Can a school district withhold FOIL email disclosure without an in camera review?

No. The Connetquot (Suffolk County) Teachers’ Association filed to Freedom of Information Law (FOIL) requests for two categories of emails between the District Superintendent and the STEM chairperson and an assistant superintendent concerning elementary science courses and under enrollment of the AP Chemistry course.

The district either refused to turn over certain records or supplied redacted records claiming the intra-agency exemption and federal student privacy concerns in the production of the records. Under the inter-agency exemption public entities are exempt from disclosure of records which reflect the deliberative process in policy making.

The Court, after finding that the District’s support of its position was not specific enough ordered the production of records, in camera (by the Court in its chambers), to determine if the records should be disclosed. The Court wrote, “this Court has been deprived [of] the relevant and material information to make a reasoned judgment on whether the material sought to be protected is truly inter-agency or intra-agency or otherwise pure personal information properly withheld under the FOIL statute. Without this information, this Court would only be speculating whether respondent has properly discharged its duty under FOIL.”

In the Matter of the Application of ANTHONY F. FELICIO, JR., as President of the Connetquot Teacher’s Association, Inc., Petitioner, For Relief Pursuant to Article 78 of the New York Civil Practice Law and Rules v. CONNETQUOT CENTRAL SCHOOL DISTRICT OF ISLIP, Respondent. Docket No. 08339-2016, Motion Seq. No. 001 Mot D. Supreme Court, Suffolk County. 2017 NY Slip Op 31052(U) Motion Submit June 1, 2016. May 3, 2017.

Will the termination of a tenured teacher who has a 13 year unblemished record be reversed after a finding that she escalated a student confrontation?

No. Petitioner was charged with escalating a confrontation with a student by yelling expletives and threatening him with violence. The student was removed and later that day petitioner threatened the student with having her husband, an armed police officer, kill him.

The following day petitioner brought her husband to school but the student was not present as he was suspended. The Hearing Officer, despite reviewing petitioner’s 13 year unblemished record found the incident so egregious since it “ conveyed a message to other students that she could not rely upon school authorities to control threats of violence against a teacher by a student.”

Justice Lynn Kotler and the Appellate Division, First Department agreed.

The Appellate Division added, in their unanimous opinion, that “Petitioner also showed no remorse nor appreciation for the seriousness of her conduct  to support a finding that she would not engage in similar conduct if faced with such circumstances in the future. Petitioner declined to take the stand, and thus, the hearing officer was permitted to draw the strongest inference against her permitted by the record.” [citations omitted]

IN RE SUZANNE VARRIALE, Petitioner-Appellant, v. CITY OF NEW YORK, ET AL., Respondents-Respondents. 3572, 652189/14., 2017 NY Slip Op 02513.  Appellate Division of the Supreme Court of New York, First Department. Decided March 30, 2017


Was a tenured teacher’s conduct so egregious that, despite his 28 year unblemished record, his termination will stand?

Yes. Petitioner, a tenured teacher assigned to a co-teaching position for special education pre-k students was charged with several specifications involving forcibly restraining students, rolling a student off of a cot, inappropriately grabbing a student, spoke out during a professional development session, threatened a student with calling the police to put him in jail and that he received 10 disciplinary letters to his file.

While petitioner disputed the allegations he argued that the penalty of termination was not indicated since he had a 28 year record without a disciplinary history. The Hearing Officer disagreed and terminated him.

Upon appeal Justice Lynn Kotler affirmed the termination. Justice Kotler wrote, “petitioner’s length of employment does not outweigh the egregious nature of his conduct which was not merely an isolated incident but rather, can fairly be characterized as a pattern of irresponsibility, disregard, and poor judgment.”

PETER COHEN, v. THE CITY OF NEW YORK et al. 2017 NY Slip Op 30323(U), Docket No. 651730/16, Mot. Seq. No. 001. Supreme Court, New York County. February 17, 2017.

Does a teacher’s conduct shock the conscience when the proven allegations amount to lax bookkeeping rather than a venial scheme?

No. Petitioner, a special education teacher assigned to home instruction in Far Rockaway was terminated, after a 3020-a hearing, for submitting inaccurate timesheets for sessions she did not conduct in wake of Hurricane Sandy. Petitioner admitted to submitting inaccurate timesheets but explained she had prefilled the timesheet with a student whose home was destroyed and taught a different student.

The Appellate Division, First Department held that termination “ is disproportionate to the level of petitioner’s misconduct and exceeds the standards that society requires to be applied to this offense.” The Court further observed that petitioner received no benefit for her inaccuracies and that the DOE offered no clear protocol to deal with home instructed students who were negatively impacted by the hurricane.

Justice Andrias wrote a dissent in which he opined that there was more than enough evidence of petitioner’s fraudulent intent especially since petitioner had failed to notify her supervisor of the child’s move to Brooklyn. Additionally Justice Andrias observed that this was not a single lapse of judgment but showed that for over two months petitioner failed to provide the affected student with needed services.

IN RE AMIRA BEATTY, Petitioner-Appellant, v. CITY OF NEW YORK, ET AL., Respondents-Respondents. 3043, 652103/14. 2017 NY Slip Op 01628, Appellate Division of the Supreme Court of New York, First Department. Decided March 2, 2017.

Can a 3020-a hearing determination become the basis for the denial of unemployment insurance?

Yes. Claimant, an ATR who had been dismissed for engaging in misconduct, conduct unbecoming and/or prejudicial, insubordination and violating DOE rules filed for unemployment insurance. The Unemployment Insurance Appeal Board denied the claim and the Appellate Division, Third Department agreed.

The Court found that claimant was given a full and fair opportunity to defend herself at the 3020-a hearing and was represented by counsel. The Unemployment Board’s reliance on the facts of this hearing was proper and claimant was collaterally estopped from relitigating the matter.

In the Matter of the VERONICA TELEMAQUE, Appellant. COMMISSIONER OF LABOR, Respondent. 2017 NY Slip Op 02109 Appellate Division of the Supreme Court of New York, Third Department.  Decided March 23, 2017.

Can the DOE consider a problem code in future hiring decisions which was placed in a teacher’s file from a prior probationary termination when the U-rating from that termination was reversed on appeal?

Yes. Petitioner, a probationary assistant principal,  received a U-rating after findings of misconduct were made against him. At the time a problem code was placed on his file. On appeal the misconduct findings were reversed and the Court, in 2011, ordered that U-rating and the problem code be removed from his file “to the extent that it was supported by the unsubstantiated conduct.”

In 2014 the petitioner brought a second proceeding challenging the DOE’s maintaining the problem code and claimed that it made him ineligible for promotion.

The DOE argued that the 2011 decision only removed the problem code in so far as it was based on the unsubstantiated misconduct but otherwise had a right to maintain the code.

The Appellate Division, First Department agreed with the DOE holding that petitioner’s discontinuance of probation, which was upheld in the prior proceeding, could be maintained in his file since it was not based on unsubstantiated conduct and was never challenged by petitioner after it was affirmed by the prior court.

The Court wrote, “Even if his job prospects are more limited, petitioner is not prohibited from seeking a position that does not require a certificate of eligibility, i.e., a non-supervisory position; nor is he prohibited from applying to employers outside respondent’s authority.”

IN RE MILCIADES PEPIN, Petitioner-Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent-Respondent. 3336, 100727/14. Appellate Division of the Supreme Court of New York, First Department. Decided March 7, 2017.

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.