Will the termination of tenured teacher stand after an arbitrator found that he engaged in poor judgment exhibiting flirtatious behavior around his middle school female students?

No. An eighth grade physical education teacher was charged with various allegations concerning his conduct around female students and was summed up by the court as follows:

The evidence presented at the arbitration hearing establishes that petitioner, while an eighth-grade physical education teacher, initiated conversations with at least two of his female students asking them if they had older sisters, and, if so, how old they were, whether they had boyfriends, and whether they had photographs of them,[1]and accepted the phone number of one student’s 23-year-old sister. Petitioner also told a student that her mother had called him “handsome” while passing him on the street. One student testified that petitioner’s conduct made her feel “uncomfortable,” and another said that his conduct “aggravated” her. Of the 12 specifications with which he was charged, the Hearing Officer dismissed five, including charges that he had engaged in similar behaviors in the 2010-2011 school year, that he actually contacted the sister whose telephone number he received, and that he told the students, “[M]y wife said I can look but I can’t touch.”

The arbitrator found his conduct to be in violation of his responsibilities as a teacher and ordered his dismissal. The Supreme Court agreed. However, on appeal to the Appellate Division, First Department, by a split decision, the Court found that the teacher”showed very poor judgment, but he has not been shown to have violated any law, or even any rule or regulation of the Department of Education.”

The Court went on to write that “Our decision today does not excuse petitioner’s behavior, but directs a less serious punishment. Should it continue, termination may well be in order in the future.”

The dissent found that the penalty of dismissal did not shock the conscience, the legal standard to overturn an arbitrator’s ruling and found that the teacher’s alleged “harmless banter” was the type of conduct specifically prohibited in Education Law 3020-a as conduct unbecoming a teacher.

IN RE TERRELL WILLIAMS, Petitioner-Appellant, v. CITY OF NEW YORK, ET AL., Respondents-Respondents., 2016 NY Slip Op 06184.  899, 653954/13. Appellate Division of the Supreme Court of New York, First Department. Decided September 27, 2016.

Is a teacher required to raise, as a defense in a disciplinary hearing, a charge that is over three years old?

No. Education Law § 3020­a (1) requires that disciplinary charges against a teacher be brought within three years from the date of the alleged misconduct, unless the alleged misconduct constituted a crime when committed.

Petitioner, teacher, was charged with, among other things, the submission of false documentation to the DOE in order to improperly obtain his daughter’s admission to a school for which she was not zoned. At the 3020-a hearing, although the DOE attorney referred to charge as criminal and cited two provisions of the Penal Law, the arbitrator did not make specific findings that the conduct was criminal (although the arbitrator did find that teacher committed the act). While the incident was over three years old the teacher did not raise this as a defense.

The Appellate Division, First Department, found that the teacher is not required to raise the staleness of a charge as a defense and dismissed the charge. The matter was sent back to the arbitrator for findings less than termination.

In the Matter of DAVID SUKER, Respondent, v. NEW YORK CITY BOARD/DEPARTMENT OF EDUCATION, Appellant. 15398, 103742/12 Appellate Division of the Supreme Court of New York, First Department.129 A.D.3d 502 (2015), 11 N.Y.S.3d 578, 2015 NY Slip Op 04940. Decided June 11, 2015.

Can a teacher recover damages from the DOE for injuries sustained from a student assault?

No. Betty Brumer, a fourth grade teacher at a public school in Brooklyn, alleges that she was injured when she was assaulted by one of her students. According to the plaintiff, the student had been restrained by a school security guard after engaging in a fight with another boy during a fire drill.

Although the security guard escorted the student away from the  rest of the class, the student subsequently  returned to the  scene and began fighting again. The plaintiff alleges that during this second episode, the student hit her, causing her to fall to the ground and sustain injuries.

The Appellate Division, Second Department, found that while the DOE might owe a special relationship to students no such relationship is owed to teachers and administrators. The Court went further to explain that a special relationship can be formed in three ways: “`(1) when the  municipality violates a statutory  duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes  positive direction and control in the face of a known, blatant and dangerous safety  violation'”

None of these were present for Ms. Brumer.

BETTY BRUMER, Appellant, v. CITY OF NEW YORK et al., Respondents, et al., Defendant. 2014­00461, Index No. 32716/09. 132 A.D.3d 795 (2015) 18 N.Y.S.3d 149 2015 NY Slip Op 07611, Appellate Division of the Supreme Court of New York, Second Department. Decided October 21, 2015.

Will the failure to file a notice of claim in an Article 78 challenge to a probationary termination doom the proceeding?

Yes. While not required for most Article 78 proceedings a notice of claim is required when a petitioner seeks to annul the determination of a school district terminating her services as a teacher. The Court of Appeals found that it did not matter that the teacher’s claim for back pay was incidental to her petition to reverse the school district’s determination. Education Law Section 3813 (1) does not distinguish between equitable and positive law claims for the notice of claim requirement for Article 78 proceedings to reverse a probationary termination.
In the Matter of ELIZABETH MCGOVERN, Appellant, v. MOUNT PLEASANT CENTRAL SCHOOL DISTRICT, Respondent. No. 74., 25 N.Y.3d 1051 (2015) 33 N.E.3d 1280 12 N.Y.S.3d 11, 2015 NY Slip Op 04675,  Court of Appeals of New York. Argued April 28, 2015.
Decided June 4, 2015.

Will the failure of an adminstrator to observe procedures designed to ensure the fairness and integrity of the rating system deprive a tenured teacher of the opportunity to improve his performance before receiving two years of ineffective ratings cause the reversal of his termination?

Yes. Petitioner, a teacher at a Bronx transfer school with 11 years of satisfactory ratings, was rated ineffective for two consecutive years which was confirmed by a validator was terminated after a 3020-a hearing. The record revealed that the single administrator who rated him failed, on numerous occasions to provide timely observation reports thus depriving him of an opportunity to improve his performance.

Upon appeal to New York County Supreme Court, Justice Barbara Jaffe found that “Petitioner was not provided with copies of most of his reports in time for him to work on the alleged insufficiencies and improve his skills before the next observation or the end of the year. Instead, petitioner received, without explanation, four of the 2015 reports on June 9, 2015, within weeks of the end of the school year, and weeks, and in some cases, months, after the observations. Despite DOE rules requiring that observations be completed by the end of May, two of petitioner’s 2015 observations were conducted in June.”

Justice Jaffee also found that the alleged improvement plan was not communicated to petitioner until well after it was to be acted upon. This included demonstration lessons by the rating officer and weekly meetings.

McSorley also observed petitioner several times in 2015 but did not give him a copy of the reports until June 2015, sometimes months after the observation, without explaining the delay, and he did not ensure that petitioner received a copy of the 2014 formal observation report.

Justice Jaffee further noted that the refusal by the arbitrator to take the rating officer’s attitude and conduct as relevant to the proceeding was arbitrary and capricious. The judge also noted that petitioner’s MOSL scores were satisfactory, a point the arbitrator found irrelevant.

The Court reversed the order of termination and restored the petitioner to his previous position.

Supreme Court, New York County. 2016 NY Slip Op 26229, Decided July 14, 2016.

Will an appeal from a teacher termination survive a motion to dismiss when the arbitrator’s record is full and complete?

No. An elementary school teacher from the Bronx who received satisfactory and effective ratings since he was hired in September 2005 sought to set aside the finding, after a seven day hearing, of just cause to terminate him.

The hearing concerned two group of specifications which alleged that “[Petitioner] engaged in indecent exposure, inappropriate touching, corporal punishment, conduct which could constitute a crime, conduct unbecoming his profession, misconduct and neglected duties.” and that “[He] engaged in corporal punishment, conduct which could constitute a crime, conduct unbecoming his profession, excessive lateness, misconduct and neglected his duties.”

On appeal to the Supreme Court the teacher raised several defenses including factual arguments and a due process violation. The DOE moved to dismiss the petition and the Court agreed to dismiss the petition.

Justice Edmead found that where there is a significant record petitioner’s assertions of factual errors cannot defeat a motion to dismiss. The Court will, according to Justice Edmead, look to documentary evidence submitted (the record) to go beyond petitioner’s assertions.

[It should be noted that under normal motion practice a motion to dismiss treats petitions as true in order to decide whether the respondent must answer the petition. While the Court found that factual assertions were not enough to cause the DOE to answer the petition due to the record the petition did allege that that the penalty of termination “shocked the conscience.” The Court did not make a finding concerning this allegation. The petitioner appealed the decision on July 1, 2016. Edlawfaqs will follow this case.)

In the Matter of the Application of NOAH BERKLEY, Petitioner, For an Order Vacating a Decision of a Hearing Officer pursuant to Section 3020-a (5) of the Education Law and Article 75 of the CPLR, v. NEW YORK CITY DEPARTMENT OF  EDUCATION Respondent. Docket No. 650648/2016, No. 2016 NY Slip Op 31210(U),.  Supreme Court, New York County. June 27, 2016. (Carol Edmead, J)

Can a teacher who left the DOE before the date set in the UFT contract to obtain retroactive pay maintain a class action against the union based on the union’s failure to represent this group of teachers fairly?

No. Under the terms of the Memorandum of Agreement (the Collective Bargaining Agreement) entered into between the UFT and the DOE provisions were made for retirees and currently employed teachers to obtain retroactive pay for the period between the last day of the previous contract in 2009 and the new agreement. No provision was made for teachers who resigned during this period and were not actively employed on the contract date.

Four teachers who neither retired nor were terminated but resigned their positions during this period sought to maintain a class action against the union for its breach of its duty of fair representation.

Donna Mills, Justice of the New York Supreme Court, found that the teachers had no legal basis to maintain the case in State court but rather the teachers had a right to maintain an improper practice charge, under the Taylor Law, before PERB.

N.B. Given PERB’s short statute of limitations it is doubtful whether the teachers could maintain such a proceeding in PERB.

2015 NY Slip Op 31363(U),DIANNA MORTON, GRANT TEDALDI, CARLY MASSEY, and JOY BEIDER, Plaintiffs, v. MICHAEL MULGREW, as President of THE NEW YORK UNITED FEDERATION OF TEACHERS, LOCAL 2, AFT, AFL-CIO, Defendant. Docket No. 652211/2014, Motion Sequence No. 1. Supreme Court, New  York County. April 21, 2015.