Will the termination of special ed, tenured teacher be upheld when the teacher has been found to have twisted the arms of students?

No. A special education teacher with a long, unblemished record was charged with twisting the arms of several students in separate incidents. The 3020-a arbitrator found excessive corporal punishment and terminated the teacher. The Supreme Court, Justice Margaret Chan, reversed, finding that intent to inflict pain was missing from the incidents and found that the teacher’s actions did not merit termination. ERIC HAUBENSTOCK, Petitioner, -against- CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; DENNIS WALCOTT, CHANCELLOR of NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents. Index Number: 651892/2013, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2014 N.Y. Misc. LEXIS 2691; 2014 NY Slip Op 31549(U), June 16, 2014

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

Does the termination of a dean of discipline for excessive corporeal punishment “shock the conscience” of the court?

Yes. A dean of discipline of a middle school in a gang-infested area of East New York, Brooklyn, was brought up on 3020-a charges of excessive corporeal punishment stemming from allegations that he placed an 11 year old in a headlock and threw a 13 year old against the wall. The dean denied both allegations and despite his statements the hearing found his story to be completely untrue and terminated him.

In a 3020-a hearing the Court will usually accept the facts as found by the arbitrator. The penalty, however, is held to a standard enunciated under Pell v. Board of Education. While this standard is less than precise it generally will defer to the arbitrator’s decision, after a full review of the teacher’s record, unless it “shocks the conscience” of the Court. In Principe v. Department or Education, it did.

The DOE argued that other cases of a single incident of corporal punishment which resulted in termination had been previously upheld by the Court. Both the Appellate Division, First Department and the Court of Appeals disagreed. In this case Peter Principe’s position of dean of discipline at a troubled middle school had to be taken into consideration. The cases cited by the DOE involved teachers in non-dean roles. Additionally the Appellate Division found, and the Court of Appeals affirmed, the arbitrator was totally biased against Principe and should not have discounted his whole testimony.

In the Matter of Peter Principe, Respondent, v New York City Department of Education, Appellant. 6289, 116031/09. SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 94 A.D.3d 431; 941 N.Y.S.2d 574; 2012 N.Y. App. Div. LEXIS 2490; 2012 NY Slip Op 2560 April 5, 2012, Decided.

In the Matter of Peter Principe, Respondent, v New York City Department of Education, Appellant. No. 240 SSM 41, COURT OF APPEALS OF NEW YORK, 2012 N.Y. LEXIS 3632; 2012 NY Slip Op 8568, December 13, 2012, Decided