Helen Winston Case (1985) And the Issue of Pension Forfeiture, Procedural Rights, and Disciplinary Charges

759 F.2d 242: Helen Winston, Harry Van Gorder and Natalie Vernon,plaintiffs-appellees-cross-appellants, v. the City of New York, New York City Teachers, Retirementsystem, Board of Education of the City School District Ofthe City of New York, Frank J. Macchiarola, As Chancellor Ofthe City School District of the City of New York, Board Ofeducation of Community School District 3, Gordon M. Ambach,as Commissioner of the New York State Department Ofeducation, Defendants,the City of New York, New York City Teachers' Retirementsystem, Board of Education of the City School District Ofthe City of New York, Frank J. Macchiarola, As Chancellor Ofthe City School District of the City of New York, Board Ofeducation of Community School District 3,defendants-appellants-cross-appellees

United States Court of Appeals, Second Circuit. - 759 F.2d 242

Argued Sept. 19, 1984.Decided April 5, 1985

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J. Christopher Meagher, New York City (Stephen Mendelsohn, James R. Sandner, New York City, of counsel), for plaintiffs-appellees-cross-appellants.

Edward F.X. Hart, New York City (Larry A. Sonnenshein, Antonia Levine, Frederick A.O. Schwarz, Jr., New York City, of counsel), for defendants-appellants-cross-appellees.

Before VAN GRAAFEILAND and CARDAMONE, Circuit Judges and MacMAHON, District Judge.*

CARDAMONE, Circuit Judge:

1

The main issue on this appeal is whether New York City public school teachers have a property interest in their pension rights protected under the due process clause of the 14th Amendment to the United States Constitution. Plaintiffs challenge a provision of the New York City Administrative Code, which provides that public school teachers dismissed for cause automatically forfeit their right to City-funded retirement benefits. A second issue is whether this threat of pension loss unconstitutionally chills the teachers' rights to a hearing over the reasons for their dismissal. Under the present statutory scheme, teachers can either put their pensions at risk in an attempt to keep their jobs and vindicate their reputations, or they can resign and be presumed guilty of the charges made against them.

2

* Plaintiffs, two present teachers and one former teacher in the New York City school system, sought declaratory and injunctive relief pursuant to 42 U.S.C. Sec. 1983 to invalidate Section B20-38.0(2) of the New York City Administrative Code insofar as it deprives a city teacher dismissed from service of city-funded pension benefits and the right to collect a retirement allowance. The United States District Court for the Eastern District of New York (Glasser, J.) granted summary judgment in plaintiffs' favor and enjoined the City defendants from implementing Sec. B20-38.0(2) on the grounds that the statute unconstitutionally chilled plaintiffs' rights to a hearing over loss of their employment. The court directed the City to reinstate plaintiff Vernon who had resigned, in order to afford her a predetermination hearing. 580 F.Supp. 1470 (E.D.N.Y.1984). But the district court judge rejected the teachers' argument that they have a property interest in their pensions prior to retirement and are therefore being deprived of property without due process of law. He also dismissed their equal protection claims, dismissing one on the merits and finding the second claim better addressed in the analysis of whether plaintiffs' rights to a predismissal hearing are "chilled" by the Code provision. City defendants appeal, and plaintiffs cross-appeal from the trial court's rejection of the several other constitutional grounds upon which relief was sought.

3

We agree with the holding that the forfeiture provision in the Code unconstitutionally chills the exercise of teachers' due process rights to a predismissal hearing. We further conclude that under New York State's Constitution teachers have a property interest in their contractual right to a pension upon fulfilling the statutory conditions. This property interest, derived from the State Constitution, is protected by the due process clause of the 14th Amendment. Here, the forfeiture provision violates the teachers' due process rights because it fails to provide for a separate determination of whether a dismissed teacher has engaged in misconduct warranting pension forfeiture.

4

Tenured public school teachers in New York cannot be dismissed except for cause following a hearing under New York Education Law Sec. 3020-a. Under the challenged provision, section B20-38.0(2), the City repays a dismissed teacher's own contributions to the Teacher's Retirement System,¹ but the teacher forfeits the contributions made by the City and School Board. Although a teacher may resign while under charges and still receive pension benefits, he is subject to a presumption of guilt that is used to deprive him of licensure and re-employment rights. The grounds for charges against tenured teachers that, if sustained, may lead to dismissal are very broad. The City dismisses some for serious misconduct, such as sexual molestation, but it dismisses many for reasons that would seem not to involve misconduct, such as inefficiency or inability to maintain discipline. The charges against the plaintiffs in this case are typical of the charges brought.

5

The school board charged plaintiff Helen Winston, a second grade teacher for 23 years, with incompetency and inefficiency based on allegations that she failed to plan and organize classroom activity properly, failed to maintain control of students in her class, and was absent for a total of 12 days during the school year. When plaintiffs moved for summary judgment, she was awaiting a decision by a section 3020-a hearing panel. The school board similarly charged plaintiff Harry Van Gorder, a high school biology teacher for 25 years, with incompetency and inefficiency based on allegations that he used ineffective teaching methods, had poor classroom control, used class time unproductively, taught lessons in an inappropriate sequence, planned class time poorly, and generally failed to provide proper instruction to his students. At the time of the summary judgment motion, Van Gorder was also awaiting a decision. Finally, the school board charged plaintiff Natalie Vernon, a special education teacher for 27 years, with recklessly injuring a student in her class. After a hearing, the panel found her innocent. The defendant Board of Education appealed the decision to the State Commissioner of Education, who, under the statute, can make an independent determination of just cause for discharge. Before the Commissioner heard the appeal, plaintiff Vernon submitted her resignation while protesting her innocence. The New York State Unemployment Board later found that she had resigned to protect her pension rights from the vicissitudes of litigation. Winston, Van Gorder and Vernon each have a present value of approximately $150,000 in pension reserves subject to forfeiture.

6

II

7

The automatic penalty of section B20-38.0(2) places an unconstitutional burden on a teacher's right to a hearing. Even assuming that the teachers have no property interest in their pension rights, the forfeiture provision chills the teachers' procedural due process right to a hearing over the reasons for their dismissal. As tenured public school teachers, plaintiffs have constitutionally protected property interests in their continued employment and in their right to a predismissal hearing under Education Law Sec. 3020. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Clearly, parties have the "right to contest the validity of a legislative or administrative order affecting [their] affairs without necessarily having to face ruinous penalties if the suit is lost." See Brown & Williamson Tobacco Corp. v. Engman,527 F.2d 1115, 1119 (2d Cir.1975), cert. denied, 426 U.S. 911, 96 S.Ct. 2237, 48 L.Ed.2d 837 (1976).

8

The City relies heavily on Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), in arguing that the choice that teachers must make between resigning to keep their pensions and jeopardizing those pensions by defending against the charges is not an unconstitutional burden on a fundamental right. In Brady the Supreme Court upheld a defendant's guilty plea despite his contention that his plea was prompted by his fear of receiving the death penalty should he exercise his right to trial by jury. In so holding, the Court limited its previous decision in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), in which it had invalidated a provision of the federal kidnapping law that permitted the death penalty only in cases where the defendant had elected a jury trial. The Court emphasized in Brady that it had not held in Jackson that all pleas of guilty encouraged by the fear of a possible death sentence were involuntary or that such pleas were invalid whether involuntary or not. Brady, 397 U.S. at 747, 90 S.Ct. at 1468. The Brady court explained that the holding in Jackson resulted instead from the finding that "the legitimate goal of limiting the death penalty to cases in which a jury recommends it could be achieved without penalizing those defendants who plead not guilty and elect a jury trial, so that the death penalty provision " 'needlessly penalize[d] the assertion of a constitutional right.' " Id. at 746, 90 S.Ct. at 1467, quoting Jackson, 390 U.S. at 583, 88 S.Ct. at 1217 (emphasis added). We agree with the able judge below that these cases stand for the proposition that we must balance the need for the challenged statute against its chilling effect on the exercise of the parties' constitutional rights.2

9

III

10

Turning first to the need for the forfeiture scheme, the City concedes the importance of economic security in old age, but contends that the State legislature has a legitimate interest in deeming those whose conduct warrants discharge--regardless of whether the grounds constitute misconduct--as undeserving of a pension. It is unnecessary to address whether this is a compelling interest because, as the district judge points out, the statute does not operate to further such an interest. Under the present scheme a teacher who sexually molests a child may resign and receive a pension, yet a teacher forfeits his pension after a quarter-century of faithful and competent service if a hearing panel finds that he can no longer maintain class discipline. The injustice of this is plain. All the guilty teachers can resign, take their money and run. Those believing themselves innocent of the charges must stake their economic future on a panel decision. Clearly, the scheme does not further the asserted state interest, much less a compelling one. Thus, the scheme's operation itself refutes the City's claim that the burden on a teacher's right to a hearing is justified.

11

Unquestionably, the scheme has a chilling effect. The City does not dispute that Vernon, after being exonerated at the hearing level and believing herself innocent, nonetheless resigned to protect herself from the vicissitudes of litigation on appeal, thereby casting herself falsely in the light of one condemned. See Matter of Marland v. Ambach, 79 A.D.2d 48, 50, 436 N.Y.S.2d 360 (3rd Dep't 1981), aff'd, 59 N.Y.2d 711, 463 N.Y.S.2d 422, 450 N.E.2d 228 (1983) (finding it "obvious" that a retirement made in the face of pension loss is involuntary and made under duress). The Brady majority emphasized that it "would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves." Brady, 397 U.S. at 758, 90 S.Ct. at 1474. The difference in the reliability of the admissions of guilt of criminal defendants and of teachers facing discharge hearings is no doubt in part due to the difference between the standards of proof. Criminal defendants must be found guilty beyond a reasonable doubt; charges against teachers merely have to be proved by a preponderance of the credible evidence. A teacher's stakes on such a "bet" are so high, that given these poor odds, the City has effectively eliminated that teacher's access to a forum to vindicate his or her innocence. See Ex parte Young, 209 U.S. 123, 147, 28 S.Ct. 441, 448, 52 L.Ed.2d 714 (1908).

12

The City must therefore redraft the offending provision so as either to eliminate or acceptably minimize the chilling effect. This could be accomplished by eliminating the choice of resigning and retaining the pension. Alternatively, it could be acceptably minimized were the hearing panel empowered to make a separate determination of whether the reasons for discharge warranted forfeiture.³ For the reasons discussed below a separate determination that a teacher's conduct warrants forfeiture of his or her pension is constitutionally compelled.

13

IV

14

Plaintiffs' claim that the forfeiture provision violates their due process rights is premised on their assertion that they have a property interest. The district court judge rejected that premise, finding that a terminated employee has no legal entitlement under State law to a pension and that, therefore, plaintiffs' pension rights were not subject to due process protection. We disagree. Although plaintiffs do not have an entitlement to their pensions as such, they do have a contractual right to a pension under the State Constitution upon fulfilling the statutory conditions, and this contractual right is a property interest under State law. In light of this property interest, the State may not arbitrarily condition the right of teachers to receive a pension without running afoul of the 14th Amendment.

15

We begin by recognizing that property interests "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Board of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. at 2709. Hence, we look to state law to determine whether a property interest exists, recognizing that a "property interest in employment can, of course, be created by ordinance, or by an implied contract." Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976) (footnote omitted); Goetz v. Windsor Central School District, 698 F.2d 606, 608 (2d Cir.1983). Once a state creates a property interest it may not later say that the interest does not exist, because by then federal protections will have attached. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 447-48 (2d Cir.1980). These state property rights have been taken, so to speak, under the wing of the 14th Amendment's protection, and safely shielded there from diminishment or infringement. Accordingly, the creation of a property interest is found by reference to state law, but once found its sufficiency as protected property in the constitutional sense is decided by federal standards. We look first therefore to state law.

16

The statutory scheme places two conditions on teachers' pension benefits: 15 years of service and retirement or resignation.⁴ The City contends that these conditions are conditions precedent, and until a teacher satisfies these conditions, any property interest in the pension remains inchoate. Relying on Matter of Eberle v. LaGuardia, 285 N.Y. 247, 33 N.E.2d 692 (1941), the district judge agreed with the City that an individual's pension rights do not vest until he satisfies all of the stated conditions, including retirement or resignation. See also Robbins v. Police Pension Fund, 321 F.Supp. 93 (S.D.N.Y.1970) (police officer's pension rights did not vest because he failed to meet a statutory requirement that he be a member of the police department without termination or forfeiture of office at the time he applied for pension). Eberle involved a claim of entitlement to a pension by a discharged civil servant who had been dismissed upon a finding that he was guilty of misconduct. He argued that "the deductions from his salary and the expected benefits of the retirement plan constituted a part of his compensation during his tenure of office and that to deprive him of such benefits now would deprive him of compensation which has already been earned." 285 N.Y. at 253, 33 N.E.2d 692. Rejecting that argument, the New York Court of Appeals held that while the Code granted members of the City certain "contractual" or "quasi-contractual" rights, only when the statutory conditions for retirement were met did those rights vest. 285 N.Y. at 251, 33 N.E.2d 692. As Eberle was removed from City service before his retirement became effective, the court found that the teacher had not met the statutory conditions and had no vested right to a pension. He was not deprived of compensation already earned, the court explained, because the statute gave him no right to a pension. See id.

17

The City urges that the teachers' pension rights are created and defined by the Administrative Code provisions, as construed in Eberle. But Eberle no longer governs this question. Section 7 of article V of the State Constitution (the effective date of which was postponed until July 1, 1940) provides that "membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be impaired." N.Y. Const. art. V, Sec. 7. The Constitutional Convention specifically rejected a proposal that "a city be able to [provide] by statute or local law in force at the time of the commencement of such membership that the system in such city shall not be contractual in character." Journal of the Constitutional Convention of the State of New York 425 (1938). See Annot., 52 A.L.R.2d 437, 467-70 (1957) (discussing effect of the amendment and characterizing Eberle as among cases "of historical interest").

18

As the New York Court of Appeals explained in Birnbaum v. Teachers Retirement Systems, 5 N.Y.2d 1, 176 N.Y.S.2d 984, 152 N.E.2d 241 (1958), the purpose of section 7 was "to fix the right of the employee at the time he became a member of the system" and to "prohibit their diminution or impairment prior to retirement." Id. at 9, 176 N.Y.S.2d 984, 152 N.E.2d 241 (emphasis in original). The district court correctly noted that since the provision challenged here existed prior to the constitutional amendment it was not affected by it. It also correctly noted that as the provision was in effect at the time these teachers took their jobs there could be no impairment due to unsettled expectations, which was the purpose of the amendment. But these points lead only to a conclusion that the challenged provision does not violate the no-impairment clause of the State Constitution. They do not address the question of whether the constitutional amendment, as interpreted by Birnbaum, established that teachers have a property interest in their contractual right to a pension prior to their retirement. The opinion below glosses over the distinction between nonimpairment of settled expectations and government regularity.

19

The Birnbaum court specifically rejected the proposition that pension rights remain inchoate prior to retirement. "[T]he theory that '[p]rior to retirement ... the member's rights are inchoate' " was the "very theory that the constitutional amendment was designed to set at rest." Birnbaum, 5 N.Y.2d at 8, 176 N.Y.S.2d 984, 152 N.E.2d 241. The Court of Appeals specifically held that pension rights "vest" at the time the employee became a member in the system. Id. at 9, 176 N.Y.S.2d 984, 152 N.E.2d 241. The court stated that the purpose of the amendment was to reject the view of an earlier case, relied on in Eberle, which had held that "down to the point where there has been compliance with all precedent conditions and the award has been or as of right should have been made," the member's interest remained "revocable at the will" of the State. Id. at 8, 176 N.Y.S.2d 984, 152 N.E.2d 241. It is not within our province to hold that New York's highest court meant something other than what it said when interpreting the New York State Constitution.

20

V

21

The view compelled by Birnbaum is that a property interest in contractual rights to a pension vests when a teacher becomes a member of the retirement system, subject to being divested if the two statutory conditions are not met. Viewed in this light, the statutory scheme operates the same as the one in Greene v. McGuire, 683 F.2d 32 (2d Cir.1982). In that case, we held that under the governing state law, New York City police officers lost whatever property interest they had in their continued employment upon being convicted of a felony. The provision was a "condition on the jobs" that was "as explicit as a clause in their contract." Id. at 35. "Once [the officers] were convicted--and the condition fulfilled--they lost their property interest." Id. Recognizing that the government may not deprive a person of a property interest arbitrarily, we specifically found that the provision was not arbitrary because an officer lost his job "only after a determination by an independent body that the officer had been guilty of serious misconduct." Id. Thus, we must now turn to the question of whether the forfeiture provision considered here arbitrarily denies teachers pensions that they have earned.

22

We must examine whether the challenged Code provision rationally advances the public policy served by pension forfeiture in light of what pensions represent under state law. Eberle 's rejection of the argument that the dismissed teacher was entitled to a pension because the pension represented deferred compensation was in keeping with the earlier view of pensions as a gratuity. Under this view, pensions were deemed akin to a gold watch given only to those in good standing. A long line of cases subsequent to Eberle have made it clear that pensions represent deferred compensation aimed at promoting long and faithful service. See, e.g., Birnbaum, 5 N.Y.2d at 9, 176 N.Y.S.2d 984, 152 N.E.2d 241; Matter of Gordon v. Monaghan, 309 N.Y. 336, 342, 130 N.E.2d 882 (1955). The clear import of article 5, section 7 of the State Constitution is to "give[ ] all employees ... a guarantee that no future legislative body can take away the benefits which he may be presumed to have fairly earned by reason of his previous service." Journal of the Constitutional Convention of the State of New York, Doc. No. 11 at 4 (1938) (emphasis added).

23

The only justifiable public policy served by pension forfeiture is the deterrence of misconduct in violation of the public trust. That is the rationale of Eberle and Robbins. In Eberle, which involved an unexplained shortage of funds, the New York Court of Appeals addressed itself to charges of "fault and delinquency." 285 N.Y. at 249, 33 N.E.2d 692. Similarly, the district court in Robbins feared that without the threat of the loss of pension rights those in positions of public trust would heedlessly engage in improper behavior. 321 F.Supp. at 98.

24

But because deterrence of misconduct is its purpose, the forfeiture provision is overbroad. Under the present scheme, teachers often lose their pension rights on grounds not constituting misconduct. A separate determination of whether the individual has in fact engaged in misconduct is necessary to save the scheme from unconstitutional arbitrariness. Absent a determination that an employee is guilty of misconduct, termination of his contractual right to a pension is a deprivation of property without procedural due process of law. We may not second-guess the hearing panel's definition of what constitutes misconduct, but we hold that the statute must grant it the authority to make such a determination.

25

Inevitably there will be questions about what process the City must provide in making its separate determination. We do not believe that a full trial-like hearing is necessary. An individual teacher is already entitled to participate personally in a hearing over the reasons for discharge. The determination of those grounds will necessarily overlap with the question of whether there was misconduct sufficient to warrant forfeiture of the individual's pension. A second trial-like hearing therefore is not needed because there is no indication that it would improve the accuracy of the determination. See Basciano v. Herkimer, 605 F.2d 605, 609-10 (2nd Cir.1978) (reasonably reliable determination of eligibility for accident disability retirement benefits can be made without trial-like hearing). The panel need merely be empowered at the hearing held to make a separate determination of whether the employee is guilty of misconduct warranting forfeiture.

26

As Professor Charles A. Reich explained in his classic article, The New Property:

27

No form of government largess is more personal or individual than an old age pension. No form is more clearly earned by the recipient.... No form is more obviously a compulsory substitute for private property; the tax on wage earner and employer might readily have gone to higher pay and higher private savings instead. No form is more relied on, and more often thought of as property. No form is more vital to the independence and dignity of the individual.

28

Reich, The New Property, 73 Yale L.J. 733, 769 (1964). Due process requires that this form of government largess can be denied New York State public employees only if the individual's service--even though long--has not been faithful.

29

VI

30

In light of this conclusion we find it unnecessary to address plaintiffs' claim that the forfeiture provision also violates their rights to equal protection of the law and substantive due process. Accordingly, the decision below is affirmed in part and reversed in part. We remand the case to the district court with a direction that it enter an order declaring plaintiffs' rights in accordance with this opinion.

31

VAN GRAAFEILAND, Circuit Judge, dissenting:

32

I agree with my colleagues that, in determining whether New York City school teachers have a property interest in their pension rights protected under the federal constitution, we must look to the law of New York State, particularly as that law is laid down by the New York Constitution. However, when it comes to interpreting and applying article V, section 7, the pertinent portion of the New York Constitution, my colleagues and I part company.

33

Section 7 provides that, after July 1, 1940, membership in a retirement system such as that of the New York City teachers "shall be a contractual relationship, the benefits of which shall not be diminished or impaired." The New York courts have made it crystal clear that, because of this constitutional provision, subsequent legislation may not diminish rights or vested interests possessed by a Retirement System member at the time he joined the System. See Robinson v. New York State Employees' Retirement System, 46 N.Y.2d 747, 749, 413 N.Y.S.2d 644, 386 N.E.2d 253 (1978) (mem.); Donner v. New York City Employees' Retirement System, 33 N.Y.2d 413, 416, 353 N.Y.S.2d 428, 308 N.E.2d 896 (1974); Matter of Ayman v. Teachers' Retirement Board of the City of New York, 9 N.Y.2d 119, 124-25, 211 N.Y.S.2d 198, 172 N.E.2d 571 (1961). These are contract rights which article I, section 10 of the United States Constitution requires this Court to protect, not to abrogate. See United States Trust Co. v. New Jersey, 431 U.S. 1, 14-32, 97 S.Ct. 1505, 1513-1523, 52 L.Ed.2d 92 (1977); Indiana ex rel Anderson v. Brand, Trustee, 303 U.S. 95, 100, 58 S.Ct. 443, 446, 82 L.Ed. 685 (1938).

34

One of the most firmly established rights possessed by each System member is the right to retire without giving up vested retirement benefits and without regard to whether charges against the member are pending. In Matter of Rogalin v. New York City Teachers' Retirement Board, 290 N.Y. 664, 49 N.E.2d 623 (1943), charges were preferred against Rogalin because of his alleged mismanagement of school funds, and he was suspended from his position as a high school principal. On the following day, Rogalin filed an application for retirement with the Teachers' Retirement Board. The Board, as do my colleagues, argued that a public official should not be permitted to retire as of right during the pendency of charges of misconduct against him which ultimately might result in conviction and dismissal. This argument was rejected by the trial court in an unreported decision, which was affirmed without opinion in the Appellate Division, 265 A.D. 801 (1942), and in the Court of Appeals, 290 N.Y. 664, 49 N.E.2d 623. The trial court stated that the wisdom of the challenged enactment was a matter of legislative and not of judicial concern, and continued:

35

Since the language and intent of the statute are clear, it must be followed and may not be the subject of judicial construction for the infusion therein of a preconceived ideal of public policy not actually expressed.

36

See also Matter of Pierne v. Valentine, 266 A.D. 70, 78, 42 N.Y.S.2d 404 (2d Dep't 1943), aff'd on this point, 291 N.Y. 333, 343-44, 52 N.Y.S.2d 890 (1943).

37

My colleagues' somewhat unjudicial remarks concerning presumptions of guilt and "guilty" teachers resigning, taking their money and running, are not very cogent grounds for depriving all System members of the contract right guaranteed them by both the State and federal constitutions to resign without giving up their vested retirement benefits. No teacher is "guilty" until, after proper hearing and judicial review, he is found guilty.

38

Equally unpersuasive is the majority's professed desire to relieve System members from having to decide whether to resign or face charges. Under the guise of protecting members from having to make a difficult decision, the majority would deprive all members of their constitutionally protected right to make a choice at all.

39

An equally important right possessed by all members of the Retirement System is that the means designed to assure their benefits should not be impaired and that the sources of funds for their benefits should be protected by insuring appropriate contributions and actuarially sound procedures. Sgaglione v. Levitt, 37 N.Y.2d 507, 511, 514, 375 N.Y.S.2d 79, 337 N.E.2d 592 (1975). Each member thus has the contractual right to insist that the assets of the System not be depleted by the making of unauthorized pension payments, a right possessed by every trust beneficiary under the common law, see Hoffa v. Fitzsimmons, 673 F.2d 1345, 1353 (D.C.Cir.1982).

40

It generally is presumed that contracting parties adopt the terms of their bargain in reliance on the law in effect at the time the agreement is reached and that such laws form a part of the contract just as though they were expressly incorporated in its terms. United States Trust Co. v. New Jersey, supra, 431 U.S. at 19-20 n. 17, 97 S.Ct. at 1516-1517 n. 17. Under section B20-38.0(2) of the Administrative Code, a member who is dismissed from service loses the right to collect any retirement allowance. Although the member's own contributions to the annuity part of the allowance are repaid him, the contributions of the City and the Board are forfeited. Sections 2573, 2590-j(7)(b), 3020, and 3020-a of the Education Law establish the grounds and procedures for dismissal of System members. All of these statutory provisions are part of the contract between the System and its members. This Court should not assume the role of a super-legislature by amending the statutes, and perforce the contractual rights, of the thousands of Retirement System's members who are not even parties to this litigation.

41

Agencies of the City of New York have fallen on hard times before, and it is not unreasonable to expect that this will occur again. Unauthorized pension payments to dismissed members have a deleterious effect on the System's solvency whatever the reason for the dismissal. It is simply wrong for this Court to order an amendment of the contract to which all System members are parties, so as to provide that any member dismissed from employment can continue to draw money from the pension funds unless the dismissal was for something bearing the vague label of "misconduct". See Giaccio v. Pennsylvania,382 U.S. 399, 404, 86 S.Ct. 518, 521, 15 L.Ed.2d 447 (1966); Soglin v. Kauffman, 418 F.2d 163, 167-68 (7th Cir.1969). As stated by then Justice Bergan in Gorman v. City of New York, 280 A.D. 39, 44-45, 110 N.Y.S.2d 711 (1st Dep't 1952), aff'd mem., 304 N.Y. 865, 109 N.Y.S.2d 881, appeal dismissed, 345 U.S. 962, 73 S.Ct. 950, 97 L.Ed. 1381 (1953), "the Constitution contemplates a public employment which validly continues until the right to be pensioned matures and it does not imply a restriction upon public authority to remove a member from a public position for valid cause, even though the right to a pension terminates with the removal." "Valid cause" is spelled out in sections 2573, 2590-j(7)(b), and 3020 of the Education Law. It is not synonymous with "misconduct".

42

My colleagues state quite correctly that Retirement System members have a contractual right to a pension "upon fulfilling the statutory conditions" and hold that "this contractual right is a property interest under State law." They then reject the very "statutory conditions" which define the limit and extent of the "property interest" they purport to recognize. Cf. Board of Regents v. Roth,408 U.S. 564, 577-78, 92 S.Ct. 2701, 2709-10, 33 L.Ed.2d 548 (1972). Under the guise of enforcing the procedural requirements of due process, the majority order an amendment of the substantive rights of the parties upon which the procedural requirements of due process are predicated. However, appellees have not established that they have been deprived of a right to substantive due process.

43

In Harrah Independent School District v. Martin, 440 U.S. 194, 99 S.Ct. 1062, 59 L.Ed.2d 248 (1979) (per curiam) a school board refused after a hearing to renew a tenured teacher's employment contract because she refused to comply with the board's requirement that she take five hours of continuing education courses over a three year period. The Court held that a claim of substantive due process under such circumstances would in no way resemble "the individual's freedom of choice with respect to certain basic matters of procreation, marriage, and family life." Id. at 198, 99 S.Ct. at 1064 (cases cited). The Court continued:

44

The School Board's rule is endowed with a presumption of legislative validity, and the burden is on respondent to show that there is no rational connection between the Board's action and its conceded interest in providing its students with competent, well-trained teachers.... Such a course of conduct on the part of a school board responsible for the public education of students within its jurisdiction, and employing teachers to perform the principal portion of that task, can scarcely be described as arbitrary. Respondent's claim of a denial of substantive due process under these circumstances is wholly untenable.

45

My colleagues' determination that there has been a denial of substantive due process in the instant case is equally untenable. In holding that the pension forfeiture provision is overbroad because its only purpose is the "deterrence of misconduct", my colleagues overlook the "presumption of legislative validity" referred to by the Harrah court and the express finding of reasonableness by the district court. 580 F.Supp. at 1476. They also disregard the indisputable interest that the New York Legislature has in providing New York City students with competent and well-trained teachers and in preserving the financial stability of the pension program covering over 55,000 New York City teachers. Indeed, the very reasoning my colleagues employ in arriving at their definition of statutory purpose will not withstand scrutiny. Starting with the unfounded and self-conceived premise that "[t]he only justifiable public policy served by pension forfeiture is the deterrence of misconduct," they leap a substantial gap in logic by concluding that "deterrence of misconduct is its purpose." (emphasis supplied). Their holding demonstrates, in sum, why "there is reason for concern lest the only limits to ... judicial intervention become the predelections of those who happen at the time to be [m]embers of this Court." Moore v. City of East Cleveland, 431 U.S. 494, 502, 97 S.Ct. 1932, 1937, 52 L.Ed.2d 531 (1977).

46

Under well-settled New York law, Retirement System members may be discharged for the reasons set forth in the Education Law and in accordance with the hearing procedures prescribed by that Law. There is nothing in New York law that entitles a System member to the continued payment of pension benefits by the State if that member was properly discharged for a valid cause, even though the discharge was not for "misconduct". See Green v. McGuire,683 F.2d 32, 37 (2d Cir.1982) (Oakes, J. concurring). The United States Constitution does not require that this Court put it there.

47

Because I find no merit in appellees' equal protection claims, I would reverse and dismiss the complaint.1

1

Section B20-38.0 provides in pertinent part:

Termination of membership; resignation, transfer or dismissal --Withdrawals from the retirement association shall be by resignation, by transfer, or by dismissal.

....

3

Contrary to the dissent's characterization of our holding, we do not hold that teachers should not be permitted to resign as of right during the pendency of charges. There will be no unconstitutional chilling if a separate determination of whether there has been misconduct warranting forfeiture is made, which, in any event, we find constitutionally compelled in Section III. Thus, there is no need or reason to eliminate the option of resigning and receiving a pension. In fact, we seriously question, but need not address whether eliminating the option would be allowed under Section 7 of article V of the State Constitution, N.Y. Const. art. V, Sec. 7

4

Section B20-44.2 provides in pertinent part:

Vested retirement rights --a. [A]ny contributor who has been a member of the retirement system and has had fifteen or more years of accredited service.... who discontinues service in the schools or colleges of the city other than by death or retirement or dismissal and who does not withdraw his accumulated deduction shall have a vested right to receive a deferred retirement allowance on attaining the age at which he would first be eligible had he remained in service.... Such member shall be known as a discontinued member.

New York City Administrative Code ch. 20, title B, Sec. B20-44.2.

 

From Betsy Combier: Here is the lower court decision:

WINSTON v. CITY OF NEW YORK No. 82 Civ. 1847.

580 F.Supp. 1470 (1984)

Helen WINSTON, Harry Van Gorder and Natalie Vernon, Plaintiffs,
v.
The CITY OF NEW YORK, New York City Teachers' Retirement System, Board of Education of the City School District of the City of New York, Frank J. Macciarola, as Chancellor of the City School District of the City of New York, Board of Education of Community School District 3, Gordon M. Abach, as Commissioner of Education of New York State Department of Education, Defendants.

United States District Court, E.D. New York.

February 29, 1984.

James R. Sandner, New York City, for plaintiffs; Richard E. Casagrande, Albany, N.Y., J. Christopher Meagher, New York City, of Counsel.

Antonia Levine, Corp. Counsel of City of New York, New York City, for City of New York.

Robert D. Stone, State Educ. Dept., Albany, Evelyn Tenenbaum, Asst. Atty. Gen. of N.Y., New York City, for state defendants.

MEMORANDUM AND ORDER

GLASSER, District Judge:

The plaintiffs in this suit are teachers presently or formerly employed by the defendant Board of Education of the City School District of the City of New York ("Board of Education"), or one of its component community school districts. They are challenging a provision of State law, codified in Section B20-38.0 of the NewYork City Administrative Code, that provides that New York public school teachers who are dismissed for cause are ineligible to receive City-funded retirement benefits. All parties to the action have moved for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, summary judgment is granted in plaintiffs' favor against the City defendants.¹

I. Background

A. Dismissal Procedures

Tenured public school teachers in New York cannot be dismissed from their teaching positions except for cause, after a hearing provided under New York Education Law § 3020-a. Either the teacher or the employing board of education may appeal a hearing panel's decision to an appropriate court or to the Commissioner of Education. N.Y.Educ.Law § 3020-a(5) (McKinney). Teachers such as plaintiff Winston, who serve in a community school district, are subject to removal proceedings by the community school board for any of the following reasons: unauthorized absence from duty or excessive lateness; neglect of duty; conduct unbecoming the teacher's position; incompetent or inefficient service; violation of state or city bylaws or regulations; or "[a]ny substantial cause that renders the employee unfit to perform his obligations properly." N.Y.Educ.Law §2590-j(7)(b) (McKinney). All other New York City teachers, including plaintiffs Van Gorder and Vernon, are subject to removal proceedings by the New York City Board of Education on a showing of cause. See N.Y.Educ.Law §§ 2573, 3020, & 3020-a (McKinney). Section 3020, which applies to all school districts in the state, provides that a teacher may be removed for "neglect of duty, incapacity to teach, immoral conduct,

[580 F.Supp. 1473]

or other reasons which, when appealed to the Commissioner of Education, shall be held by him sufficient cause for such dismissal."²

B. The Pension Scheme

In New York City, a teacher who retires from the public school system is eligible for a "retirement allowance" under the provisions of the New York City Teachers' Retirement System ("TRS"). See Administrative Code of the City of New York, Ch. 20, Title B, § B20-44.0. The retirement allowance consists of the accumulated deductions taken from the teacher's salary, which are placed in an annuity savings fund, plus a contribution from the City. Teachers who do not qualify for retirement, but who resign from the public school system after at least fifteen years of credited service, still have a "vested right" to receive a retirement allowance when they reach the age at which they would have been eligible to retire had they remained in service. § B20-44.2.³ However, the teachers who are dismissed prior to retirement do not qualify under § B20-44.2 and can only withdraw the amount of their accumulated deductions in the annuity savings fund.

C. Plaintiffs' Claims

Plaintiff Winston had been an elementary school teacher for twenty-one years, from 1959 to January 1981, at which time the Board of Education at Community School District 3 preferred charges against her pursuant to N.Y.Educ.Law § 2590-j(7)(b) (McKinney) for "neglect of duty," "incompetent and inefficient service," and "substantial cause that renders her unfit to perform properly her obligations to the service." These charges were based on allegations that on certain occasions during the period from September 30, 1980 to January 23, 1981, plaintiff Winston failed to plan and organize properly classroom activity and failed to maintain control of students in her class, and that she was absent a total of twelve days during the 1980-81 school year. Plaintiff Van Gorder was similarly charged by the Board of Education of the City School District of the City of New York with "incompetent and inefficient service," "conduct unbecoming his position and prejudicial to the good order, efficiency and discipline of the service," and "substantial cause that renders this employee unfit to properly perform his duties to the service," following twenty-four years of service as a high school teacher. These charges were based on allegations that at certain times during the period from September 1979 to June 1982, plaintiff Van Gorder used ineffective teaching methods, had poor classroom control, used class time unproductively, taught lessons in an inappropriate sequence, planned classwork poorly, and generally failed to provide

[580 F.Supp. 1474]

proper instruction to his pupils. Pending a hearing and determination on these charges, plaintiffs Winston and Van Gorder have been removed from their classroom posts and have been assigned to administrative duties.

Plaintiff Vernon was a special education teacher in the New York City school system for twenty-seven years, from February 1953 through September 1980. In May 1979, defendant Macchiarola, on behalf of the Board of Education of the City of New York, preferred charges against her for recklessly injuring a ten-year-old child in her special education class. Following a hearing demanded by Vernon, the hearing panel concluded that the Board of Education had failed to prove the charges against her. This ruling was appealed to defendant Ambach as Commissioner of Education of the State of New York, who, under the statute, can make an independent determination regardless of the hearing panel's decision. Pending this appeal, however, Vernon submitted her resignation and applied to the TRS for retirement benefits. She allegedly resigned to protect her pension rights since, under § B20-38.0(2), these rights are forfeited by dismissal prior to retirement, and she did not want to risk the possibility of an adverse determination by the Commissioner of Education.

Plaintiffs have challenged § B20-38.0(2) on the following constitutional grounds:

(1) By not providing dismissed teachers with an independent hearing to determine whether their pension benefits should be forfeited, the statute deprives plaintiffs of their procedural due process rights.

(2) The imposition of a forfeiture of pension rights for all dismissed teachers is arbitrary and irrational and thus deprives plaintiffs of their constitutionally protected interests in violation of their substantive due process rights.

(3) The forfeiture provision violates plaintiffs' equal protection rights by impermissibly discriminating (a) between those who exercise their rights to a hearing and those who resign prior to a hearing to avoid dismissal; and (b) between public school teachers outside New York City, who are not subject to the automatic forfeiture provision and City public school teachers, who automatically lose their pensions upon their dismissal.

(4) In denying pension benefits to those teachers who exercise their right to a hearing prior to dismissal and against whom an adverse determination is made, the provision unconstitutionally chills plaintiffs' procedural due process rights to a pre-dismissal hearing.

II. Plaintiffs' Invocation of Procedural Due Process To Protect Their Pension Rights

Plaintiffs' first claim—that the denial of an independent hearing on the forfeiture of their pension deprives them of procedural due process—is premised on their assertion that they have a constitutionally cognizable right to their pension benefits. Because I find this premise to be erroneous, this claim is rejected.

The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite.

Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972).

Property interests "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Id. at 577, 92 S.Ct. at 2709, quoted in Bishop v. Wood, 426 U.S. 341, 344 n. 7, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976). See also Greene v. McGuire, 683 F.2d 32, 34 (2d Cir.1982) (finding that convicted police officers automatically forfeited their property interests in their jobs under state law and thus were not entitled to a due process hearing on their petition for reinstatement). In the instant case, plaintiffs'

[580 F.Supp. 1475]

pension rights were created and defined by the TRS provisions as they appear in the Administrative Code. These provisions indicate that a right to a pension does not vest until all the stated conditions are met, including the teacher's retirement pursuant to §§ B20-41.0 & B20-44.2, or resignation pursuant to § B20-44.2. Moreover, the New York courts have held that dismissed public employees have no cognizable rights to a pension. See Robbins v. Police Pension Fund, 321 F.Supp. 93 (S.D.N.Y.1970) (police officer's pension rights do not vest where he failed to meet a statutory requirement that he be a member of the Police Department without termination or forfeiture of office at the time he applied for pension); Matter of Eberle v. LaGuardia, 285 N.Y. 247, 33 N.E.2d 692 (1941) (civil service employee's pension rights did not vest where employee applied for retirement before his dismissal but failed to fulfill all the statutory conditions for retirement).⁴ Therefore, plaintiffs, who have failed to meet the statutory conditions for the vesting of their pension rights, cannot assert a property right derived from state law that is entitled to procedural due process protection.

Plaintiffs next argue that even if their claim to pension benefits does not rise to the level of a property right, it nonetheless warrants procedural due process protections. In support of their contention they advance the following theories:

(1) Plaintiffs' interest constitutes a "benefit" or "privilege" that cannot arbitrarily be denied. See Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971); Flemming v. Nestor, 363 U.S. 603, 610-11, 80 S.Ct. 1367, 1372, 4 L.Ed.2d 1435 (1960);

(2) Property rights include the right to acquire property, see Lynch v. Household Finance Corp., 405 U.S. 538, 544, 92 S.Ct. 1113, 1118, 31 L.Ed.2d 424 (1972), and this encompasses plaintiffs' expectation of the vesting of their pension right;

(3) Since the New York courts have referred to pension benefits as "compensation for services previously rendered," Gordon v. Monaghan, 309 N.Y. 336, 342, 130 N.E.2d 882, 885 (1955), plaintiffs presently enjoy a right to pension benefits that can only be deemed forfeited for just cause, and pursuant to a due process inquiry;

(4) The enactment of the Employees' Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001-1381, which strictly prohibits the forfeiture of vested pension benefits in the private sector, evidences a national recognition of pension rights as property interests deserving of more substantial protection in cases of pension forfeiture.

All of those theories would necessitate an independent inquiry into the nature and scope of the expectation created by the TRS, which I find to be inappropriate in

[580 F.Supp. 1476]

light of the Supreme Court's comments in Bishop v. Wood, supra. In Bishop, a policeman claimed that since a city ordinance classified him as a "permanent employee," he had a constitutional right to a hearing prior to his dismissal. The court held, however, that because the city ordinance creating this expectation had been interpreted by lower federal courts as affording no rights to continued employment, due process considerations were not invoked. 426 U.S. at 345-46, 96 S.Ct. at 2078. In contrast to the contentions of the dissenters, see Id. at 350-55, 96 S.Ct. at 2080-82 (Brennan, J. dissenting); Id. at 361-62, 96 S.Ct. at 2085 (Blackmun, J. dissenting), the majority did not recognize the propriety of an independent federal law inquiry into the existence of a property interest. The existence or non-existence of a property interest was for the state to decide.⁵ It follows that in this case, where New York courts have held that a public employee's interest in future pension benefits—be they characterized as property rights, privileges or mere expectancies—does not invoke due process rights, this Court cannot, consistently with Bishop, reinterpret the nature of this interest. See also Greene v. McGuire, supra, (evaluating property interests on basis of state court determination).⁶

Even were I to be inclined to inquire into the reasonableness with which the state and city defendants have created and conditioned the plaintiffs' pension interests, I would not deem this case to be the appropriate occasion for the invocation of due process protections. Contrary to the plaintiffs' assertions, I do not find the defendants' statutory conditions precedent to the vesting of pension benefits to be arbitrary or unreasonable. The statutory requirement is no less principled than the determination of the minimum number of years of employment required for vesting. Indeed, it was the defendants' determination to reduce the number of years required for vesting that precipitated plaintiffs' dilemma. Given the discretion that the State and City have in creating the pension privilege, their refusal to accord property right/due process status to this privilege does not appear unreasonable.

To the plaintiffs' claim that ERISA alters the nature of the pension rights, the simple answer is that ERISA's provisions do not govern public pension plans. No useful purpose would be served by speculating whether, in light of ERISA's enactment, states will expand or curtail the scope of pension rights.

For the foregoing reasons, I find that plaintiffs cannot successfully challenge the pension forfeiture provision on the ground that they have been deprived of procedural due process.

III. Plaintiffs' Substantive Due Process Rights

Plaintiffs have challenged the effect of the Administrative Code provisions upon pension rights as being irrational and thus violative of their substantive due process

[580 F.Supp. 1477]

rights. The following reasons have been advanced to support this claim: (1) the New York City Administrative Code deprives dismissed employees of their pension rights without an independent inquiry into the culpability of their conduct; (2) the Code creates a conclusive presumption that all dismissed teachers have been guilty of misconduct or have not rendered long and faithful service; (3) the Code's forfeiture provision punishes teachers for activity subsequent to—and therefore unrelated to—the satisfactory services performed incident to their pension rights; (4) the Code punishes the exercise of constitutional rights.

I note at the outset that plaintiffs lack standing to assert that the Code is unconstitutional for failing to require an inquiry into their culpability or for creating a presumption of culpability. While it may be true that under the Code teachers can be deprived of pension rights as a result of dismissals that were not prompted by culpable conduct—such as dismissals for mental or physical incapacity,⁷—the plaintiffs now before the Court are all the subjects of dismissal proceedings on charges that may arguably be regarded as culpable conduct. To permit the plaintiffs to assert the rights of those whose conduct is not even arguably culpable would violate "the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court." Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). See also McGowan v. Maryland, 366 U.S. 420, 429-30, 81 S.Ct. 1101, 1107, 6 L.Ed.2d 393 (1961) (constitutional rights are personal and may not be asserted vicariously).

The standing barrier aside, these two reasons, together with the third reason stated above—challenging the relevance of subsequent misconduct to pension entitlement —all rest on the misplaced premise that plaintiffs have a constitutionally cognizable property interest in their pension benefits. As apparently conceded in plaintiffs' brief, the Due Process Clause's rational basis test is only invoked where a protected liberty or property interest is implicated by a legislative classification or scheme. See Harrah Independent School District v. Martin, 440 U.S. 194, 197-98, 99 S.Ct. 1062, 1064, 59 L.Ed.2d 248 (1979); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974). For the reasons set forth in the preceding section, supra, I have found that no such interests are implicated in this case.⁸ Therefore, the Administrative Code provisions cannot be challenged for any of these reasons as a violation of substantive due process rights.

Plaintiffs' fourth reason—that the Code provisions are irrational for punishing the exercise of their constitutional rights to a hearing—cannot be disposed of as easily. Unlike the other asserted grounds, this claim invokes substantive due process considerations based upon plaintiffs' right to a hearing rather than upon their pension rights. As so framed, however, plaintiffs' claim becomes identical to the one discussed infra in Section V—namely, that their procedural due process rights are being chilled by virtue of the threatened deprivation of their pension rights. I will therefore discuss the rationality of the challenged Code provisions in that Section.

IV. Plaintiffs' Equal Protection Claims

Plaintiffs have framed two arguments in support of their equal protection claims: (1)

[580 F.Supp. 1478]

the defendants have unlawfully discriminated between New York City teachers, whose pension benefits are automatically forfeited upon dismissal, and New York State teachers outside the City, whose benefits are not conditioned on resignation or retirement in good standing; (2) the defendants have unlawfully discriminated between those choosing to resign without a hearing and those who exercise their right to a hearing. While one of these claims may merit constitutional scrutiny in other contexts, I find that neither is appropriately redressable under the Equal Protection Clause of the Fourteenth Amendment.

As to plaintiffs' first claim, there is simply no evidence to support the finding of an invidious or irrational classification. The retirement systems for State and City public school teachers differ in many respects besides the pension forfeiture provisions. As the defendants point out, the City retirement system is larger and more diverse than elsewhere in the State, and thus operates under different constraints. Given these circumstances, it would be incorrect to describe the City and State teachers as forming two similar classes that are being treated unequally. The State has simply pursued the permissible goal of providing its localities with different benefits according to their different needs. See San Antonio School District v. Rodriguez, 411 U.S. 1, 54 n. 110, 93 S.Ct. 1278, 1307, 36 L.Ed.2d 16 (1973).

Plaintiffs' second claim, although cast in terms of equal protection analysis, is better adjudicated by addressing the particular right upon which the allegedly unequal classification is being based—the right to a hearing before dismissal. Classifications are not unconstitutional per se under the equal protection clause. In this particular case, the merits of plaintiffs' equal protection claim will turn on this Court's evaluation of the procedural due process right at stake and the extent to which it is being impaired, which is the focus of Section V, infra. This evaluation will in turn determine the level of scrutiny with which this Court will review the challenged provision of the Administrative Code. No useful purpose will be served by an equal protection analysis. See Westen, The Empty Idea of Equality, 95 Harv.L. Rev. 537, 560-64 (1982) (criticizing the employment of the equal protection clause in right-to-travel cases), cited with approval in Greenawalt, How Empty Is the Idea of Equality? 83 Col.L.Rev. 1167, 1182 (1983).⁹ Whatever redress plaintiffs are entitled to under the equal protection clause¹⁰ will necessarily be subsumed under the procedural due process claim discussed in the section that follows.

V. The Chilling of Plaintiffs' Procedural Due Process Rights To A Pre-Dismissal Hearing

As a result of the Administrative Code's provisions relating to dismissal and pension rights, New York City teachers such as plaintiffs face the following dilemma: if they exercise their rights to a hearing prior to dismissal and do not prevail, they forfeit pension benefits that would vest if they chose instead to resign.

[580 F.Supp. 1479]

That the chilling of procedural due process rights has constitutional dimension was first indicated in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), where the Supreme Court invalidated on equal protection and due process grounds a state statute that imposed penalties of fines and imprisonment for the violation of laws establishing the maximum rates to be charged by railroad companies. The court reasoned that "[w]hen the penalties [are] ... so enormous ... as to intimidate [a party] from resorting to the courts to test the validity of the legislation, the result is the same as that the law in terms prohibited the company from seeking judicial construction of laws which deeply affect its rights." Id. at 147, 28 S.Ct. at 448. See also Brown and Williamson Tobacco v. Engman, 527 F.2d 1115 (2d Cir.1975) (reaffirming the "right to contest the validity of a legislative or administrative order affecting [a party's] affairs without necessarily having to face ruinous penalties if the suit is lost," Id. at 1119), cert. denied, 426 U.S. 911, 96 S.Ct. 2237, 48 L.Ed.2d 837.

Similar due process concerns have been expressed to protect a defendant's privilege against self-incrimination. In Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), the Supreme Court held that when a policeman was compelled to testify by the threat that otherwise he would be removed from office, the testimony that he gave could not be used against him in a subsequent criminal prosecution. The reasoning in Garrity was subsequently employed to overturn the dismissal of a policeman because he failed to relinquish his privilege against self-incrimination. See Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968). See also Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967) (invalidating on Fifth Amendment grounds, the disbarment of a lawyer solely for his refusal to testify at a disciplinary proceeding).

Although these cases evidence the Supreme Court's continued concern with chilling the exercise of constitutional rights, recent Supreme Court cases appear to mark a trend toward limiting the circumstances in which statutes will be invalidated on these grounds. This is particularly evident in cases adjudicating the procedural rights of criminal defendants. In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the Supreme Court upheld the guilty plea of a defendant despite his contention that the plea was prompted by fear of the death penalty should he exercise his right to trial. In so holding, the Court limited its previous decision in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), in which it invalidated, on due process grounds, a provision of the federal kidnapping law that permitted the death penalty only in cases where the defendant had elected a jury trial. According to the Court in Brady, "Jackson ruled neither that all pleas of guilty encouraged by the fear of a possible death sentence are involuntary pleas nor that such encouraged pleas are invalid whether voluntary or not." Brady, supra, 397 U.S. at 747, 90 S.Ct. at 1468. Rather, the holding in Jackson was said to result from the finding that "the legitimate goal of limiting the death penalty to cases in which a jury recommends it could be achieved without penalizing those defendants who plead not guilty and elect a jury trial," so that "the death penalty provision `needlessly penalize[d] the assertion of a constitutional right.'" Id. at 746, 90 S.Ct. at 1468, quoting Jackson, supra, 390 U.S. at 583, 88 S.Ct. at 1217. A similar reading of Jackson was followed in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), where the Court found that the imposition of a harsher sentence by a jury on retrial after a defendant's successful appeal of a criminal conviction did not impermissibly chill the right to appeal. See Id. at 30 & n. 17, 93 S.Ct. at 1984. Compare North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (because due process prohibits vindictiveness as part of sentencing, imposition of harsher sentence by a judge on retrial is impermissible unless the new sentence is based on objective information concerning defendant's conduct obtained

[580 F.Supp. 1480]

after the original sentencing proceeding).

While Brady, Chaffin and other cases subsequent to Jackson have thus limited the reach of the Due Process Clause to invalidate statutory schemes that chill the exercise of constitutional rights, these cases have not articulated clear standards that can be universally applied. In Chaffin, the Court held that the challenged statute was valid because the alleged chilling was an incidental consequence of the achievement of legitimate governmental purposes. 412 U.S. at 32-33, 93 S.Ct. at 1986. The opinion was also based, however, on the Court's determination that the likelihood of the defendant being adversely affected by the exercise of his right was too remote to be deemed an unconstitutional chilling. Id. at 33-35, 93 S.Ct. at 1986. Overall it appears that, at least in the area of criminal procedure, the Court is prepared to balance the importance and need for the challenged statute, against the extent to which it chills the exercise of the party's constitutional rights. See also Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (due process clause not violated when a state prosecutor carried out a threat made during plea negotiations to have the accused reindicted on more serious charge for which he could have been originally prosecuted).

In the present case the chilling effect on plaintiffs' procedural due process rights is incidental in the sense that the statutory scheme being challenged was designed not to penalize the exercise of procedural due process rights, but to further the legitimate governmental purpose of limiting pension rights to those teachers who were in good standing when their pension rights accrued. The extent of this chilling is substantial, however, in that teachers in plaintiffs' position must choose between the certain loss of their employment by resignation with the retention of pension rights and the risk of forfeiting those pension rights should they try to retain their jobs by insisting upon a hearing.¹¹ Considering the two relevant factors here—the necessity of the statutory scheme to accomplish a legitimate governmental objective and its chilling effect on the exercise of plaintiffs' rights—a more precise method for weighing the significance of these factors than that provided in the above cited cases needs be sought. The "right-to-travel" cases furnish useful guides in this quest.

As in the present case, the plaintiffs in right-to-travel cases argued that the exercise of their constitutionally protected right was being chilled through the threatened deprivation of a benefit to which they ordinarily could not claim a constitutionally vouchsafed entitlement. The argument was successfully used to challenge durational residence requirements that prevented the plaintiffs from receiving various state-provided benefits. See Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974) (indigent medical care); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (voter registration); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (welfare benefits).

In all of these cases, the invalidation of the residency requirement was premised on the determination that the state had failed to demonstrate a compelling state interest to justify the requirement. Application of the compelling state interest test was prompted by an inquiry into "the extent to which the residence requirement served to penalize the exercise of the right to travel." Memorial Hospital, supra, 415 U.S. at 257, 94 S.Ct. at 1081 (emphasis in original).¹²

[580 F.Supp. 1481]

In determining whether the termination of pension benefits in the present suit should be deemed a "penalty," this Court is mindful of the fact that the Supreme Court's application of the compelling state interest test has been limited to residency requirements used to condition the receipt of "basic necessities of life." Memorial Hospital, supra, 415 U.S. at 259, 94 S.Ct. at 1082. Compare Vlandis v. Kline, 412 U.S. 441, 452-53 n. 9, 93 S.Ct. 2230, 2236, 37 L.Ed.2d 63 (1973) (declining to overrule Starns v. Malkerson, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971), which upheld one year residency requirement as a condition to lower tuition at state institutions of higher education). While the plaintiffs' need for pension benefits may not be quite as compelling as an indigent's need for welfare or medical benefits, I find that it nevertheless qualifies as a "basic necessity," the deprivation of which should be deemed a "penalty." Not only is the forfeiture of pension rights here irretrievable, as in the case of welfare and medical benefits, but it is permanent in that the plaintiffs will forever be deprived of this means of support. Compare Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), (upholding residency requirement for divorce application since plaintiff's rights are postponed, rather than irretrievably forfeited). For these reasons, and in the light of the overall concerns expressed above about chilling the exercise of procedural due process rights, I believe the application of the compelling state interest test to be warranted here.

Although the Administrative Code provisions at issue may be said to further legitimate state goals, I find that neither the goals nor the methods designed for their implementation are calibrated with sufficient precision to satisfy the compelling state interest test. Certainly, the State's efforts to remove incompetent teachers from their jobs is commendable, but this goal would be achieved whether or not dismissed teachers forfeited their pensions. As to the State's goal of limiting pensions to those who deserve it, I find that the manner employed to achieve that goal belies any assertion that the interest is compelling. Putting aside for the moment plaintiffs' claim that deserving teachers may be included among those who forfeit their pensions, see supra Section IV, it is beyond dispute that many undeserving teachers are receiving pensions simply because they have retired or resigned either before dismissal proceedings are concluded or before the State discovers their incompetency. Under such circumstances, the City defendants can hardly claim that their interest in limiting pension benefits to deserving teachers is compelling. In the final analysis, the City defendants are putting a price on a procedural due process right, the exercise of which must be free and unfettered. They have no right to do so. See North Carolina v. Pearce, supra, 395 U.S. at 724, 89 S.Ct. at 2080 (1968).

Admittedly, the present statutory scheme is an efficient means of attempting to attain the stated goals. But administrative efficiency will not suffice to satisfy the compelling state interest test. See Memorial Hospital, supra, 415 U.S. at 263, 94 S.Ct. at 1084; Shapiro, supra, 394 U.S. at 634, 638, 89 S.Ct. at 1331, 1333. In the absence of a compelling interest, the State must devise a statutory scheme that either acceptably minimizes or eliminates the chilling effect on the plaintiffs' exercise of their rights. Since, in this case, I find that the plaintiffs are being penalized by the forfeiture of their pensions for exercising their procedural due process rights without evidence of a compelling state interest to justify that penalty, the challenged statutory scheme must be declared invalid.¹³

[580 F.Supp. 1482]

VI. Conclusion

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment shall be rendered where "there is no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." Applying this standard to the present case, I find that the plaintiffs are entitled to summary judgment. The City Defendants are hereby enjoined from implementing § B20.38.0 of the New York City Administrative Code, insofar as it would deprive plaintiffs of retirement benefits to which they would otherwise be entitled. Furthermore, the City defendants are ordered to reinstate plaintiff Vernon, so that she may have an opportunity to exercise her right to a pre-termination hearing.

SO ORDERED.

FootNotes

1. The text of this opinion has not addressed the merits of defendant Ambach's motion for summary judgment. Defendant Ambach argues that since the plaintiffs' constitutional challenge is directed primarily at § B20-38.0 of the Administrative Code, which is administered and enforced solely by the City defendants, there is no need for him to remain a party to the suit. Until now, this Court has declined to grant defendant Ambach's motion, since there remained a possibility that an injunction restraining the continuation of the dismissal procedures under § 3020 of the Education Law would become necessary pending the resolution of plaintiffs' claim against the City defendants. Inasmuch as this Court is now disposing of plaintiffs' claims against the City defendants as a matter of law, however, and is doing so in a manner that will not require relief against the State of New York, defendant Ambach's motion may be deemed granted.

2. Plaintiffs contend that provisions of the Education Law that apply to school districts outside of the City of New York are also relevant since the New York courts have held that the enumeration of grounds for dismissal of tenured teachers are not exclusive and that other grounds recognized by the Commissioner of Education will also be upheld. See Bott v. Board of Education, Deposit Central School District, 41 N.Y.2d 265, 268-69, 392 N.Y.S.2d 274, 277, 360 N.E.2d 952, 954 (1977). These provisions include as additional grounds for teacher dismissal: immoral conduct, incompetency, conduct unbecoming a teacher, physical or mental disability, and neglect of duty. N.Y.Educ.Law §§ 1102, 2509, 3012(2), 3014(2) (McKinney). I do not pass on this argument since, for reasons indicated, I find it to be immaterial to the disposition of the instant motion.

3. Section B20-44.2 provides in relevant part: Vested retirement rights.—a. (1) Except as provided in paragraph three of this subdivision a, any contributor who has been a member of the retirement system and has had fifteen or more years of accredited service, at least five years of which immediately precedes termination, who discontinues service in the schools or colleges of the city other than by death or retirement or dismissal and who does not withdraw his accumulated deductions shall have a vested right to receive a deferred retirement allowance on attaining the age at which he would first be eligible for retirement had he remained in service but in no case, except as otherwise provided in paragraph two of this subdivision, prior to the date he attains the age of sixty years. Such member shall be known as a discontinued member.

4. Plaintiffs contend, in spite of this authority, that their pension expectancies are property interests under New York law. In support of this contention, they cite Article 5, § 7 of the State Constitution, which provides that "membership in any pension or retirement system of the State or a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired." See Birnbaum v. Teachers Retirement System, 5 N.Y.2d 1, 176 N.Y.S.2d 984, 152 N.E.2d 241 (1958) (invalidating the use of new mortality tables to compute retirement benefits, where such computations had the effect of reducing the annuities of members of the earlier system). I find this argument to be misplaced. The purpose of the amended section of the State Constitution was "to fix the right of the employee at the time he became a member of the system." Id., 5 N.Y.2d at 9, 176 N.Y.S.2d at 990, 152 N.E.2d at 245. This purpose is not thwarted by the statutory scheme being challenged, since § B20-38.0 preceded both plaintiffs' entrance into the TRS and the enactment of the State constitutional provision. Moreover, the Appellate Division's First Department clearly stated in Gorman v. City of New York, 280 A.D. 39, 110 N.Y.S.2d 711 (1st Dept.1952), that the State Constitution "does not imply a restriction upon public authority to remove a member from a public position for valid cause, even though the right to a pension terminates with the removal." Id. at 44-45, 110 N.Y.S.2d 711 (upholding city amendment requiring thirty days' notice before retirement). As in Gorman, the City defendants may here condition the receipt of pension benefits on retirement in good standing, see id. at 44, 110 N.Y.S.2d 711, without infringing any property rights of the employees.

5. Although the Supreme Court remains divided over whether a state can condition its grant of a property interest solely by procedural limitations accompanying the grant of that interest, see Bishop v. Wood, supra, 426 U.S. at 350-55, 96 S.Ct. at 2080-82 (Brennan J. dissenting) & 355-61 (White, J. dissenting); Arnette v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); G. Gunther, Constitutional Law, at 654-55, it is clear from Bishop and Arnette that the Court will defer to state rulings defining the scope of a state-created property right. As indicated supra in the text, the scope of a teacher's right to a pension has been defined not only by the procedural limitations contained in the Administrative Code, but also by state court authority. Therefore, in the present case, there can be no doubt that Bishop controls and that no property interest has been created.

6. In so holding, the decision does not preclude New York courts from reexamining the scope of the employees' entitlements under state-sponsored pension plans, on the basis of changing public attitudes. See, e.g., Uricoli v. The Board of Trustees, Police and Fireman's Retirement System, 91 N.J. 62, 449 A.2d 1267 (1982) (finding that state forfeiture statute did not mandate automatic forfeiture of pensions in every instance of misconduct, in part because of the "national public policy of secure retirement income"). Pending such developments, however, this Court is bound by the law of New York as it now exists.

7. Defendants argue, based on citations to decisions of the Department of Education, that teachers have in fact been subjected to dismissal and forfeiture of pension benefits only in instances of highly culpable conduct. Plaintiffs counter that the absence of dismissal cases based on charges of non-culpable conduct— such as mental or physical disability—is not conclusive evidence that teachers are not subject to dismissal on these lesser grounds.

8. Even were a rational basis test to be applied here, the pension provisions would be sustained for the reasons set forth supra Section II. The provisions are reasonably aimed at limiting pension benefits to deserving teachers, which is a valid state purpose.

9. Essentially, Professor Westen contends that equality is an empty principle, in that the merits of a plaintiff's equal protection claim ultimately depend, not on his classification according to a certain characteristic, but rather on the strength of the right he has been deprived of by virtue of the classification. Professor Greenawalt contends that the principle of equality does have an independent force in many areas of law, but agrees with Professor Westen that in the right-to-travel cases the Equal Protection Clause adds nothing to the merits of the plaintiff's claims.

10. The City defendants have argued that plaintiffs have no cognizable claim under the Equal Protection Clause because there is no classification to begin with. Since I have chosen not to address plaintiffs' equal protection claims, I need not address this argument. I note in passing, however, that the contention itself lends further support to the viewpoint expressed by the Court that plaintiffs' claim is ultimately rooted in their rights to procedural due process and pension benefits, and not in equal protection. A finding of a classification subject to equal protection analysis would be premised on a prior determination that an important right is present, the exercise of which has formed the basis for distinguishing between groups of individuals.

11. The City defendants dispute the assertion that the chilling effect is substantial by citing instances where teachers have demanded a hearing rather than resign. City Defendants' Brief pp. 24-26. Of course, there may still be numerous unreported instances in which teachers have chosen not to exercise their right to a hearing because of their desire to secure pension benefits. In any event, for the reasons set forth in the text that follows, and infra note 12, I need not address this claim.

12. Dunn, supra, 405 U.S. at 339-40, 92 S.Ct. at 1002, and Memorial, supra, 415 U.S. at 258, 94 S.Ct. at 1082, rejected attempts to distinguish Shapiro where plaintiffs failed to show additionally that the right to travel had actually been deterred. Therefore, I need not address the City defendants' contention that teachers have not actually been deterred from exercising their procedural due process rights. See supra note 10.

13. In so holding, I do not depart from the principle expressed in the criminal procedure cases that the withdrawal of a benefit as a consequence of the exercise of a procedural due process right constitutes an impermissible chilling only where the withdrawal is "unnecessary and therefore excessive." Jackson, supra, 390 U.S. at 582, 88 S.Ct. at 1216. See Chaffin, supra; Bordenkircher, supra; Brady, supra; text at pp. 15-17. The requirement of necessity parallels the compelling state interest test utilized here and in the right to travel cases. While in the latter cases, application of the heightened level of scrutiny followed a determination that the statute imposes a penalty, in the Jackson-line of cases, the Supreme Court inquired into whether the chilling was direct or incidental. In both lines of cases, the result was predicated upon the Court's evaluation of the particular benefit, the receipt of which was conditioned on the forfeiture of a constitutional right. In my view, the benefit at issue here—plaintiffs' pension rights—is more in the nature of an expectancy than, e.g., a reduced sentence for pleading guilty. See Bordenkircher, supra; Brady, supra. It is for this reason that I have found an unconstitutional chilling, in contrast to Bordenkircher and Brady. Admittedly, it is harder to distinguish Chaffin on this basis. A defendant who appeals his conviction arguably acts with some expectation that he will not receive a more severe sentence upon a new trial. His more immediate expectation, however, is that if his appeal has merit, he will be entitled to a new trial. The granting of a new trial, regardless of the outcome, could hardly be deemed a penalty. Moreover, the Chaffin opinion was based in part on the majority's finding that the likelihood of the defendant being penalized was too remote to be deemed a chilling of his constitutional rights. According to Justice Powell, the likelihood of actually receiving a harsher sentence is quite remote at the time a convicted defendant begins to weigh the question whether he will appeal. Several contingencies must coalesce. First, his appeal must succeed. Second, it must result in an order remanding the case for retrial rather than dismissing outright. Third, the prosecutor must again make the decision to prosecute and the accused must again select trial by jury rather than securing a bench trial or negotiating a plea. Finally, the jury must again convict and then ultimately the jury or the judge must arrive at a harsher sentence in circumstances devoid of a genuine likelihood of vindictiveness.Chaffin, supra, 412 U.S. at 33-34, 93 S.Ct. at 1986. In contrast, only one contingency need be met before plaintiffs' exercise of their constitutional rights is penalized: their failure to prevail at their hearing. This will automatically subject plaintiffs to dismissal and the resultant loss of their pension benefits. Under these circumstances, a more sensitive inquiry into the existence of a penalty and its chilling effect is demanded.

 

Information Technology HS Assistant Principal Cedric Hinds Orders 4 Teachers To Take Exams For His Son

Assistant principal ordered 4 teachers to take exams for son

By Reuven Fenton and Carl Campanile

April 24, 2014

Assistant Principal Cedric Hinds

A top administrator at Information Technology HS in Long Island City, Queens, admitted he ordered four of his teachers to take science exams for his son, who needed high grades on the tests for a college scholarship, according to the Conflicts of Interest Board.

But Assistant Principal Cedric Hinds never told the teachers the exams were for his son, Christian.

“During the 2011-2012 school year, my son was a senior at a private religious school; at that time, I wanted my son to be awarded a merit-based scholarship for an affiliated college,” Hinds wrote in a settlement announced Thursday.

“In order to enable my son to qualify for a merit-based scholarship, I directed four teachers at the Information Technology High School — all of whom were my subordinates — to complete multiple examinations in biology, physics, chemistry and earth science on behalf of my son,” he added.

“I did not tell any of these teachers this work was for my son.”

Hinds, 63, also admitted to another ethics violation: trying to prod a teacher to enter into a real-estate deal involving his brother’s firm.

Hinds was initially fined $12,500. But the penalty was reduced to $2,500 when he was able to prove financial hardship.

He resigned last year after a 25-year career and earned $109,314.

Hinds on Thursday disputed the written admission attributed to him.

“That’s not what I told them. I told them that my son didn’t need any scholarship. My son, by virtue of being a child of my wife, who works at Northeastern Conference of Seventh Day Adventists, automatically gets a scholarship. So he didn’t need a scholarship,” Hinds said.

He said he retired because he was ill, not because of wrongdoing.

Asked why he was fined, Hinds said, “One of my teachers went to my brother’s real-estate company . . . They ruled that I cannot point my subordinate to any family member to benefit a family member.”

How Bad Is NYSUT as Providers of Due Process at 3020-a Arbitration?

My opinion is that the NYSUT/UFT "play along to get along" with Mike Bloomberg has caused the destruction of the lives of hundreds, if not thousands of effective, professional, caring teachers and staff of the New York City Board/Department of Education ....all members of the UFT....for at least the past 10 years. Their goal was to get tenured teachers out of public schools because Mike Bloomberg hated tenure protections and the thought that someone could not be fired in a second for no reason other than that the administrator wanted this person gone. This is good business, says Mike and Jack Welch (pictured below).

I guess everyone knows that you do not have to use NYSUT to defend at 3020-a. Right?
You can use a private Attorney and team, use a friend/advocate as your assistant, or you can do the 3020-a yourself  "Pro se"  

My email address is betsy.combier@gmail.com, you can contact me to ask questions about how 3020-a arbitration works.

Thus you should find out what you need to know by seeking information on your own. A person brought to 3020-a arbitration is given paperwork with Education Law 3020-a when they are charged. Few read it. Everyone should, but teachers seldom are lawyers too, so they rely on their NYSUT Attorney to tell them what it says.

That's a mistake.

Why is it a mistake? Because your Union, the UFT, and the NYSUT lawyers contracted to protect your due process rights at 3020-a, neglect to do that. For example, if you are charged with misconduct, you may get an email from Virginia Lopreto, a criminal attorney who works on contract to NYSUT. If you actually get to speak with Ms. Lopreto you are lucky. She will tell OSI, SCI, OEO that you refuse to speak with any of them, and then you will never hear from her. Here is a letter written by a member who had that experience (I have removed the name of the member, because victim's names are not important):

"Dear Ms. LoPreto:

My name is                   (                    to you because you never got my name right). My case was assigned to you because I am a UFT member who has been a victim of a false accusation. I received an email sent by your secretary, which was a copy of the email you sent to Ron Vance, from the SCI.  The second and last email that you sent to me was a copy of an email you sent to Mr. Vance, stating that I have the right not to answer his questions. After that, I called your office several times with questions that were never answered. In fact, I could never get in touch with you either by phone or in person. You didn't offer me any support, knowing that I didn’t even have knowledge of the accusations leveled against me. I felt very uncomfortable when told by Mr. Vance, at the time that he had been trying to get my declaration over the phone without legal representation or witness,  that if the UFT lawyer will tell me not to provide information to him, that he would end up closing my case. I wanted to share that with you and I needed some of my questions answered, but it never happen. On May 14, I received the report of the investigation and a letter from the superintendent on May 23rd. I faxed both those documents to you. I called your office seeking advice on what to do next and you never even returned my calls. I kept calling until a substitute to your secretary called me back and said that you were not going to continue with my case and that if I wanted to proceed I just needed to go back to the UFT, something you did not even have the decency to tell me directly. I asked him if he could send an email stating your decision and he replied that you were not going to send me anything.

In sum, I really didn't appreciate your treatment. It is not you not proceeding with the case that is particularly troublesome, but you not even bothering to show due respect and consideration to people without whom you wouldn’t even be here. You work for the union because we make it possible for you to get a salary, and there is just no room or excuse for your lack of courtesy to people you have moral, professional, and ethical obligation to defend.

I cannot even say it was a pleasure meeting you because you did not even make that possible."

See an email from NYSUT Attorney Paul Brown, to a client who fired him when she received this:

"From: Paul Brown <pbrown@nysutmail.org>
To:
Sent: Wed,  2013
Subject: Re: - WITNESSES

I have an ethical obligation not to put on witnesses that I believe will be damaging to your case.  I have confirmed with one of my supervisors and with several colleagues at my office that the witnesses you suggested will offer little, if any, substantive value and will open the door to many more potential problems. .....

Please call me should you have any further questions.

Paul K. Brown

New York State United Teachers

(212) 533-6300 Ext. 168"

NO WITNESSES????? That will get you fired and forever guilty of the charges filed against you. 

Below is the Education Law 3020-a (1) and (2)(a):

NY CLS Educ § 3020-a  (2014)

§ 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 [fig 1] eleven hundred two, and sections [fig 2] twenty-five hundred nine, [fig 3] 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 [fig 4] 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 [fig 1] [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.

However, as NYC has no school board, NYC is not technically a member of NYSSBA. Several years ago I went to the NYSSBA annual conference as Press at the NY Sheraton Hotel, and sat at the only table with any seats, the NYC table. I sat next to Courtenaye Jackson-Chase. At the same table were leading names from the Office of Legal Services, such as Judy Nathan. In the program, my name and the name of the former General Counsel (before Courtenaye), Michael Best, Esq. were listed as representing New York City. I sent the post below to a listserv, nyceducationnews on October 28, 2007:

"To all:

As a paralegal and a non-Attorney, I attended an all-day seminar on School Law held at the Sheraton Hotel on Thursday, October 25, 2007. The seminar was part of the New York State School Boards Association conference.

The book that all participants received describes Open Meetings Law and the requirement that all Executive Sessions of a public body be voted on in a full meeting, and minutes are taken during the subsequent Executive Session where a majority votes on probable cause.

Therefore, all the votes taken and teachers terminated by a vote of the PEP members in Executive Session over the past 5 years are contrary to the law. The NYC BOE has required all persons interested in obtaining a copy of the tape of each meeting to file a Freedom of Information request, therefore the NYC BOE has substantiated the belief that the PEP is a public body. A powerless one, as Michael Best wrote to me “The PEP has no administrative or executive functions”.

Further news distressing to anyone in the New York City school district (NYC and boroughs) who would like to have any voice at all in creating policy or deciding complaints/issues: New York City has the largest school system in the nation, but was not represented at the NYSSBA conference. The only attendees listed from NYC Area 13 were me and Michael Best, a presenter of the “Contract For Excellence” session. Two other people from NYC (who kindly sat next to me at my table) were Ms. Judy Nathan and Ms. Courtenaye Jackson-Chase, both listed as “Attorney” for the NYC BOE.

We thus have a quasi-legal system set up to prevent any opposition to a resolution/vote/consent set by the Mayor/Mr. Klein.........

We have no right to get an independent decision on any complaints we may have, as everyone making decisions on grievances/special education hearings belong to Joel and Mike.

Gosh, how could we get in this position?"

David Bloomfield answered with Open Meetings Law, Sections 105 and 106

As we all now know, NYC does not have a school board/employing board and no longer has Executive Sessions at the PEP meetings. When the PEP did hold Executive Sessions, the group violated Open Meetings Law Section 105 by having the Session before the public meeting began. I used to speak at the public meeting part of the monthly PEP meeting, and ask for the reason for that, as well as a tally of each member's vote. Joel Klein would not nicely tell me to sit down, shut up and my time was up. I would say that my time was not up, but he would not give me an answer. Still don't have one.

In fact, if you look at the Notice of Determination of Probable Cause (paperwork sent to all teachers/employees charged with 3020-a), the date of the Executive Session at which probable cause was voted on, is blank. I posted the probable cause notice received by Francesco Portelos with his permission. There is no date for the Executive Session listed. Superintendent Erminio Claudia

Superintendent Cludia

testified at Francesco's 3020-a that there WAS an "Executive Session", namely when she met with "legal" on Francesco's case and they "found" probable cause for his charges. I would suggest that this meeting is not what is cited in the law, Open Meetings Law, or 3020-a(2)(a). Where did she get this version?

So in all cases brought to 3020-a arbitration, probable cause is determined improperly. Without the proper determination of probable cause according to Education Law 3020-a (1) and (2)(a), arbitrators appointed to hear 3020-a cases have no subject matter jurisdiction to decide on whether there is Just Cause for any penalty.

This is what NYSUT doesn't want you to know. In fact, your NYSUT attorney may rush you into a pre-hearing and then a full hearing/resignation/retirement/fine and settlement without any time to discuss the charges against you. NYSUT states in letters to those who opt to hire a private attorney or advocate, or do the 3020-a themselves:

"...changes to the Education Law negotiated by the UFT and the Board supercede the statutory provisions. Even though you are not utilizing NYSUT legal counsel, your case must be processed pursuant to the disciplinary procedures negotiated by the UFT and the Board. You do not have the right for your case to go forward pursuant to the Educational Law as it exists without the negotiated changes contained in Article 21 (G).(scroll to p. 113)."

No mention of probable cause found as required by Education Law 3020-a. But NYSUT isn't saying that the Law isn't there, just that you cannot use it for your case.

Bulloney.

This is, in my thinking, the biggest error of NYSUT representation. Because without a probable cause determination in an Executive Session of the employing board, and a vote by a majority of members, you are left with anyone "finding" probable cause, and charging you with something that may or may not be true. The arbitrator hears only what the NYC DOE wants him/her to hear.

But arbitrators on the NYC permanent panel are paid $1400/day, and if they agree that probable cause has not been properly determined they wont get paid. So the arbitrators deny the dismissal of the case on any grounds, or there will be no payment coming their way.

Teacher discipline and termination are what the Department of Education calls "their business". It's not only a business, it's a partnership. With NYSUT and the UFT.

Sol Stern Responds To Diane Ravitch

SOL STERN

The Real Common Core Story

A response to Diane Ravitch and others

17 April 2014

LINK

 

PHOTO BY WWW.AUDIO-LUCI-STORE.IT

I couldn’t miss the eye-catching headline on Diane Ravitch’s influential blog: “Schneider Schools Sol Stern on the Common Core.” Mercedes Schneider, a Louisiana teacher, is one of Ravitch’s loyal allies in the education-reform wars. Ravitch thinks she’s a great investigator and often cites her work. Actually, what Schneider excels at is promulgating conspiracy theories and using guilt-by-association to discredit those with whom she disagrees—such as supporters of the Common Core State Standards, whom she accuses of being duped and bribed by a corporate, anti-public school conspiracy led by Bill Gates, with an assist from President Barack Obama.

Schneider’s denunciation of one of my recent articles defending the Common Core characteristically didn’t engage with my arguments, but it did provide a list of my nefarious “connections” and “involvements” with conservative organizations. With trumpets blaring, Schneider announced that the Manhattan Institute, where I am a senior fellow, has “a board of trustees noticeably heavy on hedge fund managers” and that “it should come as no surprise that MI promotes ‘economic choice’; ‘market-oriented policies,’ and ‘free market ideas.’” (Schneider doesn’t seem to have noticed that most supporters of free markets in education actually oppose the Common Core.) She also levies the bizarre allegation that “MI is a cousin to the [conservative] American Legislative Exchange Council (ALEC).” In another feat of investigative journalism, Schneider offers an inside scoop about me and my wife: “Stern is not a teacher, nor has he ever been a teacher. But he is married to a Manhattan, NY, high school teacher. Not sure if she is under the so-called Common Core State Standards (CCSS).” And I’m not sure what that even means.

Another of my defects, according to Schneider, is that I have written favorably about E.D. Hirsch’s Core Knowledge curriculum. She doesn’t explain what’s wrong with the Hirsch curriculum but instead alleges that Core Knowledge “was purchased by Rupert Murdoch’s Amplify in 2013.” If that were true, it would be considered a hanging offense in Schneider and Ravitch’s leftist circles, because Amplify is a “for-profit” company and Rupert Murdoch is, you know, Rupert Murdoch. But the Murdoch allegation is false. Schneider probably borrowed it from Ravitch, who published it on her blog last year before retracting the claim when confronted with the truth—that the Core Knowledge curriculum was licensed to Amplify for the sole purpose of distributing it to schools around the country (a good thing for American children.)

Normally, it wouldn’t occur to me to respond to Schneider’s fact-deprived attack—except that it appeared on Ravitch’s blog, which reaches tens of thousands of readers on some days. Ravitch is also the leader of a new left-wing education movement that has effectively exploited parental and teacher discontent with the Common Core Standards. It says something significant about the cause Ravitch now champions that she approves of Schneider’s methods and uses them herself in criticizing my politically incorrect views on education reform.

Like Schneider, Ravitch believes that readers need to know the highlights of my life story and my affiliations in order to evaluate properly my position on the Common Core. She begins by noting that we first met when we were fellows at the Manhattan Institute, which is true. She then goes on to assert as an uncontested fact that after serving as “an editor at the leftwing Ramparts” in the 1960s, I “had a political-ideological conversion experience” and “became a zealous conservative.” My transition from leftist radicalism toward a rather moderate conservatism took place gradually over many years and involved several important issues, including the defense of Israel, education, racial politics, and the failures of the welfare state. Tagging me as a “zealous” conservative is a calculated move on Ravitch’s part. I am no more zealous about conservative ideas than Ravitch was when she served in the administration of the first President Bush. Like her, I support gay rights, abortion rights, and other liberal positions. Indeed, if I really were a zealous conservative, I probably wouldn’t support the Common Core.

Dredging up my political loyalties from almost a half-century ago and my subsequent shift in thinking hardly seems relevant to understanding my views on the Common Core. Yet it does reveal Ravitch’s hypocrisy. I plead guilty to having flip-flopped once, from leftism to conservatism. But Ravitch has flip-flopped twice, from liberalism to conservatism and then all the way back beyond liberalism to her embrace of leftist doctrines—including her much-repeated claim that America’s “one percent,” the corporate elite, are now engaged in a conspiracy to dismantle or privatize the nation’s public schools.

Ravitch’s hypocrisy is even more pronounced when you consider her current fulminations against the Common Core Standards. Her two main (but contradictory) complaints are, first, that the standards are part of a “billionaire boys’ club” plot to destroy the public schools and, second, that the Obama administration is using the standards to impose a nationalized curriculum on the public schools. The irony in all of this is that, if I had to name one individual who, from 1988 to 2008, did the most to encourage education policymakers to support national standards and curriculum, it would be Diane Ravitch.

As a deputy education secretary in the George H.W. Bush administration, Ravitch’s main assignment was to use the federal government’s bully pulpit to push for national standards. She subsequently wrote a book for the Brookings Institution titled National Standards in American Education: A Citizen’s Guide. Ravitch insists that there is no inconsistency here, since she had only supported “voluntary” standards, whereas the Common Core, she says, represents a federal mandate (because the Obama administration awarded funds to some states for adopting the standards). But adopting the Common Core remains voluntary. Five states initially declined to adopt, and more are likely to discard them in the near future. None will suffer federal penalties for doing so.

Moreover, Ravitch has never confronted the most glaring contradiction stemming from her long-time advocacy of national standards. On November 7, 2005, she published a widely discussed (and brilliant) op-ed in the New York Times declaring that “Americans must recognize that we need national standards, national tests and a national curriculum.” (Emphasis added.) Ravitch expressed frustration with the failure of President George W. Bush to follow up on the efforts of the previous Bush and Clinton administrations to move toward national standards and national tests. Because of the Republican Party’s “philosophy of localism,” wrote Ravitch, Bush “adopted a strategy of ‘50 states, 50 standards, 50 tests,’” which failed to bring about improvements in the schools. Ravitch cited the poor results of that year’s federal NAEP tests to support her contention that the “varying state standards and tests are inadequate,” and that there would be no improvement in students’ academic performance as long as the administration continued to follow “a strategy of letting the states choose their own standards and tests.” Nor, Ravitch concluded, “will we reach that goal [of academic improvement] if we pretend that mathematics taught in Alaska or Iowa is profoundly different from the mathematics taught in Maine or Florida, or for that matter, in Japan and Hungary.” Ravitch never used the word “voluntary” to qualify her support for national standards and tests, so it’s hard to take seriously the rationalization she has since offered for opposing the Common Core.

But even more remarkable was Ravitch’s unequivocal endorsement of a national curriculum. The curriculum issue has always been the third rail in any discussion of national education standards in the United States. (Most other industrialized nations have national curriculums.) That’s not only because of the Republican Party’s “philosophy of localism” in education, as Ravitch noted, but also because U.S. education law clearly prohibits the federal government from “exercising control” over the development of curriculum by states or school districts. With that restriction in mind, the authors of the Common Core included specific language saying that the standards were not to be regarded as a curriculum and, moreover, that each state should develop its own grade-by-grade curriculum materials aligned with the standards.

With her endorsement of a national curriculum, as well as national standards and tests, Ravitch was arguably even more “zealous” than other champions of standards reform at the time. And because of her reputation as one of the nation’s most esteemed education scholars, her Timesarticle provided encouragement to the Washington-based organizations—including the National Governors Association and the Council of Chief State School Officers—that were beginning to push for the adoption of national standards, and whose efforts led a few years later to the creation of the Common Core. Borrowing from Ravitch, these groups argued that the United States couldn’t improve the public schools if it continued to follow a strategy of “50 states, 50 standards, 50 tests.”

In her recent blog post, Ravitch wrote that she wasn’t “sure that Stern understands the Common Core standards.” Specifically, she faulted me for “think[ing] that the Common Core implements the ideas of E.D. Hirsch Jr.” I have never made such a claim. What I didwrite, almost two years ago, was that the Common Core Standards deserved support—among other reasons, because they were “creating a historic opportunity to introduce Hirsch’s curriculum to many more schools and classrooms.” So far, some progress has been made along those lines: New York State has made the Core Knowledge English Language Arts curriculum for the early grades available to all schools; 71 New York City elementary schools are using the Core Knowledge curriculum; the Louisiana Education Department has designated Core Knowledge as the preferred curriculum for the state’s elementary schools; and Amplify will soon distribute the Core Knowledge curriculum on electronic tablets to classrooms around the country.

In my writing, I have suggested that education reformers of all stripes could help convince states and districts to adopt Core Knowledge or some variant of the Hirsch curriculum as part of their implementation of the Common Core Standards. I had once hoped that Diane Ravitch would do so—despite her generally negative opinion of the Common Core—because for almost her entire professional life, she has been a fervent advocate of Core Knowledge and, more recently, an advocate for a national curriculum in the United States. Instead, she has decided that it would be better for American education if the Common Core were brought down entirely. And after a quarter-century of supporting Core Knowledge (including serving on its board), Ravitch has suddenly discovered that Hirsch’s early-grade curriculum is “developmentally inappropriate” for young children.

If Diane Ravitch and other anti-Common Core campaigners on both the left and right succeed in their destructive mission, we will go right back to “50 states, 50 standards, 50 tests.” Ravitch and her allies can then celebrate their political victory—but the children in America’s schools will be the losers.

Sol Stern is a contributing editor of City Journal, a senior fellow at the Manhattan Institute, and the author of Breaking Free: Public School Lessons and the Imperative of School Choice.