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

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

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 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 when it is based on an allegation of an English translation of a Spanish word?

A court’s review of a 3020-a award is very limited. The statute provides that the court may only review issues that go to the fundamental foundation of the award such as whether there was fraud or corruption or whether the arbitrator exceeded her lawful authority. Given the limit of review it is rare that 3020-a award will be modified or reversed.

Carlos Garcia taught at the High School of International Business and Finance. During the 2008 – 2009 school year he was accused, by the principal, of using inappropriate language with his students. The gravamen of the petition was that arbitrator Martin Schienman inappropriately utilized an interpreter as an expert witness to define the Spanish word, “coňo,” a word he allegedly directly at his students. Garcia argued that the meaning of the word ranged from an expletive to a familiar greeting depending upon the particular Spanish country or culture as well as the context it was used.

Sheinman, although rejected the DOE lawyer’s demand for Garcia’s termination found a violation of Chancellor’s Regulation 421-a and fined Garcia $15,000. Garcia appealed to the Supreme Court.

In analyzing Garcia’s argument Justice Jaffe utilized the Article 78 standard of arbitrary and capricious and was unpersuaded. She did find the fine to be excessive and lowered it $1,000.

3020-a hearing appeals are guided by Article 75 of the Civil Practice Law and Rules and not by Article 78. Had Jaffe used Article 75 instead of the less restrictive standard of Article 78 it is unclear whether she would have the authority to reduce the fine. There is currently no record of any appeal.

CARLOS GARCIA vs. THE NEW YORK CITY DEPARTMENT OF EDUCATION, 2011 NY Slip Op 31045U; 2011 N.Y. Misc. LEXIS 1908, Index No. 113595/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, April 20, 2011