2d Dep't), app. denied, 69 N.Y.2d 612, 517 N.Y.S.2d 1027, 511
N.E.2d 86, 1987 N.Y. LEXIS 16899 (N.Y. 1987).
Decision
finding tenured teacher guilty of immoral conduct and conduct unbecoming
teacher would be annulled where decision was devoid of reasoning and failed to
state even one fact on which it was based; thus, until such time as proper
determination was issued, teacher would remain suspended with pay. 1994 Op Comm
Ed No. 13137.
Determination
by board of education to terminate employment of superintendent would not be
overturned for failure to make findings of fact where board's decision
indicated whether charge was sustained or not, reasons for each determination,
and evidence relied on. 1996 Op Comm Ed No. 13681.
Board of
education's determination purporting to terminate school superintendent's
employment contract would be annulled and remanded to board for proper
determination where board failed to supply decision stating reason for
determination and indicating evidence relied on. 1994 Op Comm Ed No. 13129.
36. Penalties and punishment, generally
It did
not violate equal protection for board of education (1) to deny retirement
incentive to certain teachers because insufficient number of them had submitted
their resignations as required under agreement, but then (2) subsequently to
agree to compensate one teacher in exchange for her immediate resignation in
satisfaction of disciplinary charges, since need to remove incompetent teacher
from school system provided rational basis for difference in treatment. Cooke v Board of Education, 140
A.D.2d 439, 528 N.Y.S.2d 140, 1988 N.Y. App. Div. LEXIS 5050 (N.Y. App. Div. 2d Dep't 1988).
In an
Article 78 proceeding, the board of education would be held to have wrongfully
withheld salary and benefits from petitioner, a tenured, nonsuspended teacher,
for time spent attending a hearing requested by petitioner to review charges
brought against him relating to his status as a tenured district employee,
where the collective bargaining agreement which covered petitioner contained no
explict authorization for withholding a teacher's salary or charging personal
leave under such circumstances. Faville v Board of Education, 116
Misc. 2d 70, 455 N.Y.S.2d 81, 1982 N.Y. Misc. LEXIS 3832 (N.Y. Sup. Ct. 1982).
Whether
conduct of teacher in touching and tickling student was intended to be warm and
affectionate rather than lascivious, such physical contact was per se conduct
unbecoming a teacher; but facts did not warrant dismissal or suspension where
teacher had 26 years of experience, and where there was no showing that if
allowed to continue at school he would not continue to be highly competent in
his job. Re Board of Education of East Meadow Union Free School District, 1979
Op Comr Ed #10100.
Hearing
panel may not discipline teacher in connection with alleged misconduct where
panel dismisses specifications to charges against him. Re Appeal of Board of
Education of City School District of City of New York, 1982 Op Comr Ed No.
10877.
Education
Law § 3020-a does not authorize hearing panel to require school board to later
expunge reprimand, or to set aside any other penalty that it has imposed
against teacher. Re Appeal of Board of Education of Hyde Park Cent. School
Dist., 1982 Op Comr Ed No. 10933.
Alcoholism
may be considered a valid mitigating factor in assessing the penalty to be
imposed in a proceeding under Education Law § 3020-a only where it is shown
that the manifestations of the disease are the primary cause of the behavior
supporting the charges and that there is no other significant contributing
factor responsible for the conduct. Re Board of Education, Ramapo Central
School District, Op Comr Ed No. 11142.
Board of
education may implement penalty imposed by hearing panel while pursuing
administrative appeal in which more severe penalty is sought. Re Romaszko, 1986
Op Comm Ed No. 11713.
It was
appropriate to enter into settlement agreement whereby tenured teacher agreed
to pay $ 750 fine and attend "sensitivity training" for having made
inappropriate remarks to students. 1994 Op Comm Ed No. 13142.
Tenured
teacher's one-semester suspension, appealed by school district, would not be
annulled and changed to termination where original hearing panel concluded that
teacher's record was barren of any evidence to support finding that his
misconduct impaired his ability to function as teacher. 1993 Op Com Ed No.
13048.
37. --Penalties permitted
A hearing
panel has no authority to direct a board of education to employ a classroom
teacher in a non-teaching capacity, as the penalty to be imposed under this
section is limited to a reprimand, fine, suspension for a fixed time without
pay or dismissal, and, having found the teacher to be unfit for classroom duty
and unlikely ever to improve, the panel should have ordered immediate
dismissal. Re Board of Education of the City School District of the City of New
York, Op Comr Ed No. 9673.
Hearing
panel which finds that teacher who is unlicensed to teach special education
classes used physical force to control children in such classes may suspend
teacher but has no authority to direct school district to reassign teacher to
nonhandicapped classes upon his return to duty regardless of fact that panel
characterizes this penalty as "recommendation". Re Weinreich, 1981 Op
Comr Ed #10470.
A hearing
panel is limited in its selection of penalties to those penalties specified in
Education Law § 3020-a(4), i.e., a reprimand, a fine, a suspension for a fixed
time without pay or dismissal; having determined a penalty of suspension
without pay for one semester, panel was not authorized to alter the
consequences of that penalty by directing respondent's salary be withheld for
only 5 months. Re Dascoli, 1986 Op Comm Ed No. 11601.
In
imposing appropriate penalty under CLS Educ § 3020-a, hearing panel is limited
to one of penalties set forth in that section, being reprimand, fine,
suspension for fixed time without pay or dismissal, and recommendation that
teacher attend appropriate counseling program cannot be mandatory, nor is it
proper. Re Appeal of Board of Education of Uniondale Union Free School Dist.,
1987 Op. Comm. Ed. No. 11832.
Hearing
panel's recommendation that tenured teacher undergo counseling as part of
disciplinary sanction was improper and would be annulled; hearing panel is
limited to one of penalties under CLS Educ § 3020-a and may not recommend
mandatory counseling. 1994 Op Comm Ed No. 13137.
38. --What constitutes penalty or punishment
Order by
Chancellor of Board of Education prohibiting teacher who had been found guilty
of misconduct from being employed in any position within Board's district
office was not punishment within meaning of CLS Educ L § 3020-a, in that
legislature could hardly be supposed to permit teacher found guilty of
misconduct to advance within educational system as if finding did not exist. Lavelle v Quinones, 679 F. Supp. 253,
1988 U.S. Dist. LEXIS 1523 (E.D.N.Y. 1988).
Withholding
of teacher's pay for unexecused absence is not "penalty" within terms
of Education Law § 3020-a(4) because, unlike fine, it is not penal in nature
and does not serve as deterrent to improper conduct, rather it is merely
recognition of fact that school district is not obligated to pay teacher for
period of unauthorized absence. Re Board of Education of East Williston Union
Free School Dist., 1983 Op Comr Ed No. 11062.
Petitioner,
a tenured music teacher, was found guilty in a previous hearing of charges
relating to class preparation, and the panel recommended a six month suspension
without pay, which was appealed to the Commissioner of Education, and appeal
dismissed, after a finding that the record supported the hearing panel
determination and recommendation. Upon completion of the disciplinary
suspension, petitioner returned to the school district in February 1990 and was
assigned by the school district to six periods of "hall duty" a day.
This assignment required petitioner to remain in the hallway to supervise
students for six periods of the school day and precluded petitioner from
teaching classes in any capacity during the day. Although, by affidavit,
counsel for the school district stated that the petitioner had been given an
assignment during the 1990-91 school year to teach music and to provide
supervisory duties for the balance of the school day, even if the appeal had
not been rendered moot by virtue of the new assignment given to petitioner, the
appeal would be dismissed on the merits. Petitioner's contention that an
assignment to supervisory hall duty is outside of both the certification and
tenure area because it does not involve direct classroom duties as a music
teacher is rejected. The supervision of students while they are in a lunchroom,
study hall, or in a hallway, is part of the teaching duties of all teachers and
an assignment exclusively to such supervisory duties is not a violation of the
teacher's tenure or certification rights. Furthermore, since the assignment to
hall duty is not defined as a penalty or punishment pursuant to the provisions
of § 3020-a of the Education Law, petitioner's arguments that the assignment
constitutes a double penalty or it constitutes a penalty imposed without the
procedure required by the provisions of § 3020-a, are without merit. Appeal of
Bahret, 1990 Op Comr Educ No 12419.
39. --Reprimand
An agency
order authorizing a one year suspension of a tenured teacher after a hearing
panel found her guilty of misconduct based upon her excessive and repeated
absences and authorizing the reassignment of her duties by the panel, did not
improperly inflict a dual penalty upon her in contravention of Education Law §
3020-a, where the teacher's reassignment to substitute duty, although taken in
response to her frequent absences, was within the discretionary power of the
board to vary teaching assignments and was not a penalty, being neither a
reprimand, suspension, dismissal or a fine; a "reprimand" as used in
this statute was not intended to encompass an administrative reassignment but
rather contemplate the formal proof issued by the board which becomes part of
the teacher's permanent record. Board of Education v Ambach, 84
A.D.2d 55, 446 N.Y.S.2d 444, 1981 N.Y. App. Div. LEXIS 15826 (N.Y. App. Div. 3d Dep't 1981), rev'd, 56 N.Y.2d 792, 452 N.Y.S.2d 397, 437
N.E.2d 1154, 1982 N.Y. LEXIS 3439 (N.Y. 1982).
Appeal of
school board from hearing panel's decision imposing sanction of reprimand upon
tenured French teacher based upon charges of absenteeism and lateness is dismissed
since penalty of severe reprimand is not disproportionately lenient based upon
record which suggests that much of teacher's absenteeism was due to death of
her mother and various personal illnesses. Re Community School Board No. 2 of
the City School Dist. of the City of New York, 1983 Op Comr Ed No. 11064.
Factors
used in determining whether particular letter is characterized as admonition or
is formal disciplinary reprimand include whether letter is from immediate
supervisor or from board of education, whether letter is directed towards
improvement of performance or is formal reprimand for conduct, whether letter
is in nature of performance evaluation or castigation for misconduct, and
severity of misconduct and of admonition or reprimand; also relevant but not
determinative are factors such as whether letter uses word
"reprimand", and whether or not it uses accusatory language of formal
charges in describing conduct; language of letter and circumstances in which it
was issued must be considered as whole. Re Richardson, 1984 Op Comr Ed No
11333.
Teacher
who performs incompetently for period of time but who follows administrative
directives to alter teaching style and consequently eliminates deficiencies is
properly reprimanded but is not subject to dismissal for unfitness to teach. Re
Board of Education, 1986 Op Comm Ed No. 11670.
40. --Fine
Where
record established that tenured physical education teacher had absented himself
from teaching position on three occasions without authorization or permission,
board did not abuse its discretion in imposing fine equal to two months' salary
and in accomplishing such fine by deducting such amount from paycheck received
at end of school year. Studley v Board of Education, 53
A.D.2d 974, 385 N.Y.S.2d 847, 1976 N.Y. App. Div. LEXIS 15772 (N.Y. App. Div. 3d Dep't 1976).
In tenure
proceedings involving a public school employee, in which the school district
sought to have deducted from the employee's salary for the period involved an
additional sum representing salary deduction for the delay in the tenure
hearing attributable to petitioner, the proper sum to be deducted as a penalty
of three months' salary in accordance with a determination of a hearing panel
convened pursuant to Educ Law § 3020-a would be $ 9,274 where the
uncontroverted evidence adduced at the hearing before Special Term established
that petitioner's salary for the period September 1, 1981 through June 30, 1982
was $ 30,914. Tyson v Harrison Cent. School Dist.,
102 A.D.2d 894, 477 N.Y.S.2d 311, 1984 N.Y. App. Div. LEXIS 19126 (N.Y. App. Div. 2d Dep't 1984).
Hearing
panel properly imposed fine of 1 month's salary against tenured teacher found
by panel to be guilty of charge of conduct unbecoming teacher by his misuse of
students to further his personal objectives and his refusal of parent's request
that he return to parent certain papers written by student. Re Appeal of Board
of Education of Dundee Cent. School Dist., 1984 Op Comr Ed No. 11377.
Fine of $
1,000 will be imposed upon tenured teacher found guilty of single act of use of
vulgar language to students. Re Appeal of Board Of Education Of Spencerport
Cent. School Dist., 1985 Op Comr Ed No. 11413.
Where
board of education for school district found probable cause for charges of
incompetence, inefficiency, incapacity to teach, common neglect of duty and
insubordination against tenured teacher, which charges were sustained by
commissioner, hearing panel erred in imposing a fine equal to 24 percent of
teacher's gross annual salary; appropriate penalty under circumstances
warranted dismissal. Re Carr, 1985 Op Comr Ed No. 11489.
Where
hearing panel found tenured teacher guilty of several charges constituting
neglect of duty, conduct unbecoming a teacher, conduct prejudicial to the good
order, efficiency, and discipline of the service, and conduct constituting a
violation of § 10.4 of board's bylaws, record did not indicate that teacher was
incompetent or that there existed sufficient misconduct as to warrant dismissal
from his position, and accordingly, penalty was changed to a fine in amount of
$ 5,000 to be deducted from teacher's salary over period of 1985-86 school
year. Re Gordon, 1985 Op Comr Ed No. 11512.
Since
junior high school principal's conduct was extremely inappropriate when he
refused to pay $ 6,000 loan back to teacher, principal's penalty was increased
from fine of $ 4,500 to 2 months of suspension without pay. Re Board of
Education of Community School Dist. No. 32 of City School Dist. of City of New
York, 1988 Op Comm Ed No 11959.
Fine of $
4,500 was appropriate penalty for school district superintendent's failure to
act in timely manner in disciplinary matter, thereby costing district
substantial money at time when district lacked sufficient staff. 1994 Op Comm
Ed No. 13167.
Fine of $
7,500 was not excessive where teacher was found guilty of misconduct arising
from charge that he grabbed student by collar, causing student to choke and
cough and leaving red mark on student's neck, inasmuch as teacher had been
questioned and warned in past regarding physical contact with students;
physical force, as means of student control, is not acceptable and will not be
tolerated. 1994 Op Comm Ed No. 13196.
Fine of
one month's salary is appropriate penalty for tenured assistant principal found
guilty of insubordination, neglect of duty, incompetent and inefficient
service, and conduct unbecoming her position, for evidencing gross disrespect
toward her supervisor, setting 2 small fires in her office to burn checks, and
admitting 2 suspended students into the school prior to commencement of the
school day. Appeal of Community School Board No. 32, Ops Comr Ed No. 12255.
41. --Suspension, generally
It was
not improper for board of education to suspend teacher without pay while at
same time appealing hearing panel's determination which suspended teacher for 2
years without pay for neglect, insubordination and conduct unbecoming teacher,
since CLS Educ § 3020-a mandates that board of education impose hearing panel's
recommended penalty within 30 days of receipt of report and authorizes board to
appeal determination; further, teacher had no cause to complain of his
suspension pending appeal as he did not appeal from hearing panel's findings. Roy v Board of Education, 132 A.D.2d
971, 518 N.Y.S.2d 499, 1987 N.Y. App. Div. LEXIS 49437 (N.Y. App. Div. 4th Dep't 1987).
Teacher
found guilty of 8 disciplinary charges stemming from teacher entering locked
office of business education supervisor during nonschool hours and without
authorization and damaging several computer discs, is suspended for 3 semesters
without pay. 1988 Op Comr Ed No. 12103.
Penalty
which involved suspending teacher for 6 months and then paying him for 6 months
while suspension continued was not authorized by CLS Educ § 3020-a; in
addition, penalty possibly constituted illegal gift of public funds under CLS
NY Const Art VIII § 1. 1994 Op Comm Ed No. 13201.
Policy
and precedent supported respondent's determination not to commence 2-year
period of suspension without pay (imposed as penalty for teacher's repeated
alcohol-related misconduct) until teacher was released from prison. 1998 Op
Comm Ed No. 14071.
School
district's request for either nullification of its hearing panel determination
or remand in teacher disciplinary matter was without merit where panel's
penalty determination of 6-month suspension without pay for tenured teacher's
misconduct was not disproportionate to offense and was sufficient to impress on
teacher seriousness of his misconduct. 1993 Op Com Ed No. 13048.
42. -- --Suspension appropriate
The
decision of the Commissioner of education finding a teacher guilty of
insubordination based upon her refusal to complete a psychological examination
ordered by the Board of Education was amply supported by evidence in the
record, and the suspension of the teacher without pay until such time as she
completed the examination was a proper penalty. McNamara v Commissioner of Education,
New York State Education Dep't, 80 A.D.2d 660, 436 N.Y.S.2d 406, 1981 N.Y. App.
Div. LEXIS 10364 (N.Y.
App. Div. 3d Dep't 1981), app. dismissed, 64 N.Y.2d 1110, 490 N.Y.S.2d 186, 479
N.E.2d 822, 1985 N.Y. LEXIS 15726 (N.Y. 1985).
Commissioner
of Education did not act arbitrarily or capriciously in increasing penalty
imposed on teacher from 3-month suspension without pay to one-year suspension
without pay, while refusing to increase penalty to dismissal from employment;
although misconduct, which consisted of making remarks to his students on day
before each of 2 statewide pupil evaluation tests, was highly inappropriate,
suspension for one year without pay was not disproportionately lenient. Board of Education v Ambach, 142
A.D.2d 869, 530 N.Y.S.2d 902, 1988 N.Y. App. Div. LEXIS 7945 (N.Y. App. Div. 3d Dep't 1988).
In
proceeding under CLS CPLR Art 75 to modify determination of hearing officer,
made under CLS Educ § 3020-a, suspending school district employee for 2 years
without pay, Supreme Court properly confirmed hearing officer's determination
where employee did not show basis for vacating it under CLS CPLR § 7511, and
hearing officer's determination had rational basis. Bd. of Educ. v Brandman, 286 A.D.2d
735, 730 N.Y.S.2d 450, 2001 N.Y. App. Div. LEXIS 8542 (N.Y. App. Div. 2d Dep't 2001).
Suspension
without pay for a period of one year is appropriate punishment against teacher
found guilty of purchasing tarantula and placing it upon desk of English
department chairman. Re Board of Education of Locust Valley Cent. School Dist.,
1982 Op Comr Ed #10842.
Penalty
of suspension without pay for 2 years imposed upon teacher who violated school
district's policy regarding employment while on sick leave is proper and more
severe penalty is not warranted in view of facts in record which indicates that
while teacher was on medical leave, salary payments by school district were
always late, irregular and often in amounts lower than his regular salary;
teacher's need to seek outside employment is understandable but does not waive
his obligation to seek approval of such employment and fact that several agents
of school district knew of teacher's outside employment and failed to advise
him of limitations on such employment provides basis for mitigation of penalty,
but does not justify exculpation. Re Community School Board No. 28 of the City
of New York, 1983 Op Comr Ed No. 11063.
Suspension
without pay for period of 1 year is appropriate penalty to be imposed under CLS
Educ L § 3020-a against tenured teacher found guilty of deliberately sabotaging
air sampling test taken by independent testing agency for purpose of detecting
presence of asbestos in air at school. Re Appeal of Board of Education of
Baldwin Union Free School Dist., 1985 Op Comr Ed No. 11433.
Determination
of hearing panel which found teacher guilty of failure to maintain
certification and recommendation of penalty of a suspension without pay for the
1984-85 school year affirmed, but record did not indicate laxity on teacher's
part in attempting to complete the requirements for certification, where panel
majority observed that teacher would have obtained her master's degree before
her provisional certification expired, but for an unforeseen problem with one
graduate course, and that she had in fact completed that course prior to the
hearing date and had also made efforts to complete the National Teachers'
Examination. Re Robinson, 1985 Op Comr Ed No. 11524.
It was
neither too lenient nor excessive to impose 4-year suspension on finding
assistant principal guilty of immoral conduct, conduct unbecoming teacher,
neglect of duty, and insubordination for being arrested for soliciting
prostitute while on school-related errand. 1994 Op Comm Ed No. 13159.
Where
tenured physical education teacher was found guilty of unbecoming conduct,
insubordination, and incompetency and inefficiency, 6-month suspension without
pay was appropriate penalty where his 26-year record did not indicate any
previous disciplinary proceedings against him. 1994 Op Comm Ed No. 13201.
Hearing
panel's recommendation to suspend tenured laboratory specialist without pay for
one semester was adequate punishment for various acts of misconduct charged,
and would be upheld by Commissioner of Education, where panel found that
specialist was capable of performing his job and that recommended penalty was
severe enough to impress on him seriousness of his actions, record reflected
that specialist had not been charged with misconduct in past, and penalty put
specialist on firm notice that failure to correct his conduct would not be
tolerated; commissioner would deny request for more severe penalty by board of
education on basis of specialist's alleged continuing insubordination where
specialist had not been charged with nor found guilty of insubordination. 1995
Op Comm Ed No. 13455.
43. -- -- --Versus dismissal or termination
Dismissal
of school psychologist was not warranted where essence of his misconduct (that
he made inappropriate comments to colleagues on one occasion and made
inappropriate comment to student) did not impugn his ability to carry out his
professional duties; 2 months suspension without pay was appropriate. 1994 Op
Comm Ed No. 13226.
Suspension
from March 28, 1994 to beginning of 1995-1996 school year, rather than
dismissal, was appropriate penalty where tenured teacher was found guilty of
incompetence based on her excessive absences which had detrimental impact on
students, where there was no indication that teacher was guilty of malingering,
and record indicated that she had tried (to some extent) to reduce number of
her absences and assist some substitute teachers hired to replace her. 1994 Op
Comm Ed No. 13278.
Tenured
teacher's conduct involving his operation of motor vehicle while intoxicated,
and his subsequent DWI and DWAI (driving while ability impaired) convictions,
raised serious questions as to his capacity to act as role model for students
and warranted 2-year suspension without pay to impress him with serious nature
of his misconduct and his need to address his alcohol-related problem; however,
dismissal was not warranted where teacher acknowledged his problem and
attempted to address it by enrolling in rehabilitation program, and his
classroom performance was otherwise satisfactory. 1995 Op Comm Ed No. 13290.
Two
years' suspension without pay would be more appropriate than termination, and
would be sufficient to impress on tenured teacher seriousness of his substance
abuse and conviction of third degree sale of controlled substance (class B
felony), where he suffered from drug addiction prior to his arrest, he
acknowledged his problem, he successfully underwent treatment, and he
demonstrated his capacity to carry out his duties due to progress in treatment
program. 1993 Op Com Ed No. 13021.
44. -- -- --Physical force or contact
Suspension
for 3 months without pay was properly assessed against tenured teacher who
pulled disruptive student from his seat by back of student's neck and pushed
him to back of classroom, leaving bruises and scratches on student's neck and
back. Re Community School Board No. 22 of New York City, 1982 Op Comr Ed No.
10971.
Suspension
of one semester is appropriate punishment for assistant dean of school who used
handcuffs to restrain student, carried stick resembling policeman's nightstick,
wore combat-style boots, and on one occasion struck student with nightstick,
where school had serious student disciplinary problems, evidenced by the
assignment of school safety officers and a policeman. Re Community School
District No. 23, Op Comr Ed No. 11102.
Teacher
who grabbed student by shoulders and forcefully pushed him against wall in
response to students disruptive conduct is guilty of using unnecessary force against
student, and in light of teacher's prior conduct in using unnecessary force in
recent past warrants his suspension from employment for period of one school
year. 1989 Op Comr Ed No. 12216.
Suspension
of teacher for 2 months was appropriate sanction for using excessive force
against student, who left classroom without permission and was pursued by
teacher into hallway, with ensuing altercation resulting in student sustaining
scratch marks and bruises to his neck. 1991 Op Comm Ed No. 12475.
Suspension
of teacher for one and 1/2 years was appropriate for his immoral conduct and
conduct unbecoming teacher involving improper conversations with students about
sexual activities and improper physical contact with students; in mitigation,
teacher had prior unblemished disciplinary record for nearly 20 years. 1995 Op
Comm Ed No. 13397.
45. -- -- --Failure to follow procedures
Suspension
without pay for 2 years is proper penalty against tenured physical education
teacher who (1) deliberately failed to file proper lesson plans, (2) engaged in
conduct unbecoming teacher when he allowed other students to retaliate against
student being physically restrained by teacher and (3) knowingly allowed 2
students to fight openly in his class. Re Board of Education of Cattaragus
Cent. School Dist., 1982 Op Comr Ed No. 10978.
Two-year
suspension of teacher without pay was appropriate penalty where she failed to
follow committee system in grading Regents examination, but was not found
guilty of alteration or manipulation of students' answers, and she had served
school district for more than 5 years without other incidents giving rise to
disciplinary charges. 1994 Op Comm Ed No. 13097.
Penalty
of 6 months suspension without pay was not excessive where tenured teacher, who
was also acting union chapter chair, disregarded mandatory procedures and,
despite being informed by principal that paychecks of certain teacher were
being withheld until he complied with those procedures, grabbed all checks on
table in principal's office and delivered checks issued to other teacher, later
returning remaining checks to principal; even if respondent improperly withheld
other teacher's paychecks, petitioner was not justified in taking matters into
his own hands in disregard of contractual grievance procedure to "obey
first and grieve later." 1994 Op Comm Ed No. 13190.
Suspension
of guidance counselor for 2 years without pay was appropriate sanction for
conduct unbecoming teacher by providing deceptive and misleading information to
his superiors, and for neglect of duty and incompetence by failing to prepare
accurate records of students' activities, inter alia. 1996 Op Comm Ed No.
13620.
46. -- -- --Absenteeism
Suspension
without pay for 6 months was appropriate penalty where tenured teacher falsely
represented reasons for his absence from school on one occasion and improperly
took sick leave on 3 occasions. 1999 Op Comm Ed No. 14,280.
Suspension
of tenured school secretary without pay for one year is appropriate sanction
where secretary's record for attendance and punctuality was very poor. Re Board
of Education of City School Dist. of City of New York, Op Comr Ed No. 10378.
Teacher
who abuses sick leave by consistently engaging in evening activities after
taking sick leave for school day is properly suspended without pay. Re Board of
Education, 1986 Op Comm Ed No. 11682.
47. -- -- --Failure to control class
One-year
suspension without pay is appropriate penalty to be assessed against teacher
found guilty of incompetency, inefficiency and neglect of duty based upon his
alleged inability to maintain proper classroom discipline and control over his
students. Re Board of Education of Sewanhanka Central High School Dist., 1984
Op Comr Ed No. 11284.
Evidence
is sufficient to warrant penalty of 2 years suspension without pay against
teacher charged with rendering inefficient and incompetent service due to his
failure to exercise proper control of his classroom. Re Board of Education of
Dundee Cent. School Dist., 1982 Op Comr Ed #10855.
48. -- --Suspension inappropriate
Although
board of education properly determined that petitioner was guilty of conduct
unbecoming teacher based on his choice of language directed to various
students, penalty imposed, suspension without pay for period in excess of 6
months, was so disproportionate to offense as to shock sense of fairness,
considering petitioner's unblemished 17-year record in school district. McFadden v Board of Education, 153
A.D.2d 742, 544 N.Y.S.2d 885, 1989 N.Y. App. Div. LEXIS 11210 (N.Y. App. Div. 2d Dep't 1989).
Hearing
panel's recommendation that teacher be suspended at reduced pay was improper
and inconsistent with CLS Educ § 3020-a. 1994 Op Comm Ed No. 13201.
49. -- -- --Suspension too lenient
Suspension
for 1 year was disproportionately lenient, and penalty was modified to
dismissal, where statistical evidence and record of teacher with 20 years
experience showed that teacher had ceased to function as an effective teacher,
despite relatively minor nature of individual charges, personal problems and
admitted knowledge of subject being taught. Re Board of Education of the
Hauppauge Union Free School Dist., Op Comr Ed #10125.
Since
junior high school principal's conduct was extremely inappropriate when he
refused to pay $ 6,000 loan back to teacher, principal's penalty was increased
from fine of $ 4,500 to 2 months of suspension without pay. Re Board of
Education of Community School Dist. No. 32 of City School Dist. of City of New
York, 1988 Op Comm Ed No 11959.
Decision
of hearing panel finding teacher guilty of seven specifications of conduct
unbecoming a teacher, including requiring child to kneel for lengthy period of
time, telephoning her principal at home without cause, leaving her classroom to
conduct personal business, making inappropriate remarks before her class
regarding their ability, and failing to evacuate building in timely manner
during fire drill, indicates serious exercise of poor judgment; although not
warranting termination of services, penalty of 30 days' suspension is
disproportionately lenient and inadequate to impress upon teacher that her
attitude is inappropriate and cannot continue, such that suspension without pay
for one semester is appropriate penalty. 1988 Op Comr Ed 12022.
Physical
force as a means of classroom control is not acceptable and will not be
tolerated in the schools of this state. The petitioner, board of education, has
a duty to protect the safety of its pupils and to provide them with a safe
school environment. On this critical issue of educational policy, the
Commissioner of Education will substitute his judgment for that of the hearing
panel, and authorize the board of education to suspend the teacher without pay
for a period of one year. The determination of the hearing panel which imposed
a fine of $ 3,000, is annulled, and the school board is authorized to suspend
the teacher without pay for a period of one year, with restitution to the
teacher for any sums which the teacher had paid towards the fine imposed by the
panel. Appeal of the City School District of the City of Elmira, 1990 Op Comr
Educ No 12394.
A six
month suspension without pay was considered disproportionately lenient, and the
Commissioner substituted his judgment for that of the hearing panel by
suspending the teacher without pay for a period of one year, and admonished the
teacher that continuing misconduct will warrant termination of his employment.
The teacher's misconduct included: failure to teach the complete syllabi for
Regents level courses; delivering lessons lacking aims, motivation, and student
interaction; teaching without lesson plans; failure to provide instruction
during class time; giving inappropriate homework assignments; failure to take
attendance properly; and permitting excessive student absenteeism. The teacher
also failed to attend scheduled faculty meetings and meetings with his
supervisors; failure to return signed observation reports; did personal work
instead of assigned duties; spoke inappropriately to a supervisor in front of
students; failure to follow, the suggestions and instructions of his
supervisor; and was absent from school for 30 days over a period of
approximately two school years. Appeal of the City School District of the City
of New York, 1990 Op Comr Educ No 12401.
Suspension
without pay for 4 months was too lenient penalty for tenured high school
teacher's action of twice holding cigarette lighter in open position and pumping
short spray from aerosol spray container outside context of legitimate class
instruction before impressionable school children, and his action of taking
students on unauthorized airplane ride, both actions taken by teacher after he
had been specifically directed by district supervisors not to take such
actions; appropriate penalty under circumstances was one year suspension
without pay. 1994 Op Comm Ed No. 13171.
Where
teacher used excessive force in disciplining student, penalty of one-year
suspension without pay was not too lenient in view of teacher's 20 years of
service without incident and need to sufficiently alert him to seriousness of
his conduct and motivate him to improve his deficiencies. 1994 Op Comm Ed No.
13235.
Aggregate
penalty of 1 1/2 -year suspension without pay was insufficient to impress
school psychologist with severity of his misconduct, and 2-year suspension
without pay would be imposed, where his insubordination and other improper
conduct continued after 2 sets of charges were filed against him, and his
misconduct continued over extended period of time. 1994 Op Comm Ed No. 13236.
Where
tenured teacher was found guilty of one charge of incompetency, penalty of
suspension without pay for 20 weeks was too lenient, and one-year suspension
without pay would be more appropriate, considering that teacher previously had
been found guilty of misconduct including starting fire in classroom and making
inappropriate remarks about students; previous findings of guilt and present
proceeding indicated pattern of poor judgment that could be harmful to
students. 1995 Op Comm Ed No. 13303.
Suspension
of 6 months was disproportionately lenient where tenured teacher pursued
romantic relationship with high school student described by her as
"intimate" and "monogamous," teacher showed no remorse for
his actions, and he was often involved in students' personal lives to degree
unsuitable in context of student/teacher relationship; under circumstances,
suspension of 3 years without pay was appropriate. 1996 Op Comm Ed No. 13589.
The
charge concerning respondent teacher's inability to properly control her class
which resulted in at least one serious injury to a child involves a serious
question as to her competency as a teacher and therefore, the teacher should
have been terminated rather than suspended for 3 years where there is no
suggestion in the record that the teacher's deficiencies were only temporary in
nature or that it might be reasonably anticipated that her performance might
improve in the future. 1981 Op Comr Ed No 10481.
Ten weeks
suspension without pay of teacher found guilty of serious instances of
insubordination against his superiors was disproportionately lenient for
offenses committed, even in light of teacher's 20 years of service with no
previous misconduct, and more appropriate penalty to impress upon teacher that
his insubordinate behavior is completely unacceptable and must not continue is
2 year suspension without pay. Re Appeal of Board of Education of Uniondale
Union Free School Dist., 1987 Op. Comm. Ed. No. 11832.
50. --Dimissal, generally
Receipt
by a high school teacher, who was charged with the sale of large quantities
(90,250,400 pills) of a controlled substance and attempted possession of a
controlled substance, of a certificate of relief pursuant to Correc Law § 701,
would not bar a proceeding by the city board of education, pursuant to Educ Law
§ 3020-a, to have the teacher dismissed, since such certificates bar only
automatic forfeitures. In addition, the matter would be remitted for further
consideration of the disproportionately lenient penalty of a reprimand, where
there was no statute or case law authorizing the reviewing court to increase
the penalty itself. Riforgiato v Board of Education, 86
A.D.2d 757, 448 N.Y.S.2d 74, 1982 N.Y. App. Div. LEXIS 15333 (N.Y. App. Div. 4th Dep't 1982).
In an
Article 78 proceeding by a tenured teacher to review his dismissal on the
ground of an unauthorized absence for a three-month period from his teaching
duties, the dismissal was proper where it, together with a suspension without
pay pending the city retirement board's determination of the teacher's
application for a disability pension, did not constitute improper multiple penalties
inasmuch as the teacher's suspension was only intended to prevent him from
receiving pay during the stay of his dismissal for the purpose of saving any
pension rights he might have. Kuhnle v Ambach, 91 A.D.2d 779, 457
N.Y.S.2d 1013, 1982 N.Y. App. Div. LEXIS 19674 (N.Y. App. Div. 3d Dep't 1982).
Tenured
teacher failed to show that a hearing officer who heard a charge alleging that
the teacher submitted fraudulent timesheets to obtain payment for services he
did not perform was influenced by a letter which the chancellor of the board of
education sent to all arbitrators, and the appellate court held that there was
adequate evidence in the record to sustain a decision discharging the teacher
from his job. Hegarty v Bd. of Educ., 5 A.D.3d 771,
773 N.Y.S.2d 611, 2004 N.Y. App. Div. LEXIS 3555 (N.Y. App. Div. 2d Dep't 2004).
Charges
against tenured teacher must be both substantial and substantiated in order to
justify imposition of penalty of dismissal; teacher dismissed after finding
that he knowingly exhibited film of pornographic nature to students. Re Board
of Education of City School District of City of New York, Op Comr Ed No. 10194.
Penalty
of dismissal is appropriate where record is replete with incidents in which
teacher was given directions repeatedly and continously declined to obey them;
dismissal is not appropriate if acts of insubordination are isolated incidents
and if there is convincing demonstration that teacher intends to comply with
proper administrative directions given him upon his return to classroom. Re
Board of Educ. of Commack Union Free School Dist., 1984 Op Comr Ed No 11317.
Teacher
found guilty of certain charges constituting conduct unbecoming a teacher in
conduct prejudicial to good order, efficiency and discipline of service would
not be subject to penalty of dismissal where teacher's conduct which formed
basis of charges was result of mental illness, and unrefuted testimony of
teacher's treating physician was that teacher would remain free of symptoms of
mania provided he continued to take medication. Re Cohen, 1986 Op Comm Ed No.
11613.
Decision
by Workers' Compensation Board that tenured teacher suffered causally related
injuries at work did not preclude findings of hearing panel that teacher's
absences amounted to neglect of duty, incompetence and physical disability,
where Board did not determine that teacher was unable to work as result of her
injuries, and excessive absences warranted dismissal of tenured teacher despite
her length of service and satisfactory evaluations as teacher. Re Appeal of the
Board of Education of the Plainview-Old Bethpage Cent. School Dist., 1987 Op
Comm Ed No. 11849.
To impose
penalty of dismissal, charges pursuant to CLS Educ § 3020-a must be both substantial
and substantiated. 1993 Op Com Ed No. 13044.
51. -- --Dismissal appropriate
Penalty
of dismissal for tenured teacher was not so shocking as to be set aside where
teacher was found guilty of certain charges of misconduct including, inter
alia, his refusal to obey superintendent's directive ordering him to cease and
desist from residing with 16-year-old boy who was still attending school within
district, and encouraging and assisting student to leave his mother's home
against her wishes, even to extent of waiting outside student's house with
loaded gun on night student was to leave home. Weaver v Board of Education, 129
A.D.2d 711, 514 N.Y.S.2d 473, 1987 N.Y. App. Div. LEXIS 45397 (N.Y. App. Div. 2d Dep't), app. denied, 70 N.Y.2d 607, 519 N.Y.S.2d 1031, 514
N.E.2d 389, 1987 N.Y. LEXIS 18576 (N.Y. 1987).
It was
proper to terminate petitioner's employment as tenured elementary school
teacher where he had employed inappropriate mode of "discipline" on
student, he instructed student's mother not to tell her husband that their
daughter received detention from him, he encouraged and arranged fight between
2 fourth grade boys as means of controlling alleged animosity between them (it
was later canceled when petitioner learned that such fights were illegal), he
inappropriately responded to parent's concerns about cheating in his classroom,
and he had already pleaded guilty to 2 instances of misconduct. Healy v Sheldon, 235 A.D.2d 992, 652
N.Y.S.2d 886, 1997 N.Y. App. Div. LEXIS 764 (N.Y. App. Div. 3d Dep't 1997).
Board of
Education does not exceed its discretion in dismissing teacher based upon
finding that teacher deliberately falsified documents by adding self
complimentary remarks to communications from parents and former administrators
and then sought inclusion of complimentary letters in her personal file. Re
Greenberg, 1979 Op Comr Ed No. 9939.
Dismissal
was appropriate penalty where hearing panel found teacher to be incompetent at
school where she taught, but reasoning of panel that teacher was not
incompetent to teach in all settings was unpersuasive, since school districts
cannot be required to assign an incompetent teacher to other groups of children
of different socio-economic backgrounds in hope that there is some group of
children that such teacher might be competent to teach. Re Board of Education
of the City School Dist. of the City of Rochester, 1979 Op Comr Ed #10123.
Dismissal
is proper sanction for tenured teacher who furnishes students of district with
Department of Motor Vehicles Form, MV278, falsely evidencing that students
attended required course in highway safety instruction at private driver
education school. Re Fabrizi, Op Comr Ed #10445.
Dismissal
is appropriate sanction where school teacher participates in walkout of
students to protest perceived racial injustice at school where teacher is
unwilling to disavow repetition of actions. Re Board of Education of City
School Dist. of City of N.Y., 1984 Op Comr Ed No 11331.
Dismissal
of tenured teacher was appropriate, although events leading to disciplinary
proceeding occurred over brief period of time, where teacher's incompetence
rendered her classroom unsafe environment in which students suffered physical
harm; students' right to effective instruction in safe environment far
outweighed teacher's claim for reinstatement. 1994 Op Comm Ed No. 13242.
Dismissal
of director of funded programs was appropriate penalty where (1) he was
involved in criminal misconduct over extended period of time, including
defrauding government, grand larceny and falsifying business records arising
from his improper activities in connection with bid proposals and fraudulent
over-ordering of books, and (2) no mitigating circumstances existed. 1994 Op
Comm Ed No. 13274.
Tenured
teacher was properly dismissed where severity of her insubordination and
unprofessional conduct intensified over time despite numerous warnings from
supervisors, and she subverted educational process by manipulating students and
publicizing every private grievance so students were prevented from learning.
1993 Op Com Ed No. 13044.
52. -- -- --Physical force or contact
Dismissal
of elementary school teacher was not excessive penalty for slapping face of
second grade student and punching another in stomach, knocking him against blackboard,
especially given teacher's prior suspension for physical abuse of fourth grade
students. Friedland v Ambach, 135 A.D.2d 960,
522 N.Y.S.2d 696, 1987 N.Y. App. Div. LEXIS 52862 (N.Y. App. Div. 3d Dep't 1987), app. dismissed, 71 N.Y.2d 992, 529 N.Y.S.2d 274, 524
N.E.2d 875, 1988 N.Y. LEXIS 1851 (N.Y. 1988).
Dismissal
of tenured physical education teacher was appropriate where, after being warned
repeatedly against physical contact with students, he disregarded progressive
discipline and failed to avoid contact which, regardless of its purpose, could
be interpreted by students as sexually suggestive or harassing. Forte v Mills, 250 A.D.2d 882, 672
N.Y.S.2d 497, 1998 N.Y. App. Div. LEXIS 5341 (N.Y. App. Div. 3d Dep't 1998).
Tenured
teacher will be dismissed from her position where there is ample evidence to
support charges that teacher (1) improperly administered corporal punishment on
8 separate occasions, (2) punished children by placing them outside of
classrooms with no specific destination on 10 separate occasions, (3) was
unprepared for class on 23 separate occasions, (4) failed to remove her class from
building during fire drill, (5) spoke to her students and paraprofessionals in
derogatory manner and (6) disregarded school principal by refusing to comply
with instructions which he had given her. Re Gloria Roth, 1984 Op Comr Ed No.
11245.
Teacher
who continues to perform inadequately with respect to pacing of instruction and
is unable to complete required curriculum even after being assigned teaching
assistant and who consistently uses physical force as means of controlling
pupils and maintaining discipline in classroom is properly dismissed. Re Board
of Education, 1986 Op Comm Ed No. 11692.
Teacher
who, in order to quiet her first grade class, struck two 6-year old boys on
their heads with heel of her high heeled shoe, causing lacerations to each
child's head which required sutering, indicates teacher's unfitness to teach
warranting termination of her services, despite teacher's otherwise unblemished
10 years of service. 1989 Op Comr Ed No. 12214.
It was
proper to dismiss tenured elementary school teacher who, despite prior warnings
not to engage in use of force on students, struck student while in classroom,
causing injury to student's eye. 1994 Op Comm Ed No. 13166.
Dismissal
of tenured physical education teacher was appropriate based on his touching female
students of sensitive age in area where he either knew or should have known
they would be sensitive, especially since teacher did not appreciate
seriousness of his conduct, and he had been warned repeatedly over years as to
his inappropriate physical contact with children and failed to adhere to
directives prohibiting it. 1996 Op Comm Ed No. 13607.
53. -- -- --Failure to follow procedures or carry out normal
duties
The
dismissal of a fourth-grade teacher found guilty of the charges of incapacity
to teach, conduct unbecoming a teacher and incompetency in carrying out his
assigned duties and responsibilities as a teacher was not inappropriate, where
the testimony of a psychiatrist and a clinical psychologist indicated that the
teacher was suffering from a serious personality disorder and where the
teacher's own expert did not unqualifiedly state that the teacher was ready to
resume working in a classroom situation, but rather characterized the teacher's
condition as guarded and under control. Fitzpatrick v Board of Education, 96
A.D.2d 557, 465 N.Y.S.2d 240, 1983 N.Y. App. Div. LEXIS 19089 (N.Y. App. Div. 2d Dep't 1983), app. denied, 61 N.Y.2d 607, 1984 N.Y. LEXIS 7173
(N.Y. 1984).
Dismissal
was not excessive penalty where teacher failed to properly safeguard students'
Regents' exams, failed to accurately grade them, and altered students' answers
on them. Carangelo v Ambach, 130 A.D.2d 898,
515 N.Y.S.2d 665, 1987 N.Y. App. Div. LEXIS 46889 (N.Y. App. Div. 3d Dep't), app. denied, 70 N.Y.2d 609, 522 N.Y.S.2d 109, 516
N.E.2d 1222, 1987 N.Y. LEXIS 19295 (N.Y. 1987).
Termination
of school psychiatrist's services was appropriate penalty where he refused to
submit evaluation or preliminary report after examining child, and where he
refused to accept transfer. Re Brown, 1979 Op Comr Ed #10146.
54. -- -- --Lack of class discipline or control
Where
there is substantial evidence that teacher failed to maintain proper student
discipline on numerous occasions, and failed to maintain proper records of
classwork and attendance and evidence established that teacher was given notice
on several occasions that he must improve discipline, penalty of termination of
services is not unduly drastic; lack of proper discipline is serious problem
since it directly affects education of students, which is primary function and
responsibility of district. Re Superintendent of Schools of Putnam Valley Cent.
School Dist., Op Comr Educ No. 10,000.
Proper
penalty was dismissal where teacher was guilty of numerous and serious acts of
neglect of duty and insubordination (including failure to instruct students,
improper grading, loss of students' exams, failure to take attendance, and
failure to maintain order in class) which showed that he was not likely to
function in productive manner and comply with future directives from
administrators if he returned to his teaching position. 1998 Op Comm Ed No.
14064.
Termination
of tenured teacher was appropriate penalty for deficiency in basic areas of
teaching ability, despite her claim that she should not be blamed for effects
of new program of which she was part, where record showed that she failed to
control her classroom, maintain discipline among students and submit
appropriate lesson plans, and that she demonstrated incompetence in teaching
techniques. 1993 Op Com Ed No. 13024.
55. -- -- --Absenteeism
Penalty
of dismissal was proper where teacher was found to have continued to abuse sick
leave policy after she had already been served with charges and specifications
relating to her allegedly unauthorized use of sick leave on days other than
those involved in this proceeding, and for which teacher was suspended without
pay for 3 months, such that teacher's continued practice of claiming day of
sick leave while proceeding to work at another establishment on evening of the
same day is, under circumstances, inexcuseable, and in light of fact that this
is third occasion upon which teacher has been charged and found guilty under
statute, termination of services is appropriate penalty. Re Appeal of Board of
Education of City School District of City of Elmira, 1987 Op. Comm. Ed. No.
11801.
Dismissal
of elementary school teacher was appropriate where she evidenced unwillingness
to cooperate with her supervisors and take reasonable direction from them, and
she responded to what she perceived as series of illegal actions on part of
school district by engaging in pattern of insubordinate and unprofessional
conduct and by repeatedly failing to report to work, rather than challenging
those actions through contractual grievance proceedings, administrative
appeals, or judicial proceedings. 1994 Op Comm Ed No. 13160.
56. -- --Dismissal inappropriate
Penalty
of termination from petitioner's tenured position as elementary school
principal was inappropriate, despite his conduct in authorizing payment of
retroactive salary without appropriate formal school board approval, his
failure to account for budget shortfalls, and his concealment of those
deficits, where he had unblemished 15-year record, there was no evidence of
intentional wrongdoing, his acts were isolated incidents and did not involved
moral turpitude or fraud, and he did not take any money to which he was not
entitled. Perotti v Board of Educ., 218 A.D.2d
803, 631 N.Y.S.2d 65, 1995 N.Y. App. Div. LEXIS 8959 (N.Y. App. Div. 2d Dep't 1995), app. denied, 88 N.Y.2d 802, 644 N.Y.S.2d 689, 667
N.E.2d 339, 1996 N.Y. LEXIS 703 (N.Y. 1996).
Dismissal
of a teacher who was absent from school for 3 days reportedly because of child's
illness but actually for vacation trip is inappropriate. Re Board of Education,
North Syracuse Central School District, Op Comr Ed No. 1111.
Charges
are insufficient to sustain penalty of dismissal under CLS Educ L § 3020-a
against teacher who (1) struck student with his open hand after being provoked,
(2) failed to carry out suggestions for improvement made by his supervisor and
teacher-trainer and (3) failed to maintain proper discipline and instruction in
class. Re Board of Education of City School Dist. of City of New York, 1984 Op
Comr Ed No. 11396.
Teacher
who performs incompetently for period of time but who follows administrative
directives to alter teaching style and consequently eliminates deficiencies is
properly reprimanded but is not subject to dismissal for unfitness to teach. Re
Board of Education, 1986 Op Comm Ed No. 11670.
Penalty
of dismissal was neither mandatory nor warranted in case of teacher found
guilty of third degree larceny, occurring off school premises, where record did
not reveal details of theft, teacher's motives, or impact of crime on victim,
there was no indication of any other criminal offense or misconduct during
teacher's period of employment, publicity, consisting of 3 brief newspaper
articles summarizing court activity, was minimal, comments to school officials
were few, offering both criticism and support, teacher acknowledged guilt in
open court, and there was no indication that he failed to make restitution or
otherwise comply with terms of probation. Re Appeal of the Board of Education
of Allegheny Central School District, 1987 Op Comm Ed No. 11863.
Penalty
of termination was not warranted where tenured teacher was found guilty of
misconduct in connection with charge that he grabbed student by collar, causing
student to choke and cough an d leaving red mark on student's neck, but
teacher's prior record indicated high level of competence, and provocative
behavior by students preceded incident for which he was found guilty. 1994 Op
Comm Ed No. 13196.
57. --Placing letter in personnel file
Written
communication placed in teacher's personnel file requiring him to notify his
department head of dissemination of any material likely to be considered
controversial by staff, class, or community, and indicating that teacher had
exercised "poor judgment" in distributing sexually explicit article
to his 12th grade class, was nothing more than "administrative
evaluation," and was properly included in his personnel file without
resort to formal procedures of CLS Educ § 3020-a, since letter did not impose
punishment, and merely reminded teacher of rules applicable to all teachers at
school. O'Connor v Sobol, 173 A.D.2d 74, 577
N.Y.S.2d 716, 1991 N.Y. App. Div. LEXIS 16809 (N.Y. App. Div. 3d Dep't 1991), app. dismissed, 80 N.Y.2d 897, 587 N.Y.S.2d 902, 600
N.E.2d 629, 1992 N.Y. LEXIS 3075 (N.Y. 1992).
Memoranda
placed in teachers' files were critical evaluations of teachers issued by
principal concerning their actions as district employees, and were not
disciplinary reprimands authorized by § 3020-a of education law. Re Leber Op
Comr Ed No. 10269.
In
disciplinary proceeding against high school track coach who gave vitamin
supplements to student athletes despite board's instruction to avoid doing so,
rational basis existed for board's decision to place counseling letter in
coach's file, rather than dismiss him, where board's determination was based on
careful deliberation, and school district's policy had since been modified to
prevent recurrence. 1995 Op Comm Ed No. 13302.
58. Reinstatement
A teacher
whose position was abolished and employment was terminated during the pendency
of proceedings commenced pursuant to Educ Law § 3020-a to suspend him for
incompetency and misconduct was not entitled to reinstatement to employee
status with pay prior to the suspension hearings. Furthermore, it was
appropriate for the school district to continue with the hearing and dispose of
the pending charges, even though the position had been abolished and the
teacher had been terminated, since the outcome would affect his reinstatement
rights. Rubtchinsky v Moriah Cent. School
Dist., etc., 82 A.D.2d 960, 440 N.Y.S.2d 370, 1981 N.Y. App. Div. LEXIS 14697 (N.Y. App. Div. 3d Dep't), app. dismissed, 54 N.Y.2d 1025, 1981 N.Y. LEXIS 5431
(N.Y. 1981).
In an
Article 78 proceeding brought by a former teacher to compel her reinstatement
as a tenured teacher, reinstatement was properly denied where the teacher was
granted a one-year leave of absence on expiration of her sick leave benefits,
where she never supplied required medical certification, and where she never
expressed a desire to return to her teaching position until three and one-half
years after the expiration of her leave of absence. West v Board of Trustees, 89 A.D.2d
796, 453 N.Y.S.2d 511, 1982 N.Y. App. Div. LEXIS 17914 (N.Y. App. Div. 4th Dep't 1982).
For
purposes of tenure and reinstatement after termination, teaching assistant who
worked 5 days per week and 5 1/2 hours per day was full-time employee of school
district where (1) letter sent by district at end of school year referred to
her "continuing" employment, (2) her benefits under collective
bargaining agreement, including step increases in salary and eligibility for
longevity payments, were typically reserved for full-time employees, and (3)
she was never given any indication--even on job posting for her position--that
she was considered to be employed part time in her 6 years of employment with
district. Walters v Amityville Union Free Sch.
Dist., 251 A.D.2d 590, 674 N.Y.S.2d 763, 1998 N.Y. App. Div. LEXIS 7541 (N.Y. App. Div. 2d Dep't 1998).
Duties
performed by tenured school social worker before her position was abolished
were similar to services provided by private independent contractor pursuant to
memorandum of understanding with respondent board of education, and she was
therefore entitled to be reinstated to her former position, where (1) most of
her time had been devoted to diagnostic services, student counseling, issue
processing, in-classroom behavior intervention, parent counseling and
consultation, family outreach, and consultation with and training of
participating district personnel, (2) duties performed by employees of
independent contractor involved student counseling, issue processing,
in-classroom behavior intervention, parent counseling, family outreach
activities, clinical supervision, academic and behavior consultation, training
and management services, and (3) independent contractor's employees were not
required to perform diagnosis, psychotherapy or assessment-based treatment
planning. 2006 Op Comm Ed No. 15,375.
Teacher
terminated in violation of his tenure rights was entitled to reinstatement and
back pay less any earnings received from other employment. Re Jones, Op Comr Ed
#9547.
Earnings
from petitioner's full-time evening job during the term of the school year for
which she was wrongfully terminated from her teaching position are deductible
from a backpay award made to petitioner but payment for evening hours worked in
addition to petitioner's 40 hour work week are not deductible since such income
is supplemental in nature; furthermore, respondent must also compensate the
petitioner for her loss of health insurance coverage and must make contribution
to the Teachers' Retirement System for petitioner's credit since these are
obligations respondent would have incurred on petitioner's behalf had she not
been wrongfully terminated. Re Specht, 1981 Op Comr Ed No 10480.
In action
under CLS Educ L § 3020-a against tenured teacher who pleaded guilty to charge
of criminally negligent homicide, proof of teacher's conviction of felony
constituted prima facie proof that teacher engaged in conduct unbecoming
teacher, even though offense does not involve criminal intent or knowing
criminal act; hearing panel erroneously concluded that presumption of misconduct
had been rebutted, where panel inferred teacher's fitness from board of
education's failure to offer specific proof that teacher's classroom
performance or role model status had been adversely affected by his arrest or
attendant publicity, and where panel inferred fitness from fact that board
permitted him to continue teaching after his arrest. Re Board of Education of
Frontier Central School Dist., 1984 Op Comr Ed No. 11241.
Where
there is conflicting testimony in proceeding under CLS Educ § 3020-a, commissioner
will not substitute its judgment for that of hearing panel since hearing panel
is in better position to assess credibility of those who testified at hearing.
Re Appeal of Board of Education, 1984 Op Comr Ed No 11299.
Petitioner,
a tenured music teacher, was found guilty in a previous hearing of charges
relating to class preparation, and the panel recommended a six month suspension
without pay, which was appealed to the Commissioner of Education, and appeal
dismissed, after a finding that the record supported the hearing panel
determination and recommendation. Upon completion of the disciplinary
suspension, petitioner returned to the school district in February 1990 and was
assigned by the school district to six periods of "hall duty" a day.
This assignment required petitioner to remain in the hallway to supervise
students for six periods of the school day and precluded petitioner from
teaching classes in any capacity during the day. Although, by affidavit,
counsel for the school district stated that the petitioner had been given an
assignment during the 1990-91 school year to teach music and to provide
supervisory duties for the balance of the school day, even if the appeal had
not been rendered moot by virtue of the new assignment given to petitioner, the
appeal would be dismissed on the merits. Petitioner's contention that an
assignment to supervisory hall duty is outside of both the certification and
tenure area because it does not involve direct classroom duties as a music
teacher is rejected. The supervision of students while they are in a lunchroom,
study hall, or in a hallway, is part of the teaching duties of all teachers and
an assignment exclusively to such supervisory duties is not a violation of the
teacher's tenure or certification rights. Furthermore, since the assignment to
hall duty is not defined as a penalty or punishment pursuant to the provisions
of § 3020-a of the Education Law, petitioner's arguments that the assignment
constitutes a double penalty or it constitutes a penalty imposed without the
procedure required by the provisions of § 3020-a, are without merit. Appeal of
Bahret, 1990 Op Comr Educ No 12419.
Tenured
teacher, who had been relieved of class assignments pending disciplinary
hearing under CLS Educ § 3020-a, was not improperly reinstated as 7th grade
social studies teacher at mid-point of 1993-94 school year, where parent
requested that his return to teaching be delayed until start of 1994-95 school
year, but offered no proof to support her claim that teacher's mid-year return
would adversely affect students; under CLS Educ § 1711(5)(c), board of
education (through superintendent) has authority to determine placement of
teachers in class. 1994 Op Comm Ed No. 13178.
On being
ordered to reinstate teacher with back pay, school district could not reduce
teacher's award by amount of unemployment benefits he had received prior to
reinstatement, because unemployment benefits are not considered compensation
for purposes of computing back pay; it was of no moment that district did not
pay unemployment insurance tax to State Labor Department but instead made
dollar-for-dollar payment to state under CLS Labor § 565 for any unemployment
benefits awarded to its former employees. 1995 Op Comm Ed No. 13483.
59. Administrative review
Board of
education is required to follow recommendation of hearing panel convened pursuant
to CLS Educ § 3020-a, and court should generally not substitute its judgment
for that of such panel; there is presumption that panel possesses expertise
which places it in better position to evaluate penalty to be applied in cases
of misconduct than those lacking panel's special insight or experience. Kaczala v Board of Education, 123
A.D.2d 668, 507 N.Y.S.2d 38, 1986 N.Y. App. Div. LEXIS 60818 (N.Y. App. Div. 2d Dep't 1986).
Commissioner
of Education lacked authority to review termination of teacher resulting from
determination made by Acting Superintendent of Community School District of
City of New York; under current version of CLS Educ § 3020-a(5), teacher's only
recourse was to apply to Supreme Court to vacate or modify respondent's
determination that he had waived his right to hearing, and to seek review under
CLS CPLR § 7511(b)(1)(iii) of his claim that acting superintendent exceeded her
legal authority in proceeding with inquest. 2001 Op Comm Ed No. 14,725ec.
Appeal
challenging respondents' placement of disciplinary letters and grievance
decisions in teacher's personnel file, without procedural protections under CLS
Educ § 3020-a, was untimely where it was commenced more than 6 months after
date of most recent document in file, and almost 3 months after teacher asked
principal to remove all disciplinary letters and grievance documents from his
file; continuing wrong doctrine was inapplicable since placement of each letter
or document was discrete action and was not inherently unlawful, teacher's
letter to principal did not extend his time to appeal, and his claim that he
did not promptly appeal because he did not want to file legal proceeding
against principal without first giving him opportunity to remove items in
question from his file did not excuse his delay. 2011 Op Comm Ed No. 16,193.
Petitioner,
who challenged suspension of elementary school principal, did not have standing
to maintain appeals on behalf of students who allegedly were impacted by
principal's absence, where he failed to show that he suffered personal damage
to his civil, personal or property rights. Furthermore, since the enactment of
amendments to § 3020-a in 1994, the Commissioner no longer has jurisdiction to
hear appeals from the hearing officer's decision. Section 3020-a(5) provides
that the employee or board of education must make an application to the New
York Supreme Court to vacate or modify a hearing officer's decision. 2000 Op
Comm Ed No. 14,410.
Pursuant
to 1994 amendments to CLS Educ § 3020-a, commissioner lacked jurisdiction to
grant school administrator's request to dismiss disciplinary charges against
him, which would require commissioner to review merits of those charges. 2008
Op Comm Ed No. 15,720.
Commissioner
lacked jurisdiction of appeal challenging actions of respondent board of
education and superintendent in administratively processing charges against
petitioner under CLS Educ § 3020-a, since petitioner's request to dismiss
misconduct charges against him would require review of merits, which was not
within commissioner's authority. 2008 Op Comm Ed No. 15,735.
On appeal
from disciplinary determination under CLS Educ § 3020-a, Commissioner of
Education dismissed claim that petitioner was entitled to have disciplinary
charges against her heard by 3-member panel, and that she should have been
permitted to select one member of that panel because charges against her
included alleged pedagogical incompetence, where she had initially commenced Article
78 proceeding to enjoin respondent school district from proceeding with
disciplinary hearing unless it appointed 3-member panel, Article 78 proceeding
related to same set of facts and raised essentially same issues as were raised
before commissioner, and court had retained jurisdiction over parties' dispute
by staying arbitration of petitioner's claims against respondent pending
commissioner's determination of her appeal. 2003 Op Comm Ed No. 14,986.
Individual
members of hearing panel convened to hear disciplinary charges are not
necessary parties to appeal of panel determination. Re Board of Education, 1986
Op Comm Ed No. 11692.
Under
amendment to CLS Educ § 3020-a, effective September 1, 1994, review of
statutory determinations, including all motions regarding sufficiency and
timeliness of charges, is no longer within jurisdiction of Commissioner of
Education. 1995 Op Comm Ed No. 13390.
Pursuant
to amendment to CLS Educ § 3020-a, effective September 1, 1994, review of §
3020-a determinations does not lie with Commissioner of Education. 1995 Op Comm
Ed No. 13456.
Commissioner
of Education no longer has jurisdiction to review CLS Educ § 3020-a
determinations based on charges filed after September 1, 1994; accordingly,
petitioner could not challenge charges filed on October 4, 1994 in proceeding
before commissioner under CLS Educ § 310. 1995 Op Comm Ed No. 13472.
60. Judicial remedies and review, generally
In a
declaratory judgment action to determine the constitutionality of section
3020-a of the Education Law, which provides that the chairman of a panel
hearing charges against a tenured person be chosen from a list furnished by the
American Arbitration Association, the individual members of a board of
education have standing to sue, although the board does not, because, if the
statute is found unconstitutional, they can be removed for improperly spending
money to pay the fees of the chairman of a hearing panel. Board of Education v Gootnick, 49
N.Y.2d 683, 427 N.Y.S.2d 777, 404 N.E.2d 1318, 1980 N.Y. LEXIS 2191 (N.Y.
1980).
An
arbitration commenced by petitioner teachers' association pursuant to the
grievance procedure in its collective bargaining agreement with respondent
school board to ascertain whether the rights of two teachers under the
agreement had been violated, which agreement provides that no tenured teacher
will be disciplined, reprimanded, dismissed, reduced in rank or compensation or
deprived of any professional advantage without just cause, is a separate matter
from a proceeding pursuant to CPLR article 78 subsequently commenced by one of
the individual teachers to determine if there was substantial evidence to
support a finding of a statutory basis for his discharge by the board of
education after a hearing (Education Law, § 3020-a), and the commencement of
said article 78 proceeding does not constitute an election of remedies, where
the contractual remedy of arbitration was not freely available to the
individual teacher without the consent of the association, the association
could not invoke article 78 review of the suspension or dismissal of the
individual teacher, the collective bargaining agreement recognizes that there
are remedies other than the grievance procedure available to teachers and the
agreement does not prohibit the simultaneous pursuit of available remedies; the
mere fact that the collective bargaining agreement exposes the parties to
duplicative procedures does not mandate a dismissal of the arbitration award.
Accordingly, since the only grounds for vacating an arbitration award are found
in CPLR 7511 (subd [b]) and none apply, the award directing that the teacher be
reinstated with back pay is confirmed.Susquehanna Valley Teachers Asso. v
Board of Education, 75 A.D.2d 140, 429 N.Y.S.2d 741, 1980 N.Y. App. Div. LEXIS
11208 (N.Y.
App. Div. 3d Dep't 1980), aff'd, 52 N.Y.2d 1034, 438 N.Y.S.2d 519, 420
N.E.2d 400, 1981 N.Y. LEXIS 2268 (N.Y. 1981).
An
Article 78 proceeding by a probationary teacher, seeking to recover unpaid
salary for the period of an unlawful ouster after reinstatement had been
voluntarily effected, was properly dismissed since the repeal of the statutory
duty to pay teachers' salaries has effectively destroyed all rights to salary
as a legal incident of tenure and replaced them with a contract right alone (Civ
S Law §§ 35, 100), in that a contractual right cannot generally be enforced
against a governmental entity in an Article 78 proceeding even when the relief
sought is limited to the payment of a debt rather than restitution for the loss
of an opportunity to perform services; the injured teacher must bring an action
at law or submit the claim to the proper auditing officer or body and seek
review pursuant to Article 78 thereafter if the audit determination is
unsatisfactory. Golomb v Board of Education, 92
A.D.2d 256, 460 N.Y.S.2d 805, 1983 N.Y. App. Div. LEXIS 16615 (N.Y. App. Div. 2d Dep't 1983).
Board of
education is required to follow recommendation of hearing panel convened
pursuant to CLS Educ § 3020-a, and court should generally not substitute its
judgment for that of such panel; there is presumption that panel possesses
expertise which places it in better position to evaluate penalty to be applied
in cases of misconduct than those lacking panel's special insight or experience. Kaczala v Board of Education, 123
A.D.2d 668, 507 N.Y.S.2d 38, 1986 N.Y. App. Div. LEXIS 60818 (N.Y. App. Div. 2d Dep't 1986).
Teacher's
claims against the New York City Department of Education (NYCDOE) that sought
review of disciplinary charges against her, challenged rulings made by an
arbitrator during her disciplinary hearing, and disputed her guilt of the
disciplinary charges were barred by res judicata, as the teacher's guilt of the
specifications was litigated at the disciplinary hearing, to which both the
teacher and the NYCDOE were parties. Williams v City of New York, 2014
U.S. Dist. LEXIS 49837 (S.D.N.Y.
Mar. 26, 2014), aff'd, 602 Fed. Appx. 28, 2015 U.S. App.
LEXIS 7513 (2d Cir. N.Y. 2015).
61. --Article 78 proceedings and the like
Deceased
teacher's representative was not required to commence Article 75 proceeding
rather than Article 78 proceeding to challenge school district's determination
which placed teacher on involuntary leave of absence for medical reasons,
without pay, even though teacher had chosen arbitration with regard to medical
claim and medical arbitrator's findings necessarily affected finality of
district's determination, where (1) arbitrator's decision pertained only to
medical aspects of claim, which representative did not challenge, and (2)
determination to suspend teacher without pay was made by school board, and thus
was subject to review under Article 78. Janke v Community School Bd. of
Community School Dist. No. 19, 186 A.D.2d 190, 587 N.Y.S.2d 733, 1992 N.Y. App.
Div. LEXIS 10658 (N.Y.
App. Div. 2d Dep't 1992).
Where
petitioner previously commenced a federal action seeking his reinstatement as a
teacher and a judgment declaring unconstitutional Education Law provision
relating to the procedure for disciplining tenured teachers, and where the
parties entered into a settlement agreement, that agreement, which was the
basis for dismissal of petitioner's subsequently reasserted federal action,
also barred, on res judicata principles, petitioner's instant Article 78 action
wherein he alleged that he was illegally suspended, underpaid since 1963 for
summer school work, and that the aforesaid settlement agreement was invalid. McFerran v Board of Education, 58
A.D.2d 917, 396 N.Y.S.2d 735, 1977 N.Y. App. Div. LEXIS 13113 (N.Y. App. Div. 3d Dep't 1977), aff'd, 45 N.Y.2d 729, 408 N.Y.S.2d 474, 380
N.E.2d 301, 1978 N.Y. LEXIS 2187 (N.Y. 1978).
Teacher
did not have standing to assert First Amendment rights of his students in
Article 78 proceeding to review determination placing letter in teacher's
personnel file which, inter alia, required him to notify his department head of
dissemination of any material likely to be considered controversial by staff,
class, or community, even though students were within zone of protection of CLS
Educ § 310, since there was no evidence that students were aware of letter and
that student speech had been chilled thereby. O'Connor v Sobol, 173 A.D.2d 74, 577
N.Y.S.2d 716, 1991 N.Y. App. Div. LEXIS 16809 (N.Y. App. Div. 3d Dep't 1991), app. dismissed, 80 N.Y.2d 897, 587 N.Y.S.2d 902, 600
N.E.2d 629, 1992 N.Y. LEXIS 3075 (N.Y. 1992).
In
proceeding to compel school district to restore petitioner to his teaching
assignment and compensating him for emotional distress as result of district's
action in assigning him to nonteaching duties, court properly dismissed
petition on ground that petitioner had no clear legal right to relief sought
since assignment to nonteaching duties was made following completion of
disciplinary proceedings conducted under CLS Educ § 3020-a, and statute neither
limited authority of school district to assign petitioner to nonteaching duties
nor required school district to restore him to his teaching duties following
completion of disciplinary procedures conducted under statute. Taylor v Hammondsport Cent. Sch.
Dist., 267 A.D.2d 987, 700 N.Y.S.2d 353, 1999 N.Y. App. Div. LEXIS 13720 (N.Y. App. Div. 4th Dep't 1999).
Trial
court erred in dismissing a supervisor's N.Y. C.P.L.R. art. 78 proceeding
against a board on the basis of primary jurisdiction because the supervisor's
claim that the termination of his employment was in bad faith, and was a
pretext in order to terminate him for "performance/personality/discipline
reasons" without providing him with the statutory due process to which he
was entitled pursuant to N.Y. Educ. Law § 3020-a or the seniority and recall
rights to which he was entitled pursuant to N.Y. Educ. Law 3013(2), (3) was not
an issue within the special competence of the Commissioner of Education; if the
trial court ultimately determined that the supervisor's position was abolished
in bad faith, he was entitled to reinstatement, but if the trial court
ultimately determined that the position was not abolished in bad faith, the
subsidiary issues of seniority and recall rights became relevant, and it would
have been proper for referral to the commissioner under the primary
jurisdiction doctrine. Matter of Verdon v Dutchess County
Bd. of Coop. Educ. Servs., 47 A.D.3d 941, 850 N.Y.S.2d 580, 2008 NY Slip Op
704, 2008 N.Y. App. Div. LEXIS 676 (N.Y.
App. Div. 2d Dep't 2008).
Hearing
officer's decision regarding an education department employee's insufficient
and at times improper performance in his position as an assistant principal was
amply supported by the evidence, and was not arbitrary or capricious as the
decision was very detailed and thoughtful, made substantial references to the
record, and was replete with specific references to the record. However, the
hearing officer erred by demoting the employee from assistant principal to
teacher because N.Y. Educ. Law § 3020-a(4) did not provide for that penalty.Matter of Garcia v Department of
Educ. of City of N.Y., 852 N.Y.S.2d 639, 2007 NY Slip Op 27505, 2007 N.Y. Misc.
LEXIS 8104 (N.Y. Sup. Ct. 2007).
62. -- --Conversion to declaratory judgment
A CPLR
article 78 proceeding may not be used to test the constitutionality of a
legislative enactment, as distinct from the constitutionality of its
application; accordingly, such a proceeding brought to determine the
constitutionality of section 3020-a of the Education Law, which requires that
the chairman of a panel hearing charges against a tenured person be chosen from
a list furnished by the American Arbitration Association, is converted to a
declaratory judgment action. Board of Education v Gootnick, 49
N.Y.2d 683, 427 N.Y.S.2d 777, 404 N.E.2d 1318, 1980 N.Y. LEXIS 2191 (N.Y.
1980).
Notwithstanding
fact that special proceeding was not the appropriate vehicle to test the
constitutionality of section of Education Law governing hearing procedures and
penalties involving charges brought against teachers, special action
challenging constitutionality of such section could be treated as an action for
a declaratory judgment. Bott v Board of Education, 51 A.D.2d
81, 379 N.Y.S.2d 172, 1976 N.Y. App. Div. LEXIS 10668 (N.Y. App. Div. 3d Dep't 1976), modified, 41 N.Y.2d 265, 392 N.Y.S.2d 274, 360
N.E.2d 952, 1977 N.Y. LEXIS 1815 (N.Y. 1977).
63. -- --Actions to enjoin, prohibit or preclude
Special
Term properly dismissed an article 78 proceeding brought by a teacher to
prohibit the Board of Education and hearing panel from conducting further
disciplinary proceedings against him pending a judicial determination as to
whether the board had followed the required statutory procedures for
determining probable cause to support the charges, where petitioner failed to
establish that the hearing panel clearly lacked jurisdiction due to the failure
of the board to comply with statutory procedures for making a finding of
probable cause. Petitioner would later raise jurisdictional and procedural
issues by review of the final determintion of the hearing panel under Educ Law
§ 3020-a, either by an appeal through the Commission of Education or an Article
78 proceeding in the nature of certiorari. Schachter v Tomaselli, 105 A.D.2d
779, 481 N.Y.S.2d 725, 1984 N.Y. App. Div. LEXIS 20899 (N.Y. App. Div. 2d Dep't 1984).
It was
error to grant petitioner extraordinary remedy of prohibition barring school
district from maintaining disciplinary proceedings against her, even if acts
done by petitioner in defense of her contract rights did not constitute
insubordination, since that was substantive matter related to merits of charges
against her and not matter that affected school district's jurisdiction over
employee discipline. Ashe v Enlarged City Sch. Dist., 233
A.D.2d 571, 649 N.Y.S.2d 97, 1996 N.Y. App. Div. LEXIS 11450 (N.Y. App. Div. 3d Dep't 1996).
Statute
of limitations contained in CLS CPLR § 217 barred Article 78 proceeding
commenced in July, 1985, seeking annulment of Commissioner of Education's
determination rendered in August, 1984 (authorizing dismissal of teacher based
on violations of CLS Educ 3020-a), since fact that commissioner was vested with
discretionary authority to grant rehearing pursuant to 8 NYCRR 276.8 did not
render his August, 1984 determination nonfinal, and teacher's application for
rehearing neither tolled nor extended limitations period; accordingly, teacher
was required to commence Article 78 proceeding within 4 months of
commissioner's August, 1984 determination. Miller v Ambach, 124 A.D.2d 882, 508
N.Y.S.2d 310, 1986 N.Y. App. Div. LEXIS 62213 (N.Y. App. Div. 3d Dep't 1986).
Commissioner
of Education's determination, which merely authorized termination of petitioner
from his position as tenured elementary school teacher, did not commence
running of 4-month limitation period under CLS CPLR § 217 since determination
had no practical impact or effect on petitioner until board of education voted
to terminate him and notified him of same by letter. Healy v Sheldon, 235 A.D.2d 992, 652
N.Y.S.2d 886, 1997 N.Y. App. Div. LEXIS 764 (N.Y. App. Div. 3d Dep't 1997).
Laches
was no bar to Article 78 proceeding brought by discharged, tenured teacher
challenging agreement whereby he attempted to waive tenure rights,
notwithstanding that suit was not brought until board of education exercised
its right under the agreement, especially absent allegation that proceeding was
not commenced within the statutory period after the invalid dismissal;
furthermore, lapse of time without showing of prejudice is no defense. Abramovich v Board of Education, 91
Misc. 2d 481, 398 N.Y.S.2d 311, 1977 N.Y. Misc. LEXIS 2392 (N.Y. Sup. Ct.
1977), rev'd, 62 A.D.2d 252, 403 N.Y.S.2d 919, 1978
N.Y. App. Div. LEXIS 10445 (N.Y.
App. Div. 2d Dep't 1978).
65. -- --Parties
In
Article 78 proceeding to review determination finding school teacher guilty of
professional misconduct, necessary parties did not include hearing panel which
heard charges, State Office of Employee Relations nor State Department of
Education, notwithstanding their involvement in case through conduct and
administration of hearing pursuant to their duties under CLS Educ § 3020-a,
since they were not necessary to complete resolution of case and they would not
be inequitably affected by any possible judgment. McSweeney v Board of Education, 138
A.D.2d 847, 525 N.Y.S.2d 956, 1988 N.Y. App. Div. LEXIS 2959 (N.Y. App. Div. 3d Dep't 1988).
In
Article 78 proceeding challenging board of education's termination of
petitioner from tenured teaching position, board's motion to remove
Commissioner of Education as party respondent would be denied, notwithstanding
that commissioner had not made determination under review and that there was no
allegation that he failed to fulfill any statutory duty, for where judicial
decision contains line of conduct to be carried out by commissioner, he is
proper party to be joined as respondent. In re Syquia v Board of Educ. of
Harpursville Cent. School Dist., 149 Misc. 2d 463, 568 N.Y.S.2d 263, 1991 N.Y.
Misc. LEXIS 92 (N.Y. Sup. Ct. 1991), aff'd, 180 A.D.2d 883, 579 N.Y.S.2d 487,
1992 N.Y. App. Div. LEXIS 1498 (N.Y.
App. Div. 3d Dep't 1992).
66. --Review of particular findings
Board of
education's determination to dismiss tenure teacher for incompetency was
annulled pursuant to an Article 78 proceeding where dismissal was based on acts
of incompetency not charged, where vague and general charges did not comply
with requirements of Education L § 3020-a, subd 2, and where evidence admitted
on matters not covered in charge was irrelevant and prejudicial. Soucy v Board of Education, 41 A.D.2d
984, 343 N.Y.S.2d 624, 1973 N.Y. App. Div. LEXIS 4462 (N.Y. App. Div. 3d Dep't), app. dismissed, 33 N.Y.2d 653, 348 N.Y.S.2d 978, 303
N.E.2d 704, 1973 N.Y. LEXIS 1058 (N.Y. 1973).
In
disciplinary proceedings of a school district against its purchasing agent,
prior convictions on two counts of grand larceny in the third degree
conclusively established under the doctrine of collateral estoppel that the
purchasing agent "did commit two separate larcenies of funds" as
charged in the disciplinary proceedings. Kelly v Levin, 81 A.D.2d 1005, 440
N.Y.S.2d 424, 1981 N.Y. App. Div. LEXIS 11756 (N.Y. App. Div. 4th Dep't 1981).
Judgment
vacating an arbitration award suspending a teacher for one year without pay was
affirmed as the penalty violated a strong public policy to protect children
from the harmful conduct of adults; the teacher engaged in an improper,
intimate, and clandestine relationship with a minor female student, showed no
remorse for the conduct, disobeyed an administrative direction to cease his
relationship with the student and not transport her in his car, and continued
to contact her even after disciplinary charges were brought against him. Matter of Binghamton City School
Dist. v Peacock, 33 A.D.3d 1074, 823 N.Y.S.2d 231 (3d Dept 2006).
Trial
court impermissibly substituted its own judgment for that of arbitrator in
dismissing a charge against a teacher and vacating the teacher's termination
because the sustained charges rationally supported the arbitrator's conclusion
that the teacher committed sexual misconduct as defined in the collective
bargaining agreement; the teacher admitted that he called the student's home
and identified himself by his first name to the woman who answered the phone,
in violation of school protocol, told the student that she had passed a recent
exam, asked her if she was happy about the results, and asked her to go out
with him. The student's mother stated that the teacher told her daughter not to
tell her mother that he was her teacher, which claim was consistent with the
student's verbal and written reports. Matter of Gongora v New York City
Dept. of Educ., 98 A.D.3d 888, 951 N.Y.S.2d 137, 2012 NY Slip Op 6255, 2012
N.Y. App. Div. LEXIS 6200 (N.Y.
App. Div. 1st Dep't 2012).
In this
Title VII of the Civil Rights Act of 1964 action, defendants were granted
summary judgment because defendants presented evidence that the unsatisfactory
ratings and charges which resulted in 60-day suspension of the employee were a
result of the employee's unsatisfactory teaching performance, lack of
receptivity to constructive criticism and professional development
opportunities, and unprofessional conduct towards students. Weber v City of New York, 973 F.
Supp. 2d 227, 2013 U.S. Dist. LEXIS 140187 (E.D.N.Y. 2013).
In an
Article 78 proceeding, the board of education would be held to have wrongfully
withheld salary and benefits from petitioner, a tenured, nonsuspended teacher,
for time spent attending a hearing requested by petitioner to review charges
brought against him relating to his status as a tenured district employee,
where the collective bargaining agreement which covered petitioner contained no
explict authorization for withholding a teacher's salary or charging personal
leave under such circumstances. Faville v Board of Education, 116
Misc. 2d 70, 455 N.Y.S.2d 81, 1982 N.Y. Misc. LEXIS 3832 (N.Y. Sup. Ct. 1982).
State
Supreme Court determined that assignment as substitute instead of as regular
classroom teacher was imposition of penalty therefore necessitating revision of
commissioner's earlier decision to prevent imposition of dual penalties. Re
Three Village Cent. School Dist., Op Comr Ed No. 10317.
67. -- --Physical force or contact
Charge of
use of excessive force on pupil, although it could not be relied on itself to
support removal of teacher, could be relied upon to establish charge of
insubordination. Hodgkins v Board of Education, 50
A.D.2d 73, 376 N.Y.S.2d 235, 1975 N.Y. App. Div. LEXIS 11440 (N.Y. App. Div. 3d Dep't 1975), rev'd, 41 N.Y.2d 962, 394 N.Y.S.2d 882, 363
N.E.2d 588, 1977 N.Y. LEXIS 1950 (N.Y. 1977).
Evidence
supported commissioner's determination that physical education teacher's
admitted "habit" of touching students constituted conduct
"unbecoming a teacher" even if duties of physical education teacher
require some physical contact, in view of students' testimony that he snapped
their bra straps during gym class or "poked" them in their back in
vicinity of their bra, coupled with his prior knowledge that such
"motivational techniques" made his female students markedly uncomfortable. Forte v Mills, 250 A.D.2d 882, 672
N.Y.S.2d 497, 1998 N.Y. App. Div. LEXIS 5341 (N.Y. App. Div. 3d Dep't 1998).
Penalty
imposed by hearing officer consisting of counseling, remediation, and 60-day
suspension violated strong public policy and was properly vacated in light of
unwanted and inappropriate physical contact and verbal conduct by teacher with
students entrusted to his care over course of 3 school years; however, court
exceeded its authority by directing that teacher's employment be terminated
rather than remitting matter for rehearing and new determination on issue of
penalty to be imposed. Board of Educ. v Yusko, 269 A.D.2d
445, 703 N.Y.S.2d 219, 2000 N.Y. App. Div. LEXIS 1383 (N.Y. App. Div. 2d Dep't 2000).
68. -- --Failure to carry out normal duties
Evidence
supported Commissioner of Education's determination that teacher failed to
properly safeguard students' Regents exams, failed to accurately grade those
exams, and altered answers on those exams, where 79 out of 705 answers on 15
students' exams were changed by someone other than students, teacher admittedly
knew answers had been changed but did nothing about it, and expert witness
testified that it was highly probable that teacher made 76 of 79 alterations;
commissioner was free to reject other expert testimony that it was impossible
to identify teacher as person who changed answers, and teacher's failure to
testify permitted commissioner to draw strongest inference against him that
opposing evidence allowed. Carangelo v Ambach, 130 A.D.2d 898,
515 N.Y.S.2d 665, 1987 N.Y. App. Div. LEXIS 46889 (N.Y. App. Div. 3d Dep't), app. denied, 70 N.Y.2d 609, 522 N.Y.S.2d 109, 516
N.E.2d 1222, 1987 N.Y. LEXIS 19295 (N.Y. 1987).
Hearing
panel's determination that tenured teacher was guilty of 5 counts of failing to
prepare proper lesson plans was not arbitrary and capricious on ground that
dissenting panel member was unduly pressured by another member to join majority
report since (1) panel's deliberative efforts did not rise to level of bias,
partiality or other impropriety or misconduct, and (2) fact that dissenting
member characterized suggested compromise, in which panelists would agree to
reexamine and modify their original opinions, as attempt to "coerce"
or "blackmail" him, did not indicate corruption or fraud which would
justify annulment of decision. Meyer v Board of Educ. of Charlotte
Valley Cent. School Dist., 182 A.D.2d 873, 581 N.Y.S.2d 920, 1992 N.Y. App.
Div. LEXIS 5292 (N.Y.
App. Div. 3d Dep't 1992).
Tenured
public school teacher's discrimination claims in federal court, arising from
her allegedly wrongful termination, were collaterally estopped because the
termination had already been litigated in state disciplinary proceedings, and
the hearing officer concluded that the teacher was dismissed because of her
insubordination and neglect of duties, not because of discrimination or
retaliation. Leon v Dep't of Educ., 16 F. Supp. 3d
184, 2014 U.S. Dist. LEXIS 60788 (E.D.N.Y. 2014), aff'd in part, vacated in part, 612 Fed. Appx. 632, 2015 U.S. App.
LEXIS 8475 (2d Cir. N.Y. 2015).
69. -- --Sexual content of class material
It was
not improper for school district to place letter in teacher's personnel file
requiring him to notify his department head of dissemination of any materials
likely to be considered controversial by staff, class, or community, and
indicating that he had exercised "poor judgment" in distributing
sexually explicit article to his 12th grade class, despite his contention that
distribution of article was matter of pedagogical methodology protected by
First Amendment, since there was no restraint on actual dissemination of
classroom material, school officials may establish and apply their curriculum
in such ways as to transmit community values, and teacher's actions did not
concern student's personal expression that occurred on school premises. O'Connor v Sobol, 173 A.D.2d 74, 577
N.Y.S.2d 716, 1991 N.Y. App. Div. LEXIS 16809 (N.Y. App. Div. 3d Dep't 1991), app. dismissed, 80 N.Y.2d 897, 587 N.Y.S.2d 902, 600
N.E.2d 629, 1992 N.Y. LEXIS 3075 (N.Y. 1992).
Letter
placed in teacher's personnel file requiring him to notify his department head
of dissemination of any material likely to be considered controversial by
staff, class, or community, and indicating that he had exercised "poor
judgment" in distributing sexually explicit article to his 12th grade
class, was neither vague, overbroad nor infringement on his ability to engage
his students in discussion in violation of free speech since (1) letter did not
forbid distribution of controversial material or discussion of controversial
ideas, and (2) measured in context in which standard would be applied, and
given that directive was issued only after teacher distributed article, he
would be able to determine materials covered after considering emotional maturity
and age level of students. O'Connor v Sobol, 173 A.D.2d 74, 577
N.Y.S.2d 716, 1991 N.Y. App. Div. LEXIS 16809 (N.Y. App. Div. 3d Dep't 1991), app. dismissed, 80 N.Y.2d 897, 587 N.Y.S.2d 902, 600
N.E.2d 629, 1992 N.Y. LEXIS 3075 (N.Y. 1992).
There was
no basis for court to vacate hearing officer's determination that tenured
English teacher was guilty of "conduct unbecoming a teacher" and
"insubordination" where, after having been previously warned of
school principal's concern regarding sexual content and age appropriateness of
material he was presenting to his 11th grade "honors class, and aware that
his prior choice of materials offended community values, he used terms
"penis" and "clitoris" when introducing topic of
"phallogocentrism" theory of feminist literary criticism involving
phallic symbolism. Bernstein v Norwich City Sch. Dist.
Bd. of Educ., 282 A.D.2d 70, 726 N.Y.S.2d 474, 2001 N.Y. App. Div. LEXIS 5039 (N.Y. App. Div. 3d Dep't), app. denied, 96 N.Y.2d 937, 733 N.Y.S.2d 375, 759
N.E.2d 374, 2001 N.Y. LEXIS 3086 (N.Y. 2001).
62. -- Article 78 proceedings and the like
Statute
plainly provided that, in any collective bargaining agreement (CBA) taking
effect on or after September 1, 1994, tenured employees had to be permitted to
elect the discipline procedures set forth in Education Law § 3020-a. Thus, the
determinative circumstance was that the governing renegotiated CBA became
effective in 2006 and, even under the CBA itself, the tenured school social
worker may well have not been foreclosed from invoking the statutory procedure. Matter of Kilduff v Rochester City
Sch. Dist., 24 N.Y.3d 505, 2014 NY Slip Op 08056, 2014 NY Slip Op 8056, 25
N.E.3d 916, 2 N.Y.S.3d 3, 2014 N.Y. LEXIS 3190 (N.Y. 2014).
1. Hearing, generally
2. --Power to regulate procedure
Unpublished decision: In an Education Law §
3020-a proceeding, dismissal of a teacher was arbitrary and capricious under
CPLR 7511 and CPLR art. 75 when (1) most of the teacher's alleged inappropriate
remarks were in direct response to questions posed by students in a sex
education class including questions about bestiality, necrophilia, orgasm, and
ejaculation; (2) nowhere in a teacher observation report, was the teacher
reprimanded for his use of language, put on notice of a dissatisfactory
performance, or warned about potential adverse consequences for his use of
slang; and (3) dismissal was disproportionate to the offense of other
statements that included telling a female student that her underwear was
exposed and telling another student "you suck, or that's what it says in
the boys' bathroom." Lackow v Dep't of Educ. of City of
N.Y., 237 N.Y.L.J. 32, 2007 N.Y. Misc. LEXIS 458 (N.Y. Sup. Ct. 2007).
60. Judicial remedies and review, generally
66. --Review of particular findings
1. In general
Probable
cause determination under Education Law § 3020-a does not fall within the
exemption for quasi-judicial proceedings under Public Officers Law § 103(1).
OML-AO-881.
2. Suspension pending hearing, generally
3. --Without pay
4. -- --Negotiation or agreement
Since
Education Law § 3020-a does not absolutely forbid withholding of pay from
suspended teacher pending resolution of disciplinary charges against him,
provision for pay with suspension may be term of negotiated agreement. Re
Plainview-Old Bethpage Congress of Teachers, 1982 Dec PERB No. U-5697.
5. Hearing, generally
School
board cannot take action during executive session except in situations in which
action during closed session is permitted or required by statute, such as when
board initiates charges against tenured person under CLS Educ § 3020-a or where
action in public could identify particular student. Comm on Open Gov't
OML-AO-4026.
If school
board reached "consensus" in executive session that is reflective of
its final determination of issue, minutes must be prepared that indicate its
action, as well as manner in which each member voted. Comm on Open Gov't
OML-AO-4026.
6. Post-hearing procedures, generally; report of findings
With
regard to findings and recommendations issued pursuant to CLS Educ § 3020-a in
connection with charges brought against teacher for misconduct and conduct
unbecoming teacher, references to offensive statements about victim's sexuality
which were not credited as truthful by panel, could be withheld from disclosure
to prevent unwarranted invasion of privacy. Comm on Open Gov't FOIL-AO-7939.
Where
teacher is subject of final determination indicating that he or she engaged in
misconduct, determination would be matter of public record and, therefore, it
would be unreasonable to prohibit reading of that record at public meeting,
including name of subject of determination. Comm on Open Gov't FOIL-AO-9251.
In NYC, the growing number of Absent Teacher Reserve (ATRs), speech teachers, and teachers of pre-k are all rated on the S/U APPR, not Danielson. So, the following procedure for formal observations stands. See Teaching For The 21st Century, Component B:
A recent arbitration ruling with significance for more than 5,000 teachers reinforces the UFT position that principals must conduct separate pre-observation and post-observation conferences when formally observing UFT members who are still rated under the Satisfactory/Unsatisfactory system.
Arbitrator Marlene Gold found that a principal’s acknowledged, so-called practice of making the post-conference for one formal observation the pre-observation conference for the next violated the UFT-DOE contract. Her ruling stressed the “clear and unambiguous” language of the contract regarding the need for separate and distinct conferences before and after a formal observation.
The arbitrator relied upon the testimony of UFT representatives when ruling that a preobservation conference must focus on the specific content of the lesson to be observed and the areas to be evaluated.
Gold ordered the formal observation report in question removed from the file of the teacher who filed the grievance. She also said that it could not be considered in determining the teacher’s overall rating for that school year.
UFT Grievance Director Ellen Gallin- Procida said the arbitrator’s ruling was important “because it confirms the different, but equally important roles of the pre- and post-observation conferences in supporting a teacher’s professional growth.”
The principal also acknowledged at the arbitration hearing that she did not announce formal observations in advance — another violation, according to Gold.
With respect to the principal’s lack of notice, Gallin-Procida said the arbitrator’s ruling “confirms that a formal observation is one where the teacher knows in advance when an administrator is coming.”
UFT members most affected by the arbitration decision include speech and pre-K teachers and teachers in the Absent Teacher Reserve and others not covered by the Advance teacher evaluation system.
Mindy Karten Bornemann, the speech improvement chapter leader, said she was delighted with the unambiguous language of the ruling. “The pre-observation conference gives our members the opportunity to discuss their lesson prior to their formal observation so they can do their very best,” she said.
UFT-DOE Agreement on rubber rooms April 15, 2010
