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

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