Must the DOE return a vindicated teacher to her original school after all disciplinary charges were dismissed?

Yes. Judith Merenstein, a tenured elementary school teacher for almost 20 years was served with charges that included a U-rated observation by the LIS. The arbitrator who heard the case found the LIS and others not credible and part of a campaign to discredit and terminate Merenstein. All charges were dismissed.

Subscribing to the theory that no good deed goes unpunished the DOE reinstated her to a different school. She promptly filed a proceeding in Court claiming that the State Education Law provided that she was to return to her original school and limited the power of the DOE to reassign her. The DOE moved to dismiss Merenstein’s petition and Justice Lucy Billings denied the motion and ordered the DOE to respond to her petition.

Billings found that the DOE had the right to reassign Merenstein to a different workplace (the rubber room) while charges were pending but State Law was clear that she had to be reinstated to the same school if charges were dismissed.

Observation: The decision does not deal with the impact of the CBA and exhaustion of the grievance procedure.

In the Matter of the Application of JUDITH MERENSTEIN, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules – against – BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and DENNIS M. WALCOTT, in his official capacity as CHANCELLOR of the CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Respondents, Index No. 111208/2011, SUPREME COURT OF NEW YORK, NEW YORK COUNTY 2012 N.Y. Misc. LEXIS 5468; 2012 NY Slip Op 32844U October 18, 2012, Decided. November 13, 2012, Filed.

Will a termination after a 3020-a hearing, based on a finding of probable cause by a principal, be sustained?

Yes. Malcolm Menchin, a tenured teacher at Performance Conservatory High School in the Bronx, was terminated, after a 3020-a hearing by arbitrator Patricia A. Cullen. On appeal Menchin did not argue the merits of Cullen’s decision but instead relied upon the argument that the probable cause determination was flawed since it was made by his principal and not the Chancellor. Menchin argued that the delegation of determining probable cause was improperly delegated to the principal thus rendering all proceedings made in furtherance thereof invalid.

Justice Linda S. Jamieson of Rockland Supreme Court took little time dismissing this argument. Jamieson found that Chancellor Joel I. Klein had authority to issue the August 16, 2007 Delegation of power to the principals of high schools in District 75 and 79. (Menchin’s school is in District 79). The Delegation states, in relevant part, that the Chancellor delegates to “each high school, District 75 and 79 principal the power to” “Initiate and resolve disciplinary charges against teaching and supervisory staff members in your school. . . .”

Jamieson further found that Section 2590-h(38) does not have a limiting provision and denied Menchin’s appeal.

Malcolm Menchin, Petitioner, for a Judgment under Article 75 of the Civil Practice Law and Rules against New York City Department of Education, Performance Conservatory High School, Respondents. 2250/2011, SUPREME COURT OF NEW YORK, ROCKLAND COUNTY, 2011 NY Slip Op 51344U; 2011 N.Y. Misc. LEXIS 3520, July 13, 2011, Decided