Will a probationary termination be upheld where a Chapter Leader, on probation, first started getting unsatisfactory reviews after she wrote a letter to the principal?

No. While it is a bit unusual that a probationer would accept the position of Chapter Leader such a decision was made by a Staten Island teacher. The teacher had performed and was rated satisfactorily up until she wrote a letter to the principal asking how she could make up prep periods. At that point the principal began rating her unsatisfactorily.

Both the Supreme Court and Appellate Division, Second Department found that the teacher’s probationary dismissal was in bad faith and reinstated her with back pay.

The Supreme Court had granted the teacher tenure which the Second Department found was something the Courts could not legally do and sent the matter back to the DOE for further proceedings.

 In the Matter of Lisa Capece, etc., respondent, v Margaret Schultz, etc., et al., appellants. (Index No. 80361/08), 2012-03257, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT, 2014 N.Y. App. Div. LEXIS 3775; 2014 NY Slip Op 3834, May 28, 2014

 

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)

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