Will the termination of special ed, tenured teacher be upheld when the teacher has been found to have twisted the arms of students?

No. A special education teacher with a long, unblemished record was charged with twisting the arms of several students in separate incidents. The 3020-a arbitrator found excessive corporal punishment and terminated the teacher. The Supreme Court, Justice Margaret Chan, reversed, finding that intent to inflict pain was missing from the incidents and found that the teacher’s actions did not merit termination. ERIC HAUBENSTOCK, Petitioner, -against- CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; DENNIS WALCOTT, CHANCELLOR of NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents. Index Number: 651892/2013, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2014 N.Y. Misc. LEXIS 2691; 2014 NY Slip Op 31549(U), June 16, 2014

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

Will failure to serve the DOE in an Article 75 proceeding within the proscribed period require that the petition be dismissed?

No. Under CPLR 306-b where the statute of limitations is less than 4 months  the action or proceeding must be served within 15 days of the expiration of the statute of limitations. There is no dispute that the petition in Portnoy v. NYCDOE was served well beyond the fifteen day period and the DOE moved to dismiss the proceeding. In denying that part of the DOE’s application Justice Wooten wrote that the application to dismiss would be denied in the interests of justice and in the interest of deciding the matter on its merit.

Portnoy had been charged with multiple specifications which resulted in his termination by Arbitrator Rosario. Justice Wooten affirmed the termination finding no basis that Arbitrator Rosario’s opinion and award violated public policy or Portnoy’s due process rights.

Portnoy v. NYCDOE

Must a teacher, who was ordered to undergo a psychological assessment that he was free from addiction to internet pornography and not a danger to students, fully comply with the order before reinstatement?

Yes. Bruce Campbell was a 15 year, tenured teacher at Newtown High School the High School for Arts & Business. In September 2006, a school psychologist at Arts & Business High School, Simon Kopelnitsky, while searching for his documents on a computer shared by Arts & Business High School staff members in one of the guidance counseling offices noticed that “inappropriate” and “pornographic website links were listed under “recent documents,” indicating that the computer had been used to gain access to those internet sites.

He reported this finding to the assistant school principal, and in response the Office of Special Investigation began an investigation into whether there was pornographic material on the computer. OSI investigators removed the computer’s hard drive, and investigator/database programmer Giovanni Perez, after performing a forensic examination of it, found that there was inappropriate or pornographic material on it, which was “possibly downloaded under two user identifications, namely, Campbell’s, and that of school psychologist Stacy Epstein.

Under Campbell’s user id, Perez found that two pictures of a young Asian woman in a bikini bathing suit had been downloaded on June 1 and June 2, 2006. Under Epstein’s user id, more than 30 pictures of naked or partially clothed women, some engaged in sexual acts, were downloaded into temporary internet folders on March 24 and March 31, 2006.

OSI investigator Benjamin Francis interviewed Campbell in January 2007, and showed him the two pictures that Perez had located on the computer under his user id . Campbell acknowledged that he had seen those pictures and explained that he found them while doing research to find out whether, as he was informed by two male students at Newtown High School, two female students were advertising sexual services on a website.

He would not provide the names of the students to the investigator. After interviewing Campbell, and receiving statements from staff members present at the time that Kopelnitsky discovered the website links on the subject computer, Francis concluded that Campbell had violated the Board’s internet use policy “by accessing pornographic material” on the subject computer.

Following the OSI investigation, the Board commenced a disciplinary proceeding , pursuant to Education Law § 3020-a.

A hearing on the charges was held before Arbitrator James Darby.

After considering all the evidence, Darby found that the Board failed to demonstrate by a preponderance of the evidence that Campbell was guilty of the charges presented in Specifications 1 and 2, which included viewing and downloading pornographic photographs on March 24 and March 31, 2006.

In so finding, the hearing officer noted that the only evidence connecting Campbell to the allegations in Specifications 1 and 2 was that he was at the school on the dates in question. Evidence showed that the pictures had been accessed under Epstein’s id, and Campbell testified that he did not ever use her id and did not know what it was. Perez testified that those pictures were not downloaded, and possibly were pop-ups not intentionally viewed or accessed by the computer user. Evidence also showed that both March 24 and 31 were Fridays, when Campbell worked out of the principal’s office, and not in Room102B.

Darby then concluded that Campbell was guilty of the charges presented in Specifications 3 and 4, that is, viewing and downloading two “inappropriate” photographs onto the school computer on June 1 and 2, 2006. Campbell does not deny that he viewed and downloaded two pictures, and viewed hundreds of other similar pictures, as part of his own investigation into allegations that female students were selling sexual services on the internet. Although Campbell claimed that he was doing this to help students, the hearing officer found his explanation that he was conducting his own investigation unconvincing.

In determining what punishment was appropriate , the hearing officer considered, among other things, Campbell’s 15-year tenure without any prior discipline, that only two of the four charges were sustained, and the lack of information about the likelihood of a reoccurrence , and concluded that Campbell “shall be suspended without pay for the remainder of the 2008-2009 school year, or 90 days, whichever is longer;” that Campbell’s internet use shall be monitored by the Board during the 2009-2010 school year, and any substantiated allegations that he violated the Internet Use Policy will result in his termination, subject to his CPLR § 3020-a rights; and that Campbell’s return to work shall be conditioned upon his submitting to the Department’s Office of Legal Services a written assessment from a licensed therapist.

The assessment shall indicate that the therapist has read this Opinion and Award, has evaluated Campbell, and that he or she concludes that Campbell is not addicted to Internet pornography and that his viewing of Internet pornography, as described herein, will not adversely affect his ability to teach and will not place students at risk.

The DOE, seeking Campbell’s termination and not contesting Darby’s finding, appealed the 3020-a penalty and argued that it exceeded the arbitrator’s authority.

Justice Joan Madden disagreed and confirmed the award in April 2010.

Campbell attempted to comply with Darby’s order and sought reinstatement after he obtained a therapist’s evaluation. The DOE rejected the evaluation since, it claimed the evaluation only stated that in his report that he could not determine whether Campbell was addicted to pornography, characterizing such determination as “nearly impossible,” and that he was only able to state that there “is no evidence that Campbell has an internet addiction.” In addition, the therapist’s conclusion that viewing internet pornography would not put students at risk or affect his ability to teach appears to be based solely on Campbell’s lack of recorded history of prior inappropriate behavior (a fact that was known by Darby) and the “lack of information” indicating that Campbell has an impairment that would interfere with his ability to teach.

Campbell sought reinstatement from Court. Justice Madden, agreeing with the DOE’s interpretation of the therapist’s evaluation, denied Campbell’s application.

In the Matter of the Application of THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and JOEL KLEIN, as Chancellor of the Board of Education of the City of New York, Petitioners, -against – BRUCE CAMPBELL, Respondent. Index No. 400780/09, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 32018U; 2011 N.Y. Misc. LEXIS 3604, July 13, 2011, Decided July 19, 2011, Filed.

Observation: It appears that Campbell is caught in a classic bind. The order that he be determined not to be addicted to internet pornography and that he is not a danger to children is a tall order for a therapist to opine since the basis of any therapist’s opinion would be the self-reporting of the patient. While Madden has confirmed Campbell’s order denying his termination she has made reinstatement an extremely difficult hurdle.

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 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