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.

Will the Court permit a probationary termination where the deficiencies in the performance review process were not merely technical but undermined the integrity and fairness of the process?

No. Petitioner was hired as a probationary special education teacher. During the first two years of her three ­year probationary period, she had an exemplary record, receiving satisfactory ratings and several letters of commendation. In her third year, on November 20, 2012, petitioner participated in an annual review meeting concerning a special education student in her fourth ­grade class. At the meeting, petitioner opposed the position taken by the school’s special education coordinator and sided with the student’s mother, who had asked that her son be removed from the “Alternate Assessment” program favored by Principal Jennifer Jones ­Rogers .

The very next day, November 21, 2012, the principal conducted the first formal observation of petitioner for the 2012­-2013 school year. On November 26, 2012, after a post-­observation conference, the principal issued an observation report that found petitioner’s math lesson unsatisfactory because: (1) “[she] did not model for children what [she] expected them to do”; (2) “[her] lesson did not address the problem [she] presented for students to solve”; (3) “[she] did not incorporate rigor in [her] lesson effectively”; and (4) “[she] did not include accountable talk structures in [her] lesson.” The report advised petitioner that a “log of support” would be put in place for her “to grow [her] practice and move toward attaining satisfactory performance.” Petitioner submitted a written rebuttal in which she stated that she had conducted the lesson in the exact manner that the principal had outlined in their pre-­observation conference and that the post-­observation conference focused more on the principal’s dissatisfaction with the position petitioner had taken at the Annual Review than on the math lesson in question.

On February 21, 2013, Assistant Principal (AP) Scott Wolfson conducted a formal observation of another of petitioner’s math lessons . The post­-observation conference was not held until April 16, 2013, at which time petitioner was given an observation report that rated the lesson unsatisfactory because: (1) “[w]hile the children within your group were able to solve the problems that [she] presented to them, it was evident that their solutions indicated algorithmic solution strategies rather than a deeper conceptual understanding of the problems”; (2) “[s he] failed to provide opportunities for [her] students to discuss their mathematical thinking with each other”; and (3) the questions that she posed “[did] not serve to develop children’s conceptual understanding of mathematics, which should be our goal.” The report advised petitioner that “[a]s a result of this lesson, we will continue to implement a log of assistance in order to support you in our mutual goal of attaining a satisfactory rating.”

Petitioner submitted a rebuttal stating that “[t]he fact that m y [special education] students were able to solve the word problem s with algorithmic solution was a huge accomplishment for my students who entered the fourth grade far below grade level” and that “Mr. Wolfson wanted to concentrate on the fact [that] the students struggled with conceptualizing their understanding of mathematics , which was not the goal for my lesson plan for that day.” Petitioner added that “Mr. Wolfson and I also planned my lesson together two days before and [he] never mentioned that he wanted to observe how the students conceptualize math.”

Meanwhile, on April 10, 2013, petitioner received a “Summons to Disciplinary Conference” from Principal Jones ­Rogers . On April 18, 2013, after a conference was held, the principal and the AP issued a letter advising petitioner that: (1) “[s he] failed to suggest appropriate modifications to [her] students ‘IEP’s to support their academic needs “; (2) “[i]n the case of [E.G.], [she] failed to provide [E’s ] parents with a promotion in doubt letter”; and (3) “[she was ] negligent in [her] attention to the records and reports required of [her] in [her] capacity as special education teacher.”

On April 22, 2013, petitioner received an overall U­ Rating for the 2012-­2013 school year, even though her performance was rated satisfactory in 14 of the 22 categories considered. The rating form contained a signature by the principal, dated January 19, 2013, recommending “[petitioner’s ] dis continuance of probationary service.” It also contained a signature by the district superintendent, dated January 22, 2013, adopting the recommendation. On April 24, 2013, petitioner received a revised U­ Rating that changed the date of the principal’s and district superintendent’s signatures to April 22, 2013.

The Department of Education discontinued petitioner’s probationary employment as of May 29, 2013, a month before the school year ended. In June 2013, petitioner sought to review her personnel file and discovered that all of her satisfactory written formal and informal observations from the 2010-­11 and 2011-­12 school years were missing. On October 8, 2013, Principal Jones ­ Rogers resigned.

The Appellate Division, First Department found petitioner’s termination and U-rating highly suspicious. The assertion that, after the first observation, the petitioner and the principal discussed the petitioner’s IEP opinion was not refuted at the review hearing. Additionally, petitioner was given no time to “improve her performance” after a long delay in receiving feedback about her performance.

The Appellate Division also noted, in a footnote that “Two months before her resignation, parents, teachers, students and a state senator had held a rally to protest Principal Jones-Rogers’ policies, which allegedly included retaliating against teachers who disagreed with her and cramming students into special education classes without parental consent”

The petition was granted and the matter sent back to the DOE for further proceedings.

2016 NY Slip Op 03454. IN RE LESLIE TAYLOR, Petitioner-Appellant, v. CITY OF NEW YORK, ET AL., Respondents-Respondents. 718, 100383/14. Appellate Division of the Supreme Court of New York, First Department. Decided May 3, 2016.