Arbitration Newswire: Education Law 3020-a, UFT Formal Observation Procedures, and the April 2010 rubber room letter

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

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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:

   68 Am Jur 2d, Schools §§ 233-236.

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

Tenured teacher has protected property interest in her position and right to retain it subject to being discharged for cause in accordance with CLS Educ § 3020-a. Gould v Board of Educ., 81 N.Y.2d 446, 599 N.Y.S.2d 787, 616 N.E.2d 142, 1993 N.Y. LEXIS 1726 (N.Y. 1993).

High school principal's complaint against board of education for abuse of process was properly dismissed where alleged abuse consisted of statement of charges against principal, used for proper and legitimate purpose of instituting disciplinary proceeding pursuant to CLS Educ § 3020-a. 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).

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).

Arbitrators properly determined that teachers' union members committed misconduct because their activity of engaging in peaceful picketing warranted regulation by the school district based upon a balancing of interests under the Pickering test. Matter of Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 23 N.Y.3d 251, 990 N.Y.S.2d 442, 2014 NY Slip Op 3189, 13 N.E.3d 1028, 2014 N.Y. LEXIS 997 (N.Y. 2014).

Regulations enacted in light of Kinsella Board of Education (1974, DC NY) 378 F Supp 54 remove all substantial constitutional objections to the operation of Education L § 3020-a. Kelly v Board of Education, 435 F. Supp. 904, 1977 U.S. Dist. LEXIS 14397 (W.D.N.Y. 1977).

 3. Persons protected, generally

Education Law § 3020-a specifying certain procedural provisions in dismissal proceedings, has no application to a charge that a board of education dismissed five probationary teachers solely because of their activity in support of a union. Board of Education v Helsby, 37 A.D.2d 493, 326 N.Y.S.2d 452, 1971 N.Y. App. Div. LEXIS 2836 (N.Y. App. Div. 4th Dep't 1971), aff'd, 32 N.Y.2d 660, 343 N.Y.S.2d 131, 295 N.E.2d 797, 1973 N.Y. LEXIS 1420 (N.Y. 1973).

Tenured teacher was entitled to hearing on issue of effect of his blindness on his teaching competency before termination of his employment. Bevan v New York State Teachers' Retirement System, 44 A.D.2d 163, 355 N.Y.S.2d 185, 1974 N.Y. App. Div. LEXIS 5259 (N.Y. App. Div. 3d Dep't), app. denied, 35 N.Y.2d 641, 1974 N.Y. LEXIS 2256 (N.Y. 1974).

Non-tenured teacher was not entitled to hearing prior to termination of his employment. Cardo v Board of Education, 121 A.D.2d 424, 503 N.Y.S.2d 122, 1986 N.Y. App. Div. LEXIS 58388 (N.Y. App. Div. 2d Dep't), app. denied, 68 N.Y.2d 608, 506 N.Y.S.2d 1033, 498 N.E.2d 435, 1986 N.Y. LEXIS 20084 (N.Y. 1986).

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).

Where teacher is removed for cause, the board must comply with the procedures of Education Law § 3020-a, but no hearing upon charges is mandated when the position the teacher holds is abolished. Beers v Nyquist, 72 Misc. 2d 210, 338 N.Y.S.2d 745, 1972 N.Y. Misc. LEXIS 1841 (N.Y. Sup. Ct. 1972).

The principle which governs the discharge of probationary employees under the Civil Service Law is the standard to be employed in effecting the discharge of tenured teachers who have been lawfully reduced to Taylor Law probationary status. Tuller v Central School Dist., 73 Misc. 2d 1028, 343 N.Y.S.2d 467, 1973 N.Y. Misc. LEXIS 1978 (N.Y. Sup. Ct. 1973).

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

Where tenured teacher with certification in secondary school instruction voluntarily transferred from Latin department to driver education department, he did not retained tenure. Mitchell v Board of Education, 40 N.Y.2d 904, 389 N.Y.S.2d 354, 357 N.E.2d 1008, 1976 N.Y. LEXIS 3075 (N.Y. 1976).

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).

Teacher who served beyond his probationary term without any board action regarding tenure was accorded tenure by acquiescence and thereafter could not be discharged from employment without proper cause, notice and a hearing. McCarthy v Board of Education, 73 Misc. 2d 225, 340 N.Y.S.2d 679, 1973 N.Y. Misc. LEXIS 2249 (N.Y. Sup. Ct.), aff'd, 43 A.D.2d 815, 350 N.Y.S.2d 610, 1973 N.Y. App. Div. LEXIS 7090 (N.Y. App. Div. 2d Dep't 1973).

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

Under Education Law sections specifically prohibiting payment to teacher who is not in possession of certificate, tenured teacher had no right to pay during suspension pending termination proceedings for lack of certification and withholding of his pay did not involve any infringement of his constitutional rights. Meliti v Nyquist, 41 N.Y.2d 183, 391 N.Y.S.2d 398, 359 N.E.2d 988, 1976 N.Y. LEXIS 3219 (N.Y. 1976).

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).

A tenured mathematics teacher whose provisional teaching certificate expired in 1975 and who was suspended in 1981 without pay for lack of permanent certification was not entitled to either reinstatement nor back payment of salary from the start of the schoolyear in 1981 on the basis that the teacher received in March 1982 a provisional certificate to teach business education effective the start of the school year 1981, since a teacher who does not possess a teaching certificate issued by the State is unqualified as a matter of law from teaching and may not be employed or paid by a board of education. Smith v Board of Education, 102 A.D.2d 655, 479 N.Y.S.2d 799, 1984 N.Y. App. Div. LEXIS 18834 (N.Y. App. Div. 3d Dep't 1984), aff'd, 65 N.Y.2d 797, 493 N.Y.S.2d 114, 482 N.E.2d 910, 1985 N.Y. LEXIS 15422 (N.Y. 1985).

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).

Board of education, which is public agency not listed in CLS CPL § 160.50(1)(d), was not entitled to obtain records of criminal prosecution of teacher that were sealed on termination in favor of accused for use in disciplinary hearing under CLS Educ § 3020-a on charges brought against teacher. In re Joseph M., 82 N.Y.2d 128, 603 N.Y.S.2d 804, 623 N.E.2d 1154, 1993 N.Y. LEXIS 3269 (N.Y. 1993).

Decision of Supreme Court, Appellate Division, which was not based on merits of charges against teacher but required restoration of teacher to her former position because of deficiencies in proceedings, did not preclude board of education from proceeding de novo against teacher pursuant to statute. Soucy v Board of Education, 45 A.D.2d 808, 357 N.Y.S.2d 59, 1974 N.Y. App. Div. LEXIS 4585 (N.Y. App. Div. 3d Dep't 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).

In proceeding under CLS CPLR Art 75 and CLS Educ § 3020-a to review termination of tenured teacher's employment with school district, teacher was denied due process and right to counsel where hearing officer ruled that teacher could not discuss his testimony with his attorney during any adjournments in cross-examination, and cross-examination was conducted during 5 days that extended over period of 10 weeks. Elmore v Plainview-Old Bethpage Cent. Sch. Dist., 273 A.D.2d 307, 708 N.Y.S.2d 713, 2000 N.Y. App. Div. LEXIS 6507 (N.Y. App. Div. 2d Dep't 2000).

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).

Because letters which were placed in two teacher's personnel files solely focused on the claimed past misconduct of the teachers and castigated them for their actions, there was no indication that the letters were intended to encourage the teachers to improve their performance or that they were meant to instruct them as to future matters, and the inclusion of a Special Commissioner of Investigation report further castigated the teachers, the letters constituted a disciplinary measure taken without due process in violation of N.Y. Educ. Law § 3020-a.Gutman v Board of Educ. of the City School Dist. of the City of N.Y., 852 N.Y.S.2d 658, 2007 NY Slip Op 27522, 2007 N.Y. Misc. LEXIS 8367 (N.Y. Sup. Ct. 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).

Procedures laid out in N.Y. Educ. Law § 3020-a (2000) provide more than adequate procedural safeguards to satisfy due process rights under the Fourteenth Amendment. 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).

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).

Determination by a district and a board terminating a teacher's employment was properly annulled because the evidence did not establish that the teacher's purported waiver of his rights under N.Y. Educ. Law § 3020-a was voluntary and noncoerced, and it was undisputed that the district and the board did not prefer charges or hold a hearing pursuant to § 3020-a; the trial court properly determined that the actions were undertaken in violation of lawful procedure. Matter of Pollock v Kiryas Joel Union Free School Dist., 52 A.D.3d 722, 860 N.Y.S.2d 605, 2008 NY Slip Op 5705, 2008 N.Y. App. Div. LEXIS 5610 (N.Y. App. Div. 2d Dep't 2008).

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).

Agreement to compensate tenured teacher in exchange for her immediate resignation in satisfaction of disciplinary charges was not illegal attempt to circumvent hearing procedures of CLS Educ § 3020-a since there were careful and counseled negotiations between parties, and there was no claim of duress on part of board of education. 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).

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).

Fact that teacher chose not to appeal her termination by Commissioner of Education did not bar arbitration of termination as grievance between teachers union and school district where grievance was expressly predicated only on provisions of collective bargaining agreement which prohibited termination of tenured teacher without just cause, which was claim not addressed by 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).

Fact that arbitration of grievance between teachers union and school district regarding allegedly wrongful termination of teacher could result in different determination than prior proceeding under CLS Educ § 3020-a by which teacher was terminated was not sufficient to warrant stay of arbitration. 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).

Fact that collective bargaining agreement between school district and teachers union might have exposed parties to duplicative procedures did not negate arbitrability of union grievance alleging wrongful termination of teacher, even though teacher had prior hearing under CLS Educ § 3020-a in which Commissioner of Education determined that termination was appropriate penalty for teacher's actions. 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 information supplied by bill of particulars, served promptly after demand, notice of charges against teacher was sufficient although notices did not name pupils affected and did not fix exact dates of the occurrences. 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).

Where tenured schoolteacher was apprised of specific acts allegedly constituting misconduct, viz., absenting himself from teaching position without permission, charge of neglect of duty was neither vague, nebulous nor ambiguous. 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 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).

In a disciplinary action involving a tenured teacher, the hearing officer's decision to grant the teacher's motion to dismiss six of the specifications on the sole ground that the conduct encompassed by those specifications had been addressed in counseling memoranda was arbitrary and capricious. Counseling memoranda were not considered disciplinary actions; such memoranda amounted to nothing more than administrative evaluations. Matter of Board of Educ. of Dundee Cent. School Dist. (Coleman), 96 A.D.3d 1536, 947 N.Y.S.2d 707, 2012 NY Slip Op 4849, 2012 N.Y. App. Div. LEXIS 4832 (N.Y. App. Div. 4th Dep't 2012).

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).

Considering all of the charges that were sustained by hearing panel and board of education, it could not be said that petitioner, a tenured teacher who was discharged for incompetency, was prejudiced even if a few isolated acts of alleged incompetence were deemed time barred.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).

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).

Because N.Y. Educ. Law § 3020-a(5) provided that a tenured teacher's exclusive remedy to challenge to a hearing officer's determination was by way of a N.Y. C.P.L.R. art. 75 proceeding, and because it was too late for the teacher to bring such an action, the trial court properly dismissed the teacher's action as untimely. Antoine v Bee, 26 A.D.3d 306, 812 N.Y.S.2d 557, 2006 NY Slip Op 994, 2006 N.Y. App. Div. LEXIS 1637 (N.Y. App. Div. 2d Dep't 2006).

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).

Disciplinary charge was not barred by the three-year limitations period because it sufficiently pleaded conduct constituting second-degree offering a false instrument for filing by alleging that a teacher knowingly omitted the fact that he had been a probationary teacher at another school district from his employment application. Matter of Board of Educ. of Hauppauge Union Free Sch. Dist. v Hogan, 109 A.D.3d 817, 971 N.Y.S.2d 147, 2013 NY Slip Op 5816, 2013 N.Y. App. Div. LEXIS 5765 (N.Y. App. Div. 2d Dep't 2013).

Under New York law, there is no general statute of limitations governing initiation of disciplinary proceeding, and to prevail on basis of delay subject of disciplinary hearing must demonstrate actual prejudice. DeMichele v Greenburgh Cent. Sch. Dist. No. 7, 167 F.3d 784, 1999 U.S. App. LEXIS 2344 (2d Cir. N.Y. 1999).

Court would not impute statute of limitations into CLS Educ § 3020-a where that section specifically eschews statute of limitation for conduct which constituted crime when committed. DeMichele v Greenburgh Cent. Sch. Dist. No. 7, 167 F.3d 784, 1999 U.S. App. LEXIS 2344 (2d Cir. N.Y. 1999).

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).

Where it was charged that one teacher violated regulations against physical restraint and punishment and that second teacher suffered mental disability, board was authorized to impose immediate suspensions without prior hearing. Jerry v Board of Education, 44 A.D.2d 198, 354 N.Y.S.2d 745, 1974 N.Y. App. Div. LEXIS 5263 (N.Y. App. Div. 4th 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).

Suspension of teacher without prior hearing did not deny due process of law in view of nature of charges and where teacher was paid during the suspension period and where suspension period was not of unreasonable length in view of delay caused by teacher himself. 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).

Tenured teacher who was discharged for incompetence was not required to enforce in a separate action or proceeding her right to compensation pending the final determination of the charges; rather, she could assert such right in her Article 78 proceeding to review and annul the board of education's determination. 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).

Suspension of tenured physical education teacher who absented himself from teaching position without permission did not deprive teacher of due process because it occurred prior to hearing. 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).

On charges that teachers had used unwarranted and excessive physical force upon certain of their students, school district had right to suspend teachers and require their removal from classroom, but school board was required to compensate teachers for back pay and continue to pay them their regular salaries pending a hearing and determination on charges made. Hodgkins v Central School Dist., 78 Misc. 2d 91, 355 N.Y.S.2d 932, 1974 N.Y. Misc. LEXIS 1337 (N.Y. Sup. Ct. 1974).

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).

Teacher was entitled to salary and benefits during period from reconvening of misconduct hearing to his resignation following stipulation where there was no evidence that he had interfered with school district's efforts to pursue disciplinary charges. Derle v North Bellmore Union Free School Dist., 158 A.D.2d 456, 551 N.Y.S.2d 49, 1990 N.Y. App. Div. LEXIS 1258 (N.Y. App. Div. 2d Dep't 1990), modified, 77 N.Y.2d 483, 568 N.Y.S.2d 888, 571 N.E.2d 58, 1991 N.Y. LEXIS 315 (N.Y. 1991).

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

Although suspension of a tenured teacher without pay pending final determination of disciplinary proceedings does not impair constitutional rights provided such final determination is not unreasonably delayed, there is no authority in Education Law § 3020-a for such withholding of pay. Jerry v Board of Education, 35 N.Y.2d 534, 364 N.Y.S.2d 440, 324 N.E.2d 106, 1974 N.Y. LEXIS 1060 (N.Y. 1974).

Under Education Law sections specifically prohibiting payment to teacher who is not in possession of certificate, tenured teacher had no right to pay during suspension pending termination proceedings for lack of certification and withholding of his pay did not involve any infringement of his constitutional rights. Meliti v Nyquist, 41 N.Y.2d 183, 391 N.Y.S.2d 398, 359 N.E.2d 988, 1976 N.Y. LEXIS 3219 (N.Y. 1976).

Suspension of tenured teacher without pay prior to hearing on charges did not violate due process. Polskin v Board of Education, 49 A.D.2d 968, 373 N.Y.S.2d 692, 1975 N.Y. App. Div. LEXIS 11274 (N.Y. App. Div. 3d Dep't 1975).

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 district was not empowered to withhold compensation from teacher pending final determination of misconduct charges in hearing under CLS Educ § 3020-a, even though teacher had caused delay by requesting adjournment of hearing pending disposition of criminal charges related to misconduct charges, where there was no evidence that teacher had engaged in obstructionist conduct or acted in bad faith when he requested adjournment, in that there was legal precedent supporting his position. Derle v North Bellmore Union Free School Dist., 77 N.Y.2d 483, 568 N.Y.S.2d 888, 571 N.E.2d 58, 1991 N.Y. LEXIS 315 (N.Y. 1991).

Teacher was improperly suspended without pay pending hearing on disciplinary charges where school district offered only allegation that teacher refused to return to work after being asked to do so; teacher's suspension with pay may not be converted to one without pay absent showing of obstructive conduct or bad faith on part of teacher. 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).

Tenured teacher who requested hearing pursuant to CLS Educ § 3020-a with respect to charge that he engaged in sexual misconduct with students was not entitled to salary and benefits for period during which he sought and obtained adjournment of hearing since he was fully responsible for any delays occasioned thereby. Derle v North Bellmore Union Free School Dist., 134 A.D.2d 257, 520 N.Y.S.2d 592, 1987 N.Y. App. Div. LEXIS 50443 (N.Y. App. Div. 2d Dep't 1987), app. dismissed, 71 N.Y.2d 890, 527 N.Y.S.2d 771, 522 N.E.2d 1069, 1988 N.Y. LEXIS 1269 (N.Y. 1988).

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

Teacher was entitled to back pay from date of his suspension and continued pay until such time as disciplinary proceedings were concluded where he was tenured and certified to teach business, he had been involuntarily reassigned to teach science (subject area in which he was not certified), and disciplinary proceeding under CLS Educ § 3020-a was based on fact that he lacked certification to teach subject to which he had been reassigned. Winter v Board of Educ. for Rhinebeck Cent. School Dist., 79 N.Y.2d 1, 580 N.Y.S.2d 134, 588 N.E.2d 32, 1992 N.Y. LEXIS 31 (N.Y. 1992).

Representative of deceased teacher was not entitled to receive back pay and benefits from September 16, 1983 (when teacher was improperly removed from payroll) to his death in 1985 where representative failed to offer any grounds to set aside medical arbitrator's determination that teacher was unfit for duty after October 1, 1984; representative was entitled to retroactive pay and benefits from September 16, 1983 to October 1, 1984. 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).

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

Where tenured teacher was improperly suspended without pay pending resolution of charges against him, he was entitled to back pay, subject to offset of compensation earned by him during period in which back pay was withheld, and to reinstatement of any fringe benefits which had been cancelled. Wolfson v Board of Education, 47 A.D.2d 748, 365 N.Y.S.2d 30, 1975 N.Y. App. Div. LEXIS 9026 (N.Y. App. Div. 2d Dep't 1975).

Tenured schoolteacher was entitled to be paid his salary, less any interim earnings, during period of his suspension to date of his termination by board of education. 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).

 22. Hearing, generally

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).

Commissioner of education's regulations concerning statutory hearing provided prior to suspending or terminating tenured teacher have remedied any constitutional infirmity in enforcement of that statute. Polskin v Board of Education, 49 A.D.2d 968, 373 N.Y.S.2d 692, 1975 N.Y. App. Div. LEXIS 11274 (N.Y. App. Div. 3d Dep't 1975).

Teacher who has not been suspended pending hearing of disciplinary charges under CLS Educ § 3020-a must be paid for absences while attending hearing. Kubisa v Ambach, 134 A.D.2d 691, 521 N.Y.S.2d 187, 1987 N.Y. App. Div. LEXIS 50895 (N.Y. App. Div. 3d Dep't 1987), aff'd,72 N.Y.2d 842, 531 N.Y.S.2d 800, 527 N.E.2d 283, 1988 N.Y. LEXIS 1699 (N.Y. 1988).

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 tenured teacher can terminate a hearing by simply resigning, thereby effectively forfeiting tenure rights. 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).

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).

A teacher's federal suit for injunctive relief was barred by the Younger abstention doctrine where the teacher would have a full opportunity to raise the issues in his federal suit in the context of a pending state disciplinary proceeding. Levich v Liberty Cent. Sch. Dist., 258 F. Supp. 2d 339, 2003 U.S. Dist. LEXIS 7125 (S.D.N.Y. 2003).

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

Commissioner of Education had authority to promulgate regulations requiring a board of education to base its decision in teacher disciplinary proceeding solely on record before hearing panel, to set forth the results and factual basis for the determination and to forward hearing transcript to Commissioner. Hodgkins v Central School Dist., 48 A.D.2d 302, 368 N.Y.S.2d 891, 1975 N.Y. App. Div. LEXIS 9885 (N.Y. App. Div. 3d Dep't 1975), app. denied, 42 N.Y.2d 807, 1977 N.Y. LEXIS 3809 (N.Y. 1977).

Board of regents and commissioner of education had authority to provide additional regulations to fulfill due process requirements of federal three-judge decision pertaining to procedures for discipline of tenured teachers by the employing board of education. Hodgkins v Central School Dist., 78 Misc. 2d 91, 355 N.Y.S.2d 932, 1974 N.Y. Misc. LEXIS 1337 (N.Y. Sup. Ct. 1974).

Board of regents may not provide disciplinary rules which in their effect conflict with statutory sanctions. Hodgkins v Central School Dist., 78 Misc. 2d 91, 355 N.Y.S.2d 932, 1974 N.Y. Misc. LEXIS 1337 (N.Y. Sup. Ct. 1974).

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).

As a city department of education failed to provide a reason for its rejection of a teacher's excuse for his failure to file a timely request for a hearing under N.Y. Educ. Law § 3020-a(2)(d) after the teacher was notified of disciplinary charges, the arbitrary and capricious review under N.Y. C.P.L.R. 7803(3) could not be adequately conducted. Matter of Weill v New York City Dept. of Educ., 61 A.D.3d 407, 876 N.Y.S.2d 51, 2009 NY Slip Op 2534, 2009 N.Y. App. Div. LEXIS 2426 (N.Y. App. Div. 1st Dep't 2009).

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).

Dismissal of tenured secondary school teacher because of her lack of certification in social studies was unwarranted where board of education failed to meet its burden of proving impossibility of accommodating such teacher through schedule adjustments and teacher was entitled to remedy of reinstatement with back pay and associated rights and benefits. 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).

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

Preponderance of evidence, and not substantial evidence, is proper standard of proof to be applied by hearing panel in determining whether disciplinary charges brought pursuant to CLS Educ Law § 3020-a have been established. Martin v Ambach, 67 N.Y.2d 975, 502 N.Y.S.2d 991, 494 N.E.2d 96, 1986 N.Y. LEXIS 18593 (N.Y. 1986).

Evidentiary standards of "beyond a reasonable doubt" do not apply in disciplinary proceedings against teachers. Aronsky v Bd. of Educ., 75 N.Y.2d 997, 557 N.Y.S.2d 267, 556 N.E.2d 1074, 1990 N.Y. LEXIS 1093 (N.Y. 1990).

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

In hearing for discipline of teacher, evidence concerning incidents that occurred more than three years prior to bringing of the charges was admissible where it was not offered to prove that earlier incidents occurred but rather to demonstrate that teacher had notice that he was not to use physical force on students. 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).

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).

In disciplinary proceeding under CLS Educ § 3020-a, documentary evidence was admissible despite its hearsay character where there was no suggestion that documents were unreliable and where they did not bear directly on issue of whether teacher falsified exam answers as charged; fact that hearing panel accepted documents only on issue of scope of school district's investigation of teacher did not foreclose Commissioner of Education from considering them for truth of their contents. 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).

In disciplinary proceeding under CLS Educ § 3020-a, documentary evidence was admissible despite its hearsay character where there was no suggestion that documents were unreliable and where they did not bear directly on issue of whether teacher falsified exam answers as charged; fact that hearing panel accepted documents only on issue of scope of school district's investigation of teacher did not foreclose Commissioner of Education from considering them for truth of their contents. 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).

 30. -- -- --Prior acts

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

Technical rules of evidence were inapplicable to hearing before hearing panel on charges of incompetence filed against tenured teacher. 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).

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

Act of tenured teacher in engaging in fisticuffs with a belligerent student was such as to warrant dismissal of teacher for 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).

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).

Extensive testimony and exhibits established facts necessary to sustain specifications of insubordination and conduct unbecoming teacher stemming from teacher's failure to use established "committee system" of grading her students' Regents examination, and "communicat[ing] various answers to three different students" during examination. Earles v Pine Bush Cent. Sch. Dist., 224 A.D.2d 524, 638 N.Y.S.2d 163, 1996 N.Y. App. Div. LEXIS 1226 (N.Y. App. Div. 2d Dep't 1996).

Teacher's assault on superintendent of schools, in which teacher twice struck superintendent in face and then, when superintendent bent down to pick up his glasses, kicked him in buttocks, amply supported finding of conduct unbecoming teacher. Healy v Clifton-Fine Cent. Sch. Dist., 240 A.D.2d 892, 658 N.Y.S.2d 740, 1997 N.Y. App. Div. LEXIS 6711 (N.Y. App. Div. 3d Dep't 1997).

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 entitled to annulment of determination of disciplinary hearing panel, restoration to her tenured position, and new hearing with regard to disciplinary matter where Board of Education had agreed to pay panel member additional sum to serve on panel in contravention of CLS Educ § 3020-a(3)(b) and (c), which sets lower sum as compensation and bars from service on panel anyone employed by board; statute should be strictly enforced due to its mandatory language and detailed scheme for protection of tenured employee facing discipline.Syquia v Board of Educ. of Harpursville Cent. School Dist., 80 N.Y.2d 531, 591 N.Y.S.2d 996, 606 N.E.2d 1387, 1992 N.Y. LEXIS 4230 (N.Y. 1992).

Court of Appeals would not affirm determination of disciplinary hearing panel even if substantial evidence supported determination where Board of Education which convened panel made improper payment to panel member in contravention of CLS Educ § 3020-a(3)(b) and (c) which, in effect, rendered member ineligible to serve; to employ substantial evidence test would be to give validity to record clouded by board's unlawful act and would leave petitioner (who faced charges before board) with inadequate remedy. Syquia v Board of Educ. of Harpursville Cent. School Dist., 80 N.Y.2d 531, 591 N.Y.S.2d 996, 606 N.E.2d 1387, 1992 N.Y. LEXIS 4230 (N.Y. 1992).

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

Board of education which terminated tenured teacher's employment was not bound by finding of hearing panel that no evidence of misconduct was presented which directly affected efficiency of teacher's role as a counselor. 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).

Findings and recommendations of hearing panel are not conclusive upon school board but its report is part of record and entitled to some weight in determining whether substantial evidence exists in light of record as a whole. 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).

School board was bound by evidence produced at hearing on matter of disciplining teacher, but not by findings and recommendations of the panel. 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).

Mere fact that panel recommended that lesser penalty be given tenured teacher following finding that teacher was guilty of certain charges was not binding upon board of education. McKinney v Board of Education, 55 A.D.2d 934, 390 N.Y.S.2d 646, 1977 N.Y. App. Div. LEXIS 10200 (N.Y. App. Div. 2d Dep't 1977).

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).

Hearing panel was required to make written findings of fact, conclusion, and recommendation for disposition of disciplinary proceeding against teacher, and its findings were required to be in form to enable party aggrieved to understand its basis in order to permit intelligent challenge and adequate judicial review. Bader v Board of Educ., 216 A.D.2d 708, 627 N.Y.S.2d 858, 1995 N.Y. App. Div. LEXIS 6314 (N.Y. App. Div. 3d Dep't 1995).

Appellate Division would annul hearing panel's determination that teacher be suspended for one year without pay where panel failed to make any written findings of fact specifying basis for its conclusion, thus depriving teacher of ability to intelligently challenge determination and ensure adequate judicial review. Bader v Board of Educ., 216 A.D.2d 708, 627 N.Y.S.2d 858, 1995 N.Y. App. Div. LEXIS 6314 (N.Y. App. Div. 3d Dep't 1995).

The findings and recommendations of the hearing panel, referred to in Education Law § 3020-a, subdivision 4, are simply advisory in character and are not in any way conclusive upon the employing board. Le Tarte v Board of Education, 65 Misc. 2d 147, 316 N.Y.S.2d 781, 1970 N.Y. Misc. LEXIS 1013 (N.Y. Sup. Ct. 1970).

Negotiated settlement of teacher disciplinary proceeding brought under CLS Educ § 3020-a, in which some charges were sustained by teacher's express admission of guilt, was not exempt from disclosure under Freedom of Information Law since CLS Educ § 3020-a did not provide for privacy of hearing, and negotiated settlement was not protected as employment record. Anonymous v Board of Educ., 162 Misc. 2d 300, 616 N.Y.S.2d 867, 1994 N.Y. Misc. LEXIS 402 (N.Y. Sup. Ct. 1994).

Results of disciplinary proceeding under CLS Educ § 3020-a were matter of public record and did not fall within "employment history" exception of CLS Pub O § 89, and thus dissemination of such information to media did not implicate teacher's liberty interest. DeMichele v Greenburgh Cent. Sch. Dist. No. 7, 167 F.3d 784, 1999 U.S. App. LEXIS 2344 (2d Cir. N.Y. 1999).

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

Mere fact that panel recommended that lesser penalty be given tenured teacher following finding that teacher was guilty of certain charges was not binding upon board of education. McKinney v Board of Education, 55 A.D.2d 934, 390 N.Y.S.2d 646, 1977 N.Y. App. Div. LEXIS 10200 (N.Y. App. Div. 2d Dep't 1977).

It was improper to impose 2 penalties on school teacher found guilty of professional misconduct since hearing panel was required to choose only one penalty under CLS Educ § 3020-a; since teacher's suspension had already been effected, letter of reprimand would be lifted.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).

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).

Since the matter was remanded solely for a redetermination of the penalty under N.Y. C.P.L.R. art. 75 and N.Y. Educ. Law § 3020-a, a teacher's action to recover back pay and benefits should have been dismissed for failure to state a cause of action; the fact that a hearing officer erroneously believed that the officer was to make a redetermination of the charges was immaterial. Hershkowitz v New York City Dept. of Educ., 51 A.D.3d 560, 857 N.Y.S.2d 568, 2008 NY Slip Op 4742, 2008 N.Y. App. Div. LEXIS 4510 (N.Y. App. Div. 1st Dep't 2008).

Because an arbitrator recognized the seriousness of the allegations against a teacher and imposed a penalty that was not disproportionate to the charges and that was based in part on the teacher's decision to seek treatment and cease contact with the student, the trial court erred in granting the school district's N.Y. Educ. Law § 3020-a(5) petition. City School Dist. of the City of New York v McGraham, 75 A.D.3d 445, 905 N.Y.S.2d 86 (1st Dept 2010).

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

Hearing officer exceeded her authority by demoting a tenured assistant principal to being a teacher because N.Y. Educ. Law § 3020-a(4) did not provide for the penalty of demotion, neither did it provide for the remedy of demotion. Consequently, the matter of an appropriate penalty, based on the hearing officer's findings of guilt against the principal in the insufficient and at times improper performance of his duties, was to be determined by the hearing officer upon remand. 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).

Hearing officer's (HO) decision was vacated under N.Y. C.P.L.R. 7511 as the HO refused to impose an additional penalty for a teacher's conduct unbecoming a teacher under N.Y. Educ. Law § 3020-a based on an incorrect premise that a board of education had to prove that the teacher repeated the misconduct for which the teacher had been warned before the board's penalty request could be considered. Board of Educ. of the Dundee Cent. School Dist. v Coleman, 922 N.Y.S.2d 756, 2011 NY Slip Op 21157, 2011 N.Y. Misc. LEXIS 1999 (N.Y. Sup. Ct. 2011).

In a disciplinary action involving a tenured teacher, the hearing officer exceeded his statutory authority in directing the school district to pay for the teacher's health insurance benefits during the period of suspension because a contribution toward an employee's health insurance was a form of compensation and the hearing officer was limited to imposing a reprimand, a fine, suspension for a fixed time without pay, or dismissal. Matter of Board of Educ. of Dundee Cent. School Dist. (Coleman), 96 A.D.3d 1536, 947 N.Y.S.2d 707, 2012 NY Slip Op 4849, 2012 N.Y. App. Div. LEXIS 4832 (N.Y. App. Div. 4th Dep't 2012).

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).

Tenured teacher's involuntary transfer was not disciplinary in nature because a transfer to another school within a school district was not a disciplinary penalty within the meaning of N.Y. Educ. Law § 3020-a(4), which governed the discipline of tenured teachers, and N.Y. Civ. Serv. Law § 75 did not apply to teachers who enjoyed the benefits of tenure. Rutherford v Katonah-Lewisboro Sch. Dist., 670 F. Supp. 2d 230, 2009 U.S. Dist. LEXIS 105872 (S.D.N.Y. 2009).

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).

Fine of $ 2,500 was properly imposed on tenured elementary school teacher for her misconduct, despite lack of prior disciplinary record and claim that she was under stress of personal problems, where she violated school policy by requesting student to leave classroom on personal errand for her, and by 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).

Fine of $ 8,000, payable in installments over one year, was not excessive where tenured teacher was found guilty of 5 counts of failing to prepare proper lesson plans, his substandard performance remained unremedied despite full awareness of problem, and he had cavalier attitude about problem; formal lesson plans play vital role in proper functioning of classroom teacher and are indispensable to effective teaching. 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).

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

One-year suspension from teaching was not disproportionate penalty where tenured teacher was found guilty of using unnecessary physical force on disruptive elementary school student by pushing student against chalkboard; commissioner properly took into account teacher's prior conviction on charges of using unnecessary physical force on student, and properly gave little weight to fact that penalty recommended by hearing panel would have allowed teacher to remain in classroom. Cargill v Sobol, 165 A.D.2d 131, 565 N.Y.S.2d 902, 1991 N.Y. App. Div. LEXIS 1941 (N.Y. App. Div. 3d Dep't), app. denied, 78 N.Y.2d 854, 573 N.Y.S.2d 644, 578 N.E.2d 442, 1991 N.Y. LEXIS 1319 (N.Y. 1991).

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

Penalty of 2-year suspension without pay was appropriate sanction for insubordination and conduct unbecoming teacher stemming from teacher's failure to use established "committee system" of grading her students' Regents examination, and "communicat[ing] various answers to three different students" during examination. Earles v Pine Bush Cent. Sch. Dist., 224 A.D.2d 524, 638 N.Y.S.2d 163, 1996 N.Y. App. Div. LEXIS 1226 (N.Y. App. Div. 2d Dep't 1996).

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

Two-year suspension of a teacher who had an inappropriate relationship with a student was insufficient as it did nothing to protect other students from the teacher. As the teacher showed no remorse regarding the relationship and as he exhibited an arrogant insensitivity regarding the effect his actions had on the student and her family, a sanction that would protect other students from him was required. Matter of Binghamton City School Dist. v Peacock, 46 A.D.3d 1042, 848 N.Y.S.2d 382, 2007 NY Slip Op 9838, 2007 N.Y. App. Div. LEXIS 12643 (N.Y. App. Div. 3d Dep't 2007).

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

School board's decision dismissing teacher for insubordination did not properly set forth reasons and factual basis for determination, simply stating conclusory observations in arriving at finding of guilt. 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).

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

Record replete with evidence of inefficiency, lack of interest and lack of cooperation on part of tenured teacher sustained dismissal as against contention that severity of penalty was disproportionate to conduct. 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).

Penalty of dismissal of tenured teacher was not excessive where evidence supported findings of guilt on 53 charges concerning, inter alia, failure to prepare and grade examinations and manipulation of test scores, as well as finding that teacher might repeat such conduct if permitted to return. Carlan v Board of Education, 128 A.D.2d 706, 513 N.Y.S.2d 202, 1987 N.Y. App. Div. LEXIS 44391 (N.Y. App. Div. 2d Dep't 1987).

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

Penalty of dismissal was not disproportionate to teacher's offenses where teacher's misconduct in using excessive physical force on students and in using inappropriate and profane language in presence of pupils was persistent course of conduct in defiance of clear and repeated warnings. 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).

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).

Tenured elementary school teacher was properly terminated on being found guilty as to specification charging that "[d]espite prior warnings not to engage in the use of force upon students...in classroom 5-107, [teacher] struck student...causing injury to his eye." Newman v Sobol, 232 A.D.2d 828, 649 N.Y.S.2d 67, 1996 N.Y. App. Div. LEXIS 10530 (N.Y. App. Div. 3d Dep't 1996).

Penalty of termination was not excessive, because terminated teacher's conduct was totally egregious and completely antithetical to that expected of teacher, where he twice struck superintendent in face and then, when superintendent bent down to pick up his glasses, kicked him in buttocks. Healy v Clifton-Fine Cent. Sch. Dist., 240 A.D.2d 892, 658 N.Y.S.2d 740, 1997 N.Y. App. Div. LEXIS 6711 (N.Y. App. Div. 3d Dep't 1997).

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 of a tenured teacher for incompetency and insubordination was justified where incompetency was shown by evidence he was a poor teacher who failed to improve despite the extensive aid available to him, and insubordination was shown by his failure to deliver legible class plans and maintain and correct students' work as directed by his superiors. Clarke v Board of Education, 105 A.D.2d 893, 482 N.Y.S.2d 80, 1984 N.Y. App. Div. LEXIS 21015 (N.Y. App. Div. 3d Dep't 1984), app. denied, 64 N.Y.2d 1015, 489 N.Y.S.2d 65, 1985 N.Y. LEXIS 16700 (N.Y. 1985).

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 not excessive where school employee persistently failed to appear for physical examination as directed by board of education and frequently absented himself from his workplace without authorization. Elliot v Board of Education, 134 A.D.2d 233, 520 N.Y.S.2d 578, 1987 N.Y. App. Div. LEXIS 50428 (N.Y. App. Div. 2d Dep't 1987).

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).

Terminated teaching assistant was properly ordered reinstated, because she acquired tenure by estoppel, where she continued to be employed as full-time teaching assistant in area of special education, with knowledge of school board, beyond required 3-year probationary period.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).

Supreme Court, Appellate Division, could not presume that school board would act in an unconstitutional manner in handling proceedings on charge of teacher's incompetency. Soucy v Board of Education, 45 A.D.2d 808, 357 N.Y.S.2d 59, 1974 N.Y. App. Div. LEXIS 4585 (N.Y. App. Div. 3d Dep't 1974).

Where tenured teacher was awarded full pay for period between suspension and final determination of charges following hearing, contention that suspension without pay violated due process was moot. Polskin v Board of Education, 49 A.D.2d 968, 373 N.Y.S.2d 692, 1975 N.Y. App. Div. LEXIS 11274 (N.Y. App. Div. 3d Dep't 1975).

Discharged teacher's claim that the board of education, in pressing charges against her, failed to follow the procedure mandated by the education law could not be relitigated in the Appellate Division, after said claim had been previously raised and determined by the Appellate Division adversely to petitioner. 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).

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).

Pursuant to N.Y. Educ. Law §§ 3020-a(4), 2590-j(7), a school district had authority to petition, and timely petitioned, to vacate a hearing officer's determination allowing a teacher to administer a student drug program after the teacher had pleaded guilty to attempted criminal possession of a controlled substance. City Sch. Dist. of N.Y. v Campbell, 20 A.D.3d 313, 798 N.Y.S.2d 54 (1st Dept 2005).

Holding in Kinsella v Board of Education (1974, DC NY) 378 F Supp 54 would be applied retroactively in action in which teacher claimed damages for termination of services under Education L § 3020-a, which he contended to be unconstitutional. Kelly v Board of Education, 435 F. Supp. 904, 1977 U.S. Dist. LEXIS 14397 (W.D.N.Y. 1977).

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).

Tenured teacher who was discharged for incompetence was not required to enforce in a separate action or proceeding her right to compensation pending the final determination of the charges; rather, she could assert such right in her Article 78 proceeding to review and annul the board of education's determination. 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).

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).

Hearing panel's decision to dismiss certain charges against teacher before hearing had been completed was not "final and binding" until conclusion of entire hearing process under CLS Educ § 3020-a. 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).

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).

Court properly dismissed Article 78 petition challenging respondent school district's failure to accept petitioner's untimely demand for hearing under CLS Educ § 3020-a, where petitioner failed to proffer any evidence that he in fact requested permission to file late demand for hearing, or to rebut respondent's sworn assertions that no such request was ever made. Gagnon v Wappingers Cent. Sch. Dist. Bd. of Educ., 268 A.D.2d 472, 701 N.Y.S.2d 912, 2000 N.Y. App. Div. LEXIS 555 (N.Y. App. Div. 2d Dep't 2000).

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

Where tenured kindergarten teacher instead of requesting a formal hearing on charges of incompetence commenced proceeding seeking, in effect, to preclude board of education from proceeding to assess teacher's competency, teacher was not entitled to requested relief. Soucy v Board of Education, 45 A.D.2d 808, 357 N.Y.S.2d 59, 1974 N.Y. App. Div. LEXIS 4585 (N.Y. App. Div. 3d Dep't 1974).

Notwithstanding the absence of any allegation or proof that high school guidance counselor's consensual sexual exploits with a former pupil in the privacy of her home were the continuation or culmination of an association commenced or an influence exercised while he and the young lady maintained the relationship of teacher and pupil, Board of Education would not be enjoined from prosecuting or taking any other action against the guidance counselor with respect to that charge. 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).

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).

Writ of prohibition was proper procedural remedy for tenured teacher to assert claim that community superintendent's finding of probable cause to prefer disciplinary charges against her was jurisdictionally defective. Garzilli v Mills, 250 A.D.2d 131, 681 N.Y.S.2d 176, 1998 N.Y. App. Div. LEXIS 12982 (N.Y. App. Div. 3d Dep't 1998).

 64. -- --Time limitations

Teacher who brought Article 78 proceeding within four months of his removal from the payroll but not within four months of the annulment of provisional certificate could challenge his removal from the payroll without a hearing, but challenge to annulment of his certificate was time barred. 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).

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).

Record established that tenured teacher had, at most, stepped in to stop fight between two second grade students and did not support board of education's finding that teacher was guilty of conduct unbecoming teacher, insubordination, or neglect of duty. Tarbox v Greenburgh Cent. School Dist., 50 A.D.2d 607, 375 N.Y.S.2d 610, 1975 N.Y. App. Div. LEXIS 12396 (N.Y. App. Div. 2d Dep't 1975).

It was within competence and authority of school board to decide whether tenured teacher's conduct in copying and distributing list of epithets to a few members of the faculty was improper under circumstances. 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).

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).

Court improperly vacated hearing officer's determination, which sustained charges of neglect and incompetence against tenured teacher, where hearing evidence supported conclusion that teacher's absences disrupted educational process and adversely affected her students, and teacher did not show any basis for vacating determination under CLS CPLR § 7511. Fischer v Smithtown Cent. Sch. Dist., 262 A.D.2d 560, 691 N.Y.S.2d 341, 1999 N.Y. App. Div. LEXIS 7036 (N.Y. App. Div. 2d Dep't 1999).

In view of the degree of deference accorded an arbitrator in matters of credibility, the supreme court properly accepted an arbitrator's credibility determinations, even though the evidence was conflicting and room for choice existed. 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).

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).

Pursuant to N.Y. C.P.L.R. § 7511 and N.Y. Educ. Law § 3020-a(5), a trial court improperly vacated certain determinations of misconduct by a tenured teacher which resulted in his dismissal because although it found some of the teacher's statements containing sexual innuendo contextually inoffensive, the record was clear that the statements were made. Lackow v Department of Educ. (or "Board") of the City of New York, 51 A.D.3d 563, 859 N.Y.S.2d 52, 2008 NY Slip Op 4744, 2008 N.Y. App. Div. LEXIS 4527 (N.Y. App. Div. 1st Dep't 2008).

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

Finding of school board that specifications against tenured teacher in respect to physical contacts with students constituted insubordination and, as such, cause for dismissal was supported by substantial evidence. 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).

Finding of school board that incident wherein tenured teacher caught a student by the arm and kept the student from pulling away constituted either an act of hitting or striking student or an act of insubordination and, as such, was cause for dismissal was supported by substantial evidence indicating that student had disobeyed an instruction of teacher and was trying to escape detention when teacher apprehended him. 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).

Act of teacher in chasing and physically restraining a student who was apparently seeking to avoid detention constituted misconduct warranting dismissal where record disclosed facts which reasonably inferred that chase or apprehension was other than a duty of 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).

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).

School board within realm of fairness and rational education policy could conclude that teacher had used unreasonable and excessive force even if students were not physically injured, where "hands off" instructions to teacher clearly required more from him than merely refraining from injuring students. 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).

No basis existed to overrule education commissioner's determination that physical education teacher was guilty of insubordination, where testimony revealed that, after being warned 4 times not to touch students, he continued to do so. 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).

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

Failure of tenured teacher to prepare weekly or daily lesson plans could not be utilized as a basis for action of school board in dismissing teacher for insubordination where teacher's failure in that regard was not encompassed within charges made against him and teacher had otherwise complied with order of principal with regard to preparation of permanent lesson plans. 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).

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

Unpublished decision: Because a teacher had presented her discrimination theories at a hearing under N.Y. Educ. Law § 3020-a, arguing that her supervisors' criticisms were pretexts for discrimination, and the hearing officer had found that the teacher was disciplined because of excessive absenteeism, poor teaching, and failure to improve, that finding was binding on the courts. Mazur v New York City Dep't of Educ., 621 Fed. Appx. 88, 2015 U.S. App. LEXIS 19383 (2d Cir. N.Y. 2015).Agency Opinions

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:

UFT wins observation conferences grievance

LINK

BY DOROTHY CALLACI | OCTOBER 6, 2016 NEW YORK TEACHER ISSUE

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