Is there a remedy for a teacher who obtained a reversal of a U rating to have all back pay restored and references erased from his personnel file?

Yes. Glenn Storman started this proceeding in 2006. Storman, a teacher at the DOE for approximately 30 years, challenged an unsatisfactory rating he received resulting from allegations of sexual misconduct and corporal punishment made in retaliation for his verbally reprimanding a student in 2004. Storman’s teaching career has been seriously impacted by these false allegations. In an Order dated October 26, 2007, Justice Marcy Friedman granted the petition and remanded the case to DOE for further findings of fact. After a second hearing, in a letter dated June 10, 2008, DOE upheld Storman’s unsatisfactory rating. Storman then commenced a second Article 78 proceeding challenging the result of the second hearing. In an Order dated May 11, 2009, the Court granted Storman’s petition because “it was irrational for the DOE to conclude that the alleged conduct amounted to corporal punishment” and “the penalty imposed was excessive and shocking to the conscience.” This Court ordered that the unsatisfactory rating be annulled and that “this matter [be] remitted to [DOE] for further proceedings not inconsistent with the court’s decision.”

The purpose of remitting the case to DOE was for the DOE and the UFT, to take the appropriate steps to remedy the consequences of the underlying false allegations so that Storman would be properly compensated and his employment status restored. Upon remittal, the unsatisfactory rating was annulled, but no further steps were taken to compensate Storman or to remedy his employment situation. As a result, Storman moved to hold DOE in contempt. In an Order dated November 19, 2010, this Court held DOE in contempt for its willful and contumacious failure to comply with the Judgment.

The City appealed and in an Order dated May 31, 2012, the Appellate Division vacated the Contempt Order on the ground that the Judgment did not contain a “clear and unequivocal mandate.” See Storman v NYC Dep’t of Educ., 95 AD3d 776, 777, 945 N.Y.S.2d 281 (1st Dept 2012). Nevertheless, the Appellate Division granted Storman leave to clarify the Judgment to allow the Supreme Court the opportunity to clarify its order.

Justice Shirley Werner Kornreich, in a rare display of judicial anger, ruled that “By April 5, 2013, DOE shall do the following, pursuant to Article 21H of the CBA: (1) remove all references to the underlying false accusations from Storman’s personnel file; and (2) restore back pay, with interest, that Storman did not receive on account of the underlying false accusations, including any seniority salary adjustments and lost pension benefits. If a dispute arises between the parties before such date, the parties are to promptly contact the Court, and if the parties cannot agree on the proper amount of back pay owed to Storman, Storman is granted leave to move to have such calculation referred to a Special Referee to hear and report. Finally, if DOE fails to comply with this Order in good faith, which, at a minimum, shall include an in-person meet and confer with Storman about back pay, Storman has leave to move for contempt, as DOE can no longer maintain that its mandate is not clear and unequivocal.”

In the Matter of Glenn Storman, Petitioner, against New York City Department of Education, Respondent. 113652/2008, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2013 N.Y. Misc. LEXIS 12; 2013 NY Slip Op 50007U, January 3, 2013, Decided

Must a teacher, who was ordered to undergo a psychological assessment that he was free from addiction to internet pornography and not a danger to students, fully comply with the order before reinstatement?

Yes. Bruce Campbell was a 15 year, tenured teacher at Newtown High School the High School for Arts & Business. In September 2006, a school psychologist at Arts & Business High School, Simon Kopelnitsky, while searching for his documents on a computer shared by Arts & Business High School staff members in one of the guidance counseling offices noticed that “inappropriate” and “pornographic website links were listed under “recent documents,” indicating that the computer had been used to gain access to those internet sites.

He reported this finding to the assistant school principal, and in response the Office of Special Investigation began an investigation into whether there was pornographic material on the computer. OSI investigators removed the computer’s hard drive, and investigator/database programmer Giovanni Perez, after performing a forensic examination of it, found that there was inappropriate or pornographic material on it, which was “possibly downloaded under two user identifications, namely, Campbell’s, and that of school psychologist Stacy Epstein.

Under Campbell’s user id, Perez found that two pictures of a young Asian woman in a bikini bathing suit had been downloaded on June 1 and June 2, 2006. Under Epstein’s user id, more than 30 pictures of naked or partially clothed women, some engaged in sexual acts, were downloaded into temporary internet folders on March 24 and March 31, 2006.

OSI investigator Benjamin Francis interviewed Campbell in January 2007, and showed him the two pictures that Perez had located on the computer under his user id . Campbell acknowledged that he had seen those pictures and explained that he found them while doing research to find out whether, as he was informed by two male students at Newtown High School, two female students were advertising sexual services on a website.

He would not provide the names of the students to the investigator. After interviewing Campbell, and receiving statements from staff members present at the time that Kopelnitsky discovered the website links on the subject computer, Francis concluded that Campbell had violated the Board’s internet use policy “by accessing pornographic material” on the subject computer.

Following the OSI investigation, the Board commenced a disciplinary proceeding , pursuant to Education Law § 3020-a.

A hearing on the charges was held before Arbitrator James Darby.

After considering all the evidence, Darby found that the Board failed to demonstrate by a preponderance of the evidence that Campbell was guilty of the charges presented in Specifications 1 and 2, which included viewing and downloading pornographic photographs on March 24 and March 31, 2006.

In so finding, the hearing officer noted that the only evidence connecting Campbell to the allegations in Specifications 1 and 2 was that he was at the school on the dates in question. Evidence showed that the pictures had been accessed under Epstein’s id, and Campbell testified that he did not ever use her id and did not know what it was. Perez testified that those pictures were not downloaded, and possibly were pop-ups not intentionally viewed or accessed by the computer user. Evidence also showed that both March 24 and 31 were Fridays, when Campbell worked out of the principal’s office, and not in Room102B.

Darby then concluded that Campbell was guilty of the charges presented in Specifications 3 and 4, that is, viewing and downloading two “inappropriate” photographs onto the school computer on June 1 and 2, 2006. Campbell does not deny that he viewed and downloaded two pictures, and viewed hundreds of other similar pictures, as part of his own investigation into allegations that female students were selling sexual services on the internet. Although Campbell claimed that he was doing this to help students, the hearing officer found his explanation that he was conducting his own investigation unconvincing.

In determining what punishment was appropriate , the hearing officer considered, among other things, Campbell’s 15-year tenure without any prior discipline, that only two of the four charges were sustained, and the lack of information about the likelihood of a reoccurrence , and concluded that Campbell “shall be suspended without pay for the remainder of the 2008-2009 school year, or 90 days, whichever is longer;” that Campbell’s internet use shall be monitored by the Board during the 2009-2010 school year, and any substantiated allegations that he violated the Internet Use Policy will result in his termination, subject to his CPLR § 3020-a rights; and that Campbell’s return to work shall be conditioned upon his submitting to the Department’s Office of Legal Services a written assessment from a licensed therapist.

The assessment shall indicate that the therapist has read this Opinion and Award, has evaluated Campbell, and that he or she concludes that Campbell is not addicted to Internet pornography and that his viewing of Internet pornography, as described herein, will not adversely affect his ability to teach and will not place students at risk.

The DOE, seeking Campbell’s termination and not contesting Darby’s finding, appealed the 3020-a penalty and argued that it exceeded the arbitrator’s authority.

Justice Joan Madden disagreed and confirmed the award in April 2010.

Campbell attempted to comply with Darby’s order and sought reinstatement after he obtained a therapist’s evaluation. The DOE rejected the evaluation since, it claimed the evaluation only stated that in his report that he could not determine whether Campbell was addicted to pornography, characterizing such determination as “nearly impossible,” and that he was only able to state that there “is no evidence that Campbell has an internet addiction.” In addition, the therapist’s conclusion that viewing internet pornography would not put students at risk or affect his ability to teach appears to be based solely on Campbell’s lack of recorded history of prior inappropriate behavior (a fact that was known by Darby) and the “lack of information” indicating that Campbell has an impairment that would interfere with his ability to teach.

Campbell sought reinstatement from Court. Justice Madden, agreeing with the DOE’s interpretation of the therapist’s evaluation, denied Campbell’s application.

In the Matter of the Application of THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and JOEL KLEIN, as Chancellor of the Board of Education of the City of New York, Petitioners, -against – BRUCE CAMPBELL, Respondent. Index No. 400780/09, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 32018U; 2011 N.Y. Misc. LEXIS 3604, July 13, 2011, Decided July 19, 2011, Filed.

Observation: It appears that Campbell is caught in a classic bind. The order that he be determined not to be addicted to internet pornography and that he is not a danger to children is a tall order for a therapist to opine since the basis of any therapist’s opinion would be the self-reporting of the patient. While Madden has confirmed Campbell’s order denying his termination she has made reinstatement an extremely difficult hurdle.