Will the termination of a probationary teacher, accused of corporal punishment for pulling an autistic student back into her classroom, be upheld?

Yes. Petitioner, a probationary special education teacher, while teaching her class, observed an autistic student leave the room. When she tried to verbally instruct him to return and he refused she went into the hall and physically brought him back into the classroom. The incident was witnessed by two teachers and caught on video.

The principal reported the incident to OSI who referred the matter back for investigation by the principal. After her investigation the principal found that the petitioner had used excessive corporal punishment. Petitioner was subsequently terminated from her teaching position.

Upon appeal to the Supreme Court, New York County, found that petitioner’s actions were not violative of the Chancellor’s Regulations as the physical force used was only used as a last resort and was not punitive. The Court reversed the DOE’s termination and ordered her back to her position.

The DOE appealed to the First Department. The First Department reversed the lower court’s reinstatement order and affirmed the DOE’s decision to terminate the petitioner. The First Department found that, “Petitioner contends that respondent erred in concluding that her actions — taking hold of the arm of a non-verbal, special-needs student as he lay on the floor writhing and physically dragging him approximately eight feet across the hall to the classroom he had exited without permission — constituted prohibited corporal punishment. This contention is insufficient to establish that respondent reached its conclusion in bad faith or for an impermissible reason [citations omitted].”

IN RE STEPHANIE KRILOFF, Petitioner-Respondent, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent-Appellant. 4523, 101344/15. Appellate Division of the Supreme Court of New York, First Department. Decided September 28, 2017. 2017 NY Slip Op 06713

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Is a teacher’s complaint about cheating on the Regents examination protected by the free speech provisions of the First Amendment?

No. An Earth Science teacher observed that a fellow teacher’s students achieved perfect score on the lab portions of the Earth Science Regents and suspected cheating. He complained to his immediate supervisors and when they failed to act he notified the State about the suspected cheating.

After this report the teacher claims he was rated unsatisfactory and was removed as chairman of the the Math and Science Department in his school.

He commenced an action in Federal District Court that he was retaliated for making the complaint and that the complaint was speech protected by the First Amendment. The District Court dismissed his First Amendment claimed and he appealed to the Second Circuit.

The Second Circuit affirmed the District Court’s decision finding, “Only certain types of speech made by government employees are protected by the First Amendment” and that since the complaint was made pursuant to his duties as a teacher he was acting as an employee, not as a citizen, and was thus not protected by the First Amendment.

The Court went further, chilling even citizen speech, by holding, “Even if private citizens can complain to state educational authorities in the same way [the teacher] did, it would not change our conclusion that [the teacher’s] speech was made pursuant to his official duties, and therefore unprotected by the First Amendment.”

PETER COHN, Plaintiff-Appellant, v. THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, ERIC STRAUSS, individually, and JAMES JOHNSON, individually, Defendants-Appellees. No. 17-517-cv. United States Court of Appeals, Second Circuit. September 20, 2017.

Can an unemployment insurance claimant receive benefits after resigning while charges are pending?

Yes. Normally when a claimant is terminated for cause they are disqualified from receiving Unemployment Insurance benefits. Additionally, a claimant who voluntarily leaves their employment without good cause cannot claim benefits.

In a case involving a paralegal working for the City the claimant, while charged with disciplinary infractions entered into a stipulation which waived her right to a hearing, found no wrong doing on her part and was able to obtain a neutral letter of recommendation, resigned her position.

The Unemployment Insurance Appeal Board granted benefits and the Appellate Division, Third Department, affirmed. The Court held, “[a] claimant who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct” (Matter of Jimenez [New York County Dist. Attorney’s Off.—Commissioner of Labor], 20 AD3d 843, 843 [2005] [internal quotation marks and citation omitted].

The claimant claimed that she was subjected to bullying and harassment and the determination that this was credible would not be disturbed on appeal.

In the Matter of the Claim of YOLANDA COHEN, Respondent. NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, Appellant. COMMISSIONER OF LABOR, Respondent. Appellate Division of the Supreme Court of New York, Third Department. Decided July 27, 2017. 2017 NY Slip Op 05885

Has a teacher violated City Conflicts of Interest rules when, as she was preparing to leave the City system, she removes items she obtained through Donors Choose for use in another school?

Yes. As a teacher at P.S. 9 in Manhattan respondent obtained computer and other equipment from Donors Choose, an organization that solicited the equipment from public donations.

“As she was preparing to leave DOE for a new teaching position in Westchester County, despite being told by her DOE Principal that the donated equipment was the property of DOE and not hers to take, she removed approximately $10,000 worth of the donated DOE equipment, including multiple iPads, iPods, MacBook laptops, printers, robots, and Nook e-readers, to use at her new job.”

Respondent returned the items and since she was going to use the items for an educational purpose in a school in Westchester the COIB agreed to impose a fine of $6,000. Respondent agreed to fine.

IN THE MATTER OF ALISON KAN, NEW YORK CITY CONFLICTS OF INTEREST BOARD, COIB CASE NO. 2016-846, JULY 19, 2017

Does a teacher who charges a nominal amount for Regents review packets to cover her own copying costs run afoul of the City’s Conflicts of Interest rules?

Yes. An algebra teacher  from Benjamin Banneker Academy reproduced review packets for her students for $5 each, rented her personal calculators for $1 each and advertised the review packets via a letter printed on her school’s letterhead was charged with violating the City’s Conflicts of Interest rules. She argued that she had no personal profit from any of the activities charged and merely sought to recoup her costs. She also claimed she refunded the money collected to her students.

The City Conflicts of Interest Board found that she had violated COI rules and did not impose a fine finding that the money was returned and she had no improper intent. A public warning letter was issued.

IN THE MATTER OF NALO LEWIS, City of New York, Conflicts of Interest Board,COIB CASE NO. 2016-654, JULY 19, 2017

Will the claim that administrators are firing experienced teachers in order to replace them with younger and less expensive ones overcome a termination based on ineffective ratings?

No. Petitioner, a teacher at a transfer school was rated developing for 2013-14 and 2014-15 and ineffective for 2015-16. After a hearing pursuant to Education Law Section 3020-a the hearing officer found that the teacher “was unable to implement recommendations or otherwise improve his pedagogy” and that “there is no likelihood that further remediation efforts would improve the [petitioner’s] competency.”

Petitioner argued that the hearing officer’s findings were not supported by the evidence adduced at the hearing. He claimed that observations were not returned on time for him to implement suggested changes, that there was a vendetta against him (to which fellow teachers testified on his behalf) and that the nature of his school, a transfer school for students who had been given a second chance to graduate high school after leaving other high schools made the termination decision improper.

The Court upheld the termination finding that its powers to reverse the determination were severely limited. The judge wrote “the Court can only determine whether the Hearing Officer’s decision was arbitrary or capricious and whether the penalty shocks a sense of fairness. The Court cannot conduct a fact-finding hearing to evaluate witness credibility or to assess, as raised before the Hearing Officer here, whether administrators are simply firing experienced teachers in order to replace them with younger (and cheaper) instructors. Those are determinations to be made by the Hearing Officer. Petitioner was provided with an opportunity to contest his evaluations and to offer theories regarding why his administrators should not be viewed as credible.”

DONALD VANTERPOOL, Petitioner, v. CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF EDUCATION, CARMEN FARINA, Respondents. Docket No. 655701/2016, Mot. Seq. 1. Supreme Court, New York County. August 7, 2017

Does a voluntary retirement while an OSI investigation is pending which results on being placed on the ineligible list preclude the maintenance of a federal claim against the DOE for violating plaintiff’s due process rights?

Yes. Plaintiff, a tenured administrator assigned to the Committee on Preschool Education, brought a federal due process claim against the DOE for placing her on the ineligible list without her knowledge or consent. While an OSI investigation was pending as to whether plaintiff followed proper procedure in connection with a complaint on how she had handled an IEP, she voluntarily retired.

Several months later OSI substantiated the investigation and recommended that she be placed on the ineligible list and barred from future employment with the DOE.

Over 2 years later plaintiff applied for an educational position with a private company and first learned she had been placed on the ineligible list.

The DOE argued that there was no protected property interest involved, an essential element of a due process claim, since she voluntarily retired.

The Court agreed. “There is no constitutionally protected property interest in prospective government employment.” [citation omitted]

ROSEMARIE RICHARDSON, Plaintiff, v. CARMEN FARINA, et al., Defendants. No. 16-CV-1364 (JPO). United States District Court, S.D. New York. February 23, 2017.