Will failure to serve the DOE in an Article 75 proceeding within the proscribed period require that the petition be dismissed?

No. Under CPLR 306-b where the statute of limitations is less than 4 months  the action or proceeding must be served within 15 days of the expiration of the statute of limitations. There is no dispute that the petition in Portnoy v. NYCDOE was served well beyond the fifteen day period and the DOE moved to dismiss the proceeding. In denying that part of the DOE’s application Justice Wooten wrote that the application to dismiss would be denied in the interests of justice and in the interest of deciding the matter on its merit.

Portnoy had been charged with multiple specifications which resulted in his termination by Arbitrator Rosario. Justice Wooten affirmed the termination finding no basis that Arbitrator Rosario’s opinion and award violated public policy or Portnoy’s due process rights.

Portnoy v. NYCDOE

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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 Court Entertain a Discovery Request in a 3020-a Proceeding Before a Final Award is Made?

No. Many times when faced with a disciplinary hearing the parties require information from each other to prepare for the case. While the Education Law provides an affirmative obligation to provide such material the guidelines for the issuance of such a discovery order from an arbitrator are not clear.

In this case the School District sought some emails from a teacher. The arbitrator refused to order the teacher to turn them over so the District went to Supreme Court to seek redress.

Justice Donald A. Greenwood ruled that a court order in such a situation was improper since the statute only allowed the court to review final arbitration determinations.

It is important in such cases to make the application on the record to preserve any issue for appeal.

In the Matter of the Application of the Jordan-Elbridge Central School District and the Board of Education thereof, Petitioners, For an Order Pursuant to Article 75 of the CPLR Vacating the Hearing Officer’s Decision, against Anonymous, a Tenured Administrator, Respondent. Sup. Ct., Onondaga County, October 16, 2012. Index No. 2012-3582.

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.

Can the 10 day time period to file an appeal to Court on a 3020-a be extended by one day due to severe weather?

No. Antionette Myers, an 11 year tenured teacher with an unblemished record was found, after a 3020-a hearing, to have committed verbal abuse and was terminated. She did not receive the notice of her arbitrator’s decision until December 17. 2010. She filed her appeal in Court on December 28, 2010, eleven days later. She claimed that there was severe weather on December 27th which made her ability to file on the tenth day extremely difficult.

While Justice Judith Gisch found sympathy in Myers’ predicament the Court ruled that the 10 day period was neither waivable nor excusable. Gisch dismissed the appeal without ruling on its merits.

ANTOINETTE MYERS, Petitioner, -against- CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF EDUCATION; JOEL I. KLEIN CHANCELLOR OF NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents. For a Judgment under Article 78 Of the Civil Practice Law and Rules. Index No.: 116672/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 31871U; 2011 N.Y. Misc. LEXIS 3390, July 5, 2011, Decided

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

Does an arbitrator’s ruling in a 3020-a which suspends a librarian for inappropriately touching students and taking an unauthorized trip “shock the conscience?”

Yes. Christopher Asch, an openly gay librarian at Stuyvesant High School was removed from his school after a student complained about inappropriate touching and whispering. The matter was well covered in the media.

Upon further investigation Asch was also accused of taking students to “Quiz Bowl” in Boston on an unauthorized trip.

At the arbitration hearing before David Hyland, students and faculty testified as to Asch’s exemplary work at Stuyvesant and that there was a conspiracy, brought upon by at least one student, to spread rumors and make false accusations. One of these rumors was that Asch was a member of NAMBLA, the North American Man Boy Love Association and that he inappropriately touched students arms and whispered into their ears. Asch explained the source of the rumors and testified that the touching and whispering were done to get students’ attention in a quiet place. A female librarian was not subject to such scrutiny despite the fact that she used the same practice.

Additionally the Quiz Show trip was an unofficial club trip which did not require permission slips. A student who lied to his parents and went to Boston on his own was not seen by Asch until 10 PM. Asch believed the student’s lies and had no reason to question his appearance as he was over 18 at the time.

Hyland found “Asch either did not understand or ignored appropriate boundaries as they relate to touching students, even to calm or quiet them when students become unruly or loud.” He suspended Asch for six months without pay and ordered that he attend training.

Justice Manuel Mendez held that the penalty “shocked the conscience of the Court” and lifted the suspension, ordered back pay and removed the training requirement imposed by Hyland.

Analysis:  There at least two problems in Mendez’s decision which might cause the DOE to appeal. The first has to do with a procedural matter. Appeals from 3020-a hearings to Supreme Court are brought by CPLR 7511 which has a ten period in which the petition must be filed and served. The DOE moved to dismiss the petition as untimely and the Court ruled that an extra day was allowed since the last day to file fell on a Sunday. While that does extend the time to file the DOE had made a motion to dismiss and did not fully answer Asch’s petition. The Court, nonetheless, took the DOE’s motion as its answer without giving the DOE an opportunity to respond to Asch’s allegation that the penalty shocked the conscience. Many arbitrators, even in the face of unsupported charges still make a finding. Perhaps this decision will send a message to other arbitrators to dismiss cases that should be dismissed.

In the Matter of Christopher Asche, Petitioner, against The New York City Board/ Department of Education, Respondents, 108528/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 21224; 2011 N.Y. Misc. LEXIS 3104, June 28, 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

Will the Court sustain a 3020-a award in which a teacher was terminated for maintaining an Albany address to avoid paying NYC income taxes?

Terri Patterson, a 10 veteran teacher at P.S. 8 in Brooklyn with an otherwise unblemished disciplinary record was found to have used an Albany address on DOE records and failed to file income taxes for three years as a New York City Resident. She immediately amended her taxes and paid the $1100 City income tax.

She was then served with charges in which the DOE sought her termination. Arbitrator Stuart Bauchner heard her explanation as to how she had an Albany address on file with the DOE. She claimed that after her “layoff” in 2003 (not clear how and why she was laid off) her address was inadvertently changed to Albany and she did not realize it until she was notified about it. The arbitrator did not buy Patterson’s explanation and terminated her. He found that she was not remorseful and used the DOE to defraud the government.

On appeal Supreme Court Justice Gische found that the standard to apply in 3020-a penalties was whether the penalty shocked the conscience. Justice Gische found that it did. Given Patterson’s ten year unblemished record, the lack of impact on her students and that remorse doesn’t make sense when you refile and correct an error the termination was vacated and sent back to the DOE for a determination not inconsistent with the Court’s decision.

Utilizing the shocks the conscience test might be beyond the power of the court since 3020-a determinations are reviewable only under those provisions of CPLR 7511 and not Article 78. No record of appeal could be found.
In the Matter of the Application of TERRI PATTERSON, Petitioner, For a judgment pursuant to Article 75 of the C.P.L.R. -against- CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; JOEL KLEIN, CHANCELLOR OF NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, Index No. 111175/2010, 2011 NY Slip Op 30870U; 2011 N.Y. Misc. LEXIS 1520; 245 N.Y.L.J. 80, April 8, 2011