Can a tenured teacher who retires while facing 3020-a charges get his teaching license restored?

No. Wayne Crawford Jefferson, a tenured NYC teacher, retired while charges were pending against him. Pursuant to Chancellor’s Regulation C-205 resigning or retiring while charges are pending causes the automatic termination of a teacher’s NYC teaching license. Jefferson sought to get his license reinstated and brought an Article 78 proceeding in Queens Supreme Court and appealed to the Appellate Division, Second Department. Both courts rejected his arguments that he was deprived of his constitutional rights and that he was unaware of the regulation.

Jefferson’s state certification was not addressed in these proceedings. The loss of a NYC teaching license does not automatically revoke state teaching privileges. A separate proceeding is required to remove State teaching privileges.

Matter of Jefferson v New York City Bd. of Educ.
2017 NY Slip Op 00166
Decided on January 11, 2017
Appellate Division, Second Department

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.

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.

IN THE MATTER OF THE APPLICATION OF FELIX BERIGUETE, 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. THE NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent. 654272/15.
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)

Will a challenge to a teacher’s termination be sustained when the DOE utilized its “streamlined procedures” to dismiss a teacher after two consecutive ineffective ratings?

No.  Since becoming a NYC DOE teacher in 2001 petitioner received satisfactory ratings until 2009. Thereafter she received unsatisfactory rating and when the HEDI system was implemented received two ineffective ratings in a row.

The petitioner received observations in the second year of the HEDI ratings by both her principal and an independent validator who both confirmed her overall ineffective rating even though petitioner was rated effective for her student performance measures.

An arbitrator, after a hearing of three witnesses, an assistant principal, the validator and the petitioner herself, found petitioner to be ineffective and ordered her to be terminated from DOE employment.

Petitioner appealed to the Supreme Court, New York County. Petitioner argued that the arbitrator’s use of the presumptions which shifted the burden in the new expedited termination cases based on two consecutive ineffective ratings was improperly applied in her case. The Court found that while the arbitrator was not exact in her statements about the new evaluation scheme, overall it could not be said that her decision was irrational or that it violated public and policy and lacked merit.

Justice Edmead found that the new evaluation scheme was proper and was properly applied in this case and affirmed the termination.

2016 NY Slip Op 26179, IN THE MATTER OF THE APPLICATION OF NELLINE DOUGLAS, Petitioner, v. THE NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent. Supreme Court, New York County. Decided June 6, 2016.

Can a teacher who was acquitted at a criminal trial use the sealing provisions of the Criminal Procedure Law to shield from evidence sought to be introduced at her DOE termination hearing?

No. Petitioner, a middle school teacher, was arrested and tried for an alleged sexual relationship she had with a 12 year old student. She was acquitted of all criminal charges and her criminal record was sealed, automatically, pursuant to the Criminal Procedure Law.

Shortly thereafter petitioner was served with DOE charges which mimicked the criminal prosecution. At the 3020-a hearing petitioner maintained that evidence which was obtained by the DA or otherwise used at her dismissed criminal trial could not be introduced because the sealing provisions of the Criminal Procedure Law shielded their use at the Departmental trial.

This material included bank records, telephone records (over 8,000 text messages between the two), motel records, a video of petitioner taken on the Student’s cell phone, DNA analysis (showing that the Student’s saliva were found on petitioner’s bedspread), the anticipated testimony of the prosecuting ADA (who was expected to testify as to admissions made by petitioner at the criminal trial), and the testimony of an NYPD Detective (who was expected to testify as to the chain of custody regarding the above evidence). Respondent opposed, arguing that the evidence it was seeking to introduce did not constitute “official records and papers” as defined under 160.50.

The arbitrator granted the motion to preclude as to the Detective’s testimony, finding such testimony unnecessary, but denied the remainder of the motion. She found the following as justifications for admitting the controversial evidence: the bank, phone and motel records were created by private institutions in the regular course of business; the cell phone video was not recorded by a law enforcement agent; and the DNA analysis was prepared by an agency separate from the NYPD or District Attorney’s Office. As to the ADA, the arbitrator permitted her to testify only as to admissions by the petitioner at the criminal trial (no testimony was permitted as to anything else regarding the criminal investigation or trial).

The arbitrator sustained the charges and terminated her. The Petitioner appealed to the Supreme Court, New York County.

Justice Alice Schlesinger found that there was enough evidence to sustain the arbitrator’s findings without the deciding the sealing issue. However, Justice Schlesinger found, “But even assuming that the controversial evidence constituted “official records and papers” and was sealed under CPL 160.50, and admittance constituted a violation of         this statute,the Court of Appeals has held that a violation of CPL 160.50, without more, does not require suppression of such evidence or implicate constitutional considerations such as due process, or warrant annulment of a respondent’s determination of termination despite a  prior acquittal of the same or similar charges in a criminal proceeding. See Charles Q. v. Constantine, 85 NY2d 571, 575 [1995] (state trooper’s termination for sexual misconduct upheld despite prior acquittal in criminal proceeding and improper consideration of records sealed under CPL 160.50 when “respondent’s determination is supported by substantial evidence in the record, including the complainant’s own testimony, and there is no indication that the admission of the erroneously unsealed evidence operated to   deprive petitioner of a fair hearing.”);

 

2016 NY Slip Op 50979(U). IN THE MATTER OF THE APPLICATION OF CLAUDIA TILLERY, Petitioner, v. THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, Respondent.651804/15. Supreme Court, New York County. Decided June 24, 2016.