Can a hearing officer’s finding in a termination proceeding be upheld where it partially relied upon a teacher’s excessive absences with no proof that it limited the effectiveness of the teacher’s performance?

No. Evan Mirenberg, an elementary school teacher was terminated after a 3020-a hearing for submitting forged physician’s notes and being excessive absent. Mirenberg offered psychological evidence that he suffered from panic attacks and an anxiety disorder and it affected his judgment in deciding to forge the physician’s notes.

The DOE moved to dismiss the proceeding.

Justice Lucy Billings denied the motion and ordered that the DOE respond to the petition. In her opinion Justice Billings found that without a complete transcript of the proceeding it was not possible to determine if, pursuant to Chancellor’s  Regulation C-601 Mirenberg’s absences were “so numerous as to limit the effectiveness of service” since only such a finding could support disciplinary action.

Additionally Billings could not determine whether the penalty of termination could be supported solely upon a finding of Mirenberg’s dishonestly since the hearing officer made no such determination.

In the Matter of the Application of EVAN MIRENBERG, Petitioner, For a Judgment Pursuant to Article 75 of the C.P.L.R. v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent. Docket No. 653846/2015. Supreme Court, New York County. March 30, 2017.

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