Can a Chapter Leader, excluded from his school pending disciplinary charges, be prevented from attending School Leadership Team meetings?

Yes. Francesco Portelos, the duly elected Chapter Leader at IS 49 in Staten Island, was reassigned pending a SCI investigation and, by letter, notified that he was not to return to IS 49 without prior written permission and that any school activities he had participated in would remain suspended until the resolution of the matter.

As Chapter Leader Portelos is a mandated member of the School Leadership Team and commenced an Article 78 proceeding to challenge his exclusion from the Team. Justice Cynthia Kern initially ruled that the petition was time-barred since it was filed almost one year after he was excluded from the meetings.

Kern ruled that even if the petition was timely she would denied the relief requested because DOE’s policy of exclusion was rational and in accordance with its policies and procedures. Chancellor’s Regulation A-655 provides that mandatory members attend the meetings the regulation “does not confer a right upon such member if they are prohibited from entering the school or participating in school activities due to administrative reassignment and/or pending charges of misconduct.”

Portelos also argued that the school violated the Open Meetings Law, POL Section 103 by excluding him. Kern ruled that School Leadership Teams were advisory in nature and not subject to the Open Meetings Law.

Portelos v. NYCDOE

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Will a U-rating stand when one of three negative incidents is based on a finding determined to be arbitrary and capricous?

No. David Deutsch, a highly respected physics teacher at Manhattan Center for Science and Mathematics received a U-rating from his supervisor based on 3 separate incidents. Two of the incidents involved cursing and aggressive behavior and failure to follow a directive when asked to go to a department meeting. The incident involved an allegation that Deutsch failed to follow school protocol for notice in requesting a personal day off.

While the Chancellor’s representative, Shael Polakow-Suransky, affirmed the principal’s U-rating he wrote that Deutsch has failed to show professional growth.

Deutsch appealed. Justice Michael D. Stillman found that the first two incidents were valid but that the third incident must be dismissed because it was arbitrary and capricious that Deutsch was to follow a protocol in requesting a personal day when, in fact, such policy was not shown to exist. Additionally when Polakow-Suansky affirmed the U-rating there was nothing in the record to demonstrate any opportunity for Deutsch to show professional growth nor were any opportunities offered. The U-rating was annulled.

Deutsch v. NYCDOE (11/7/13)

Will a sexual misconduct complaint justify a 20 year tenured teacher’s termination?

Yes. Luis Villada, a tenured teacher assigned to Multicultural High School was the Chapter Leader at his school when he was charged with sexual misconduct upon a fellow teacher and interfering with an OSI investigation. The arbitrator, Haydee Rosario found that the allegations of hugging and kissing a fellow teacher on her mouth were substantiated. After applying the Pell v. Board of Education standard to the DOE’s request to terminate Vilada, the arbitrator found that while Vilada’s record was unblemished after over 20 years the harm that his sexual misconduct caused his colleague warranted his termination.

Justice Margaret Chan affirmed. She found that the penalty of termination did not shock the conscience or was arbitrary and capricious.

Luis Vilada v. City of New York

Will the Court uphold an arbitrator’s imposed fine for engaging in protected 1st Amendment free speech activity?

No. Richard Santer, a teacher employed by the East Meadow Union Free School District engaged, with other teachers, in a peaceful protest while negotiations for a new contract were underway. The protest involved picketing in front of a middle school which included parking their cars in front of the school and display their picket signs in their cars. This area was also used by the middle school’s students’ parents to drop off their children for school.

None of the teachers blocked either of two curb cuts in front of the school but according to the principal the protesting teachers’ parking caused traffic to become congested creating a safety concern for students being dropped off in the middle of the street.

No school official asked the teachers to move their cars during the protest, and no child was injured.

The school district brought disciplinary charges against several teachers under 3020-a and after an arbitration Santer was fined $500. His appeal was denied in Supreme Court.

On appeal to the Appellate Division Santer prevailed. The Appellate Division found that Santer’s free speech rights were violated and by bringing him up on disciplinary charges the school district, in effect, chilled free speech rights of all teachers concerning a matter of public concern.

N.B. In a case brought to the same Appellate Division, but a different panel, concerning the same incident but with a different teacher the Court held that the arbitrator was reasonable in upholding the discipline. In that case, Matter of Trupiano v Board of Educ. of E. Meadow Union Free School Dist., 89 AD3d 1030, 933 N.Y.S.2d 106) the teacher received a counseling memo. The Santer Court reasoned that Trupiano was not controlling since Trupiano did not raise a First Amendment claim in her petition.

Another teacher who was fined $1000 for the same incident was denied her appeal at the Supreme Court level. The Court there found that she engaged in an activity that endangered student safety. She did not appeal further. Barbara Lucia, Petitioner, against Board of Education of the East Meadow Union Free School District, Respondent. 32 Misc. 3d 1208A; 932 N.Y.S.2d 761; 2011 N.Y. Misc. LEXIS 3178; 2011 NY Slip Op 51210U (Nassau Sup.Ct., 2011)

In the Matter of Richard Santer, appellant, v Board of Education of East Meadow Union Free School District, respondent. (Index No. 1997/10), 2010-11006, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT, 2012 N.Y. App. Div. LEXIS 8698; 2012 NY Slip Op 8750, December 19, 2012, Decided.

Does a six-month suspension, without pay, coupled with DOE paid for classroom management classes warrant a 3020-a award be remanded?

No. Jane Lewinter, a tenured science teacher taught for three years at East Bronx Academy. During her first year she was rated satisfactory. During her second year she suffered from intestinal problems as was absent from work for 2 separate 5 week periods and underwent surgery.

Starting with her return from her first Lewinter’s principal began frequent classroom observations accompanied by a large number of letters to her file. She was given an unsatisfactory rating.

The third year she received numerous observations and at least 73 letters to her file. She was charged with 12 charges which dealt with various classroom management and teaching effectiveness allegations. The matter was brought before Arbitrator Stephen m Bluth who found that half of the charges were either not actionable against Lewinter or lacked sufficient evidence to support.

In fashioning an award Bluth rejected DOE’s dismissal request and suspended Lewinter for six months without pay. Additionally he ordered that the DOE pay for classroom management classes on behalf of Lewinter and required that she attend.

Lewinter appealed to the New York State Supreme Court, Justice Judith J. Gische. Justice Gische found Bluth’s decision and award to be “Solomon-like.” She found that Lewinter’s satisfactorily rated first year at East Bronx Academy irrelevant and that Bluth’s award did not shock the conscience. The award was upheld.

Jane LEWINTER, Petitioner for an Order pursuant to Article 75 of the Civil Practice Laws and Rules, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent., 36 Misc.3d 1213(A), 2012 WL 2877619 (N.Y.Sup.), 2012 N.Y. Slip Op. 51264(U), No. 100029/11. Supreme Court, New York County, New York. July 11, 2012.

Is a probationary teacher who received a U-rating required to exhaust all administrative remedies before appealing to Court?

Yes. Leonette Belfield worked for over 10 years as a paraprofessional when she entered the DOE’s program, “Pathways to Teaching,” to become a teacher in 2006. She received 3 consecutive S-ratings and was given a U-rating for the 2009 to 2010 school year and terminated. (It is not clear why Belfield was still on probation during her fourth year teaching).

Deciding not to wait until her U-rating appeal was decided by the Chancellor, Belfield commenced a proceeding seeking reversal of her U-rating and reinstatement. It was undisputed that Belfield did not exhaust her administrative remedies.

Without deciding on the merits Justice Barbara Jaffee dismissed her application relying on Belfield’s failure to wait for the Chancellor’s decision in her U-rating appeal.

In the Matter of the Application of: LEONETTE BELFIELD, Petitioner, -against- JOEL KLEIN, as the Chancellor of the Department of Education of the City of New York, CITY OF NEW YORK, and NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents. For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules. Index No. 114094/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 31862U; 2011 N.Y. Misc. LEXIS 3389, July 1, 2011, Decided

Observation: The decision and supporting documents do not reveal answers to some important questions about the case. Although the Court wrote, in its decision, that Belfield had requested reinstatement, this was not requested in her petition. It is not clear when Belfield was terminated but generally a proceeding to challenge a probationary termination has a four month statute of limitations measured from the effective date of termination. To challenge the U-rating and the subsequent placement on the DOE’s ineligible list requires filing the proceeding in Court within four months of the Chancellor’s decision in the U-rating appeal which did not occur at the time of the filing of Belfield’s petition.

Does dismissal of a teacher found to have sexually harassed and verbally abused one student for one single incident shock the conscience of the Court?

No. Reinaldo Palencia, a twenty-two year veteran teacher, most recently from Martin Van Buren High School, was found by arbitrator Arthur Riegel to have, on one occasion, touched the shoulder of a female student and whisper in her ear words to the effect that if he were the student’s age he would fuck her.

Palencia raised several issues but the Court focused on whether Palencia’s good disciplinary history warranted his termination for what was basically a single incident of verbal abuse.

The Court quoted Riegel’s decision and agreed that Palencia’s action constitute[d] “classical sexual harassment” and “extreme verbal abuse.”

The Court continued, “Although termination is a severe penalty, it is
proportionate to the egregious, highly inappropriate nature of petitioner’s behavior, notwithstanding petitioners history with DOE.”

Reinaldo Palencia, Petitioner, against The New York City Board/Department of Education, Respondent. 112557/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 50905U; 2011 N.Y. Misc. LEXIS 2381, May 13, 2011, Decided

Can a 3020-a decision be reversed as too lenient?

Yes. Douglas Coleman, a 25 year tenured Social Studies teacher employed by the Dundee Central School District was charged with various specifications characterized as conduct unbecoming a teacher and insubordination. Dundee alleged that Coleman had given an exam in one of his classes which, among other things, “contain[ed] inappropriate and suggestive vocabulary words including “yu dick”, “grandma dick” and “Mrs. Dick” …. The second group of charges is that one of the students in the aforementioned class was a student with a disability of high-functioning Asperger’s Syndrome, and on her test, Coleman had captioned two cartoon figures of aliens, with the student’s name by one figure and her personal tutor’s name by the other . The third group of charges is that in September of 2007, Coleman attempted to bypass the established District procedure with respect to the utilization of movies within his class” when he showed the movie, “Attica.”

Coleman had been given counseling memos when these incidents occurred and the hearing officer, having found that these incidents were not repeated, dismissed the charges since the school district had already decided how to deal with these infractions. The hearing officer, based on other charges then decided to suspend Coleman for 6 months but required that the District continue to pay for his medical insurance. The District appealed to State Supreme Court.

Justice W. Patrick Falvey of Yates County Supreme Court ruled that the suspension with medical insurance was not valid under 3020-a since the statute contemplated suspensions with no payments. Additionally it was wrong for the hearing officer to dismiss the charges as the District did not waive its right to serve charges where counseling memos were previously utilized.

Justice Falvey remitted the matter back to the District to reconsider the dismissed charges and penalty.

Upon remand the hearing officer dismissed many of the charges again but this time found Coleman guilty of a few of the formally dismissed charges. He imposed the same penalty.

Justice Falvey found that ” the Hearing Officer’s decision regarding penalty lacks a rational basis, due to his improper reliance on the premise that Dundee had to prove Coleman repeated the misconduct that gave rise to the counseling memoranda, before he would consider Dundee’s request for a penalty.”

Coleman 1, In the Matter of the Application of the Board of Education of the Dundee Central School District, Petitioner, against Douglas Coleman Respondent, 2010-0248,  SUPREME COURT OF NEW YORK, YATES COUNTY, 2010 NY Slip Op 51684U; 29 Misc. 3d 1204A; 2010 N.Y. Misc. LEXIS 4689

 

Coleman II, Board of Education of the Dundee Central School District, Petitioner, against Douglas Coleman, Respondent, 2011-0011, SUPREME COURT OF NEW YORK, YATES COUNTY, 2011 NY Slip Op 21157; 2011 N.Y. Misc. LEXIS 1999,  April 29, 2011, Decided

Will a one year suspension for verbal abuse to fellow staff members, parents and students be upheld?

Yes. Leslie Drucker is a tenured special education teacher at Unity High School with previous employment as an OSI investigator. She was served 3020-a charges for various verbal abuse allegation as well as “knowingly and inappropriately inject[ing] herself into a confidential investigation by the Commissioner of Special Investigations.

The arbitrator found against Drucker on 4 of the 5 charges and suspended her, without pay, for one year after taking into consideration her satisfactory employment history and evidence that she had voluntarily helped students.

Although Drucker raised issues concerning the failure of the DOE to vote for probable cause and the alleged bias of the arbitrator, Justice Barbara Jaffe found no due process violations and found her one year suspension did not shock the conscience of the Court. The petition was dismissed.

In the Matter of the Application of LESLIE DRUCKER, Petitioner, for a judgment pursuant to Article 75 of the C.P.L.R. -against- THE NEW YORK CITY BOARD/DEPARTMENT OF EDUCATION, Respondent. 112638/10 SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 31313U; 2011 N.Y. Misc. LEXIS 2366, May 13, 2011, Decided

Can the DOE withhold legal representation in a civil suit brought against a teacher while a disciplinary proceeding is pending?

Yes. While fortunately not a frequent occurrence, our students and others do sue teachers and other school staff members for injuries allegedly caused by school staff during the course of their employment. General Municipal Law Section 50-k and Education Law 3028 provide that city employees have the right to have the Corporation Counsel represent them and the city pick up any resulting judgment if the employee was acting within the “scope of his employment.”

The critical issue is what was in this “scope” as an employee, for example committing a criminal assault on student would not be covered under this law.

Kevin Martin is a tenured teacher and was assigned to Aspire Preparatory School, MS 322X. While teaching Martin tried to stop a student from disrupting the class. After each request by Martin to the student to stop disrupting the class the student verbally responded with profanity. Martin told the student to go the dean.

According to Martin’s petition, “As a disciplinary measure and the course and scope of Martin’s employment, Martin then removed the aforementioned student chair from beneath the feat of student S[…], whereupon Martin lost control of the chair which fell to the floor at student S[…]’s feet.”

The student and his mother started a civil suit against Martin and Martin requested legal representation which was denied due, in part to an OSI report which found Martin had thrown the chair.

Justice Alice Schlesinger of New York Supreme Court had no problem finding that Martin’s action was within the scope of his employment as disciplinary actions against students are clearly envisioned in the statute. The Court nonetheless after determining that the timeline was suspect (the incident occurred in 2008, the civil suit filed in 2009 and the OSI investigation and charges against Martin were done in 2010) found that there was nothing arbitrary or capricious in the denial of legal representation during the course of the disciplinary proceedings. The Court advised that Martin could commence his own civil action for attorney fees and resulting judgment in the future, if the facts warrant.

In the Matter of KEVIN MARTIN, Petitioner, -against- BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, JOEL J. KLEIN, as Chancellor of the City School District of the City of New York, and the CITY OF NEW York, Respondents, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 30983U; 2011 N.Y. Misc. LEXIS 1795, April 12, 2011