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.

Will the suspension of teacher for speaking with the subject student of a corporeal punishment matter be upheld where the teacher was directed not to have contact with the student however the student was not immediately removed from the class?

No. The petitioner, a tenured teacher in the Roosevelt Union Free School District, was charged with misconduct for allegedly inappropriately putting his hands on a student, inappropriately attempting to grab candy away from the student, and ignoring a directive from the school principal not to discuss the allegations against him with the student, and directing the student to sign a prepared statement recanting the allegations. The charges proceeded to arbitration, resulting in a determination which suspended the teacher.

After the suspension was upheld by the Supreme Court, Nassau County, the teacher appealed to the Appellate Division, Second Department. The Appellate Division found adequate evidence in the record that the teacher inappropriately attempted to grab candy from the student and that he committed conduct unbecoming a teacher and was insubordinate when he directed the student to sign a prepared letter.

However, the Appellate Division found that there was no evidence to support the allegation that the teacher inappropriately put his hands on the student nor that he was insubordinate by discussing the incident with the student because the student was not immediately removed the class.

The matter was remitted to the arbitrator “for reconsideration of the penalty imposed.”

In the Matter of DOUGLAS S. WHITE, Appellant, v. ROOSEVELT UNION FREE SCHOOL DISTRICT BOARD OF EDUCATION, Respondent, NO. 8128/13, 2014-04134, Appellate Division of the Supreme Court of New York, Second Department. Decided February 22, 2017.

Can the argument that a tenured teacher was targeted by her administration for being absent for 43 days due to a documented medical condition be the basis to overturn an arbitrator’s decision to terminate her employment?

No. Petitioner, a first grade and kindergarten teacher at an elementary school in Brooklyn was charged with failing to properly and effectively plan her lessons, that she failed to pick up her students in a timely fashion on a particular day, that she was excessively absent and that she failed to implement help that her supervisors provided to her.

A hearing was conducted before an arbitrator who found “that petitioner was incompetent without reasonable expectation of rehabilitation, [and] determined that the appropriate penalty would be termination of the petitioner’s employment.

On appeal petitioner claimed that, among other points, she was targeted for termination by her administration because she had a documented medical condition and hospitalization that caused her to lose 43 days of work.

Judge Arthur F. Engoron of the Supreme Court, New York County found her argument and that her termination “shocked the conscience” to be unavailing.

Judge Engoron wrote, “This court finds that the penalty of termination was not disproportionate with the misconduct and cannot be said to shock the conscious or any senses of fairness. Thus, the court is constrained to find that the petitioners dismissal, while severe, cannot be vacated or remanded as a matter of law. [citation omitted].

JEAN-BAPTISTE, MARJORIE, Petitioner, v. THE DEPARTMENT OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Respondent. Docket No. 652683/2016, Sequence No. 001. Supreme Court, New York County. July 21, 2017. Filed: July 25, 2017

Is a teacher, whose probationary term expired while sitting in the rubber room, entitled to a 3020-a hearing before being terminated?

Yes. Petitioner, a special education teacher from 2011 through June 2016  was reassigned to a “rubber room” pending an investigation in March 2015. She claims that although some of the allegations against her were substantiated, she was placed back in a teaching position on March 7, 2016 and went on leave until the end of the school year in April 2016. She was terminated from employment, without a hearing, on June 15, 2016.

The DOE argued that although her extension of probation had lapsed she was still on probation since she was not preforming teaching duties in the rubber room.

The Court rejected the DOE’s argument holding that tenure by estoppel applied and the petitioner could not be dismissed without a 3020-a hearing. While the Court ordered that the petitioner be restored to her position with back pay it noted that there were serious allegations against the petitioner and her ruling should not be misinterpreted to be seen as protecting an allegedly incompetent teacher.

In the Matter of the Application of CHERYL WILSON, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, Respondent. Docket No. 158592/2017, Motion Seq. No. 001.2017 NY Slip Op 31273(U), Supreme Court, New York County. June 12, 2017.

Can a school district constitutionally terminate teachers for ineffective performance based on a secret value-added algorithm?

No. The Houston Federation of Teachers brought an action against the Houston Independent School District based on the claim that a teacher evaluation system based, at least partly on student exam scores, violated disciplined teachers’ procedural due process rights under the 14th Amendment.

Student exam scores were subjected to a “secret” algorithm to determine whether students’ performance was increased. This algorithm was the proprietary property of a private computer firm. Affected teachers had no right to view or test the computer code making review of their scores nearly impossible.

While the plaintiff challenged the evaluation system on both procedural and substantive due process claims the Federal District Court in the Southern District of Texas held that the refusal to permit teachers to fully review their scores might deprive them of a property right in violation of their procedural due process rights and denied the District’s motion for summary judgment.

The Court held, “On this summary judgment record, HISD teachers have no meaningful way to ensure correct calculation of their EV AAS scores, and as a result are unfairly subject to mistaken deprivation of constitutionally protected property interests in their jobs. HISD is not entitled to summary judgment on this procedural due process claim.”

Houston Federation of Teachers, Local 2415, et al., Plaintiffs v. Houston Independent School District, Defendant, United States District Court, Southern District of Texas, Civil Action H-14-1189 (May 4, 2017)