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 definition of “student” include a person a teacher has had sexual relations with even though he did not attend school?

Yes. Back in 2008 Gina Salamino, a tenured 2nd grade teacher at P.S. 121Q, was terminated after a 3020-a hearing for having sexual relations with a 17 year old. The case created some publicity. Salamino did not contest her affair but challenged the DOE’s definition of “student” to include the boy who spent the entire school year on the register of his high school but did not attend one day of school due to modeling commitments.

Salamino claimed that she met the 17 year old through a friend of her family and had no reason to believe he was a student. Additionally, she claimed, the boy should have been discharged from Bryant High School’s register but remained there due to a clerical error.

Amazingly there is no clear definition of “student” which would help determine whether the boy was a student for purposes of the Collective Bargaining Agreement, which mandates dismissal for sexual misconduct of students, or 3020-a.

The arbitrator construed Chancellor’s Regulation A-101 to define student and terminated Salimino. On appeal Justice Shirley Werner Kornreich found that since the boy was under 18 pursuant to New York State law he was a minor and affirmed that Salamino’s termination was proper.

Salamino appealed to the Appellate Division who affirmed Justice Kornreich’s decision. The Court held, “We need not determine whether petitioner is correct that the meaning of the term  “student” should be so determined. Even if she is correct, we cannot conclude that the arbitrator acted arbitrarily and capriciously in using Regulation A-101 to determine its meaning.” [citation omitted]

Gina Salamino, Petitioner-Appellant, v Board of Education of the City School District of the City of New York, et al., Respondents-Respondents, 3649, 109166/08, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2011 NY Slip Op 5408; 2011 N.Y. App. Div. LEXIS 5276, June 23, 2011, Decided