Is an arbitration award which dismisses only one charge ripe for review and does the 3 year limitations period apply to a charge under 3020-a which alleges a criminal charge?

Yes and Yes. Michael P Hogan submitted an employment application to the Hauppauge Union Free School District in 2006 which in 2010 the school district alleged he failed to disclose that he had previously held a probationary teaching position with another school district and resigned after allegations were made that he used corporal punishment and he would not receive tenure.

Educations Law 3020-a prohibits the bringing of charges against a teacher which are older than 3 years. In Hogan’s case the District argued that the exception contained in 3020-a which allowed the bringing of charges older than 3 years when they sounded in a criminal charge applied since the application allegedly violated Penal Law 175.30, offering a false instrument for filing in the second degree.

The arbitrator dismissed the charge and was ready to hear the remaining two charges when the district appealed.

The Appellate Division, Second Department found that the criminal allegation exception applied and reinstated the charge. Additionally they found that even though the arbitrator’s decision did not make a finding of all pending charges the matter was ripe for review since the arbitrator dismissed the most serious charge.

Hauppauge Union Free School District v. Hogan (September 11, 2013, Decided)

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Is a probationary teacher who received a U-rating required to exhaust all administrative remedies before appealing to Court?

Yes. Leonette Belfield worked for over 10 years as a paraprofessional when she entered the DOE’s program, “Pathways to Teaching,” to become a teacher in 2006. She received 3 consecutive S-ratings and was given a U-rating for the 2009 to 2010 school year and terminated. (It is not clear why Belfield was still on probation during her fourth year teaching).

Deciding not to wait until her U-rating appeal was decided by the Chancellor, Belfield commenced a proceeding seeking reversal of her U-rating and reinstatement. It was undisputed that Belfield did not exhaust her administrative remedies.

Without deciding on the merits Justice Barbara Jaffee dismissed her application relying on Belfield’s failure to wait for the Chancellor’s decision in her U-rating appeal.

In the Matter of the Application of: LEONETTE BELFIELD, Petitioner, -against- JOEL KLEIN, as the Chancellor of the Department of Education of the City of New York, CITY OF NEW YORK, and NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents. For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules. Index No. 114094/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 31862U; 2011 N.Y. Misc. LEXIS 3389, July 1, 2011, Decided

Observation: The decision and supporting documents do not reveal answers to some important questions about the case. Although the Court wrote, in its decision, that Belfield had requested reinstatement, this was not requested in her petition. It is not clear when Belfield was terminated but generally a proceeding to challenge a probationary termination has a four month statute of limitations measured from the effective date of termination. To challenge the U-rating and the subsequent placement on the DOE’s ineligible list requires filing the proceeding in Court within four months of the Chancellor’s decision in the U-rating appeal which did not occur at the time of the filing of Belfield’s petition.