Update : Does the Appellate Division agree with the lower court that the Special Commissioner of Investigation has no power to force a tenured teacher to testify about a matter covered by 3020-a?

Yes. In a post one year ago Supreme Court Justice Carol Huff denied the Special Commissioner of Investigation’s application to force a tenured teacher to give testimony in a matter covered under the protections of 3020-a, the teacher’s right to an adversarial hearing. The Appellate Division has now affirmed. Since testifying before the SCI would be admissable at a 3020-a hearing, ” forcing a tenured teacher or assistant principal to testify in an SCI proceeding is tantamount to forcing that employee to testify in a DOE disciplinary proceeding, which directly conflicts with state law, Education Law 3020(3)(c)(i).”

Condon v. Sabater (App. Div., 1st Dept.)

Will a termination after a 3020-a hearing, based on a finding of probable cause by a principal, be sustained?

Yes. Malcolm Menchin, a tenured teacher at Performance Conservatory High School in the Bronx, was terminated, after a 3020-a hearing by arbitrator Patricia A. Cullen. On appeal Menchin did not argue the merits of Cullen’s decision but instead relied upon the argument that the probable cause determination was flawed since it was made by his principal and not the Chancellor. Menchin argued that the delegation of determining probable cause was improperly delegated to the principal thus rendering all proceedings made in furtherance thereof invalid.

Justice Linda S. Jamieson of Rockland Supreme Court took little time dismissing this argument. Jamieson found that Chancellor Joel I. Klein had authority to issue the August 16, 2007 Delegation of power to the principals of high schools in District 75 and 79. (Menchin’s school is in District 79). The Delegation states, in relevant part, that the Chancellor delegates to “each high school, District 75 and 79 principal the power to” “Initiate and resolve disciplinary charges against teaching and supervisory staff members in your school. . . .”

Jamieson further found that Section 2590-h(38) does not have a limiting provision and denied Menchin’s appeal.

Malcolm Menchin, Petitioner, for a Judgment under Article 75 of the Civil Practice Law and Rules against New York City Department of Education, Performance Conservatory High School, Respondents. 2250/2011, SUPREME COURT OF NEW YORK, ROCKLAND COUNTY, 2011 NY Slip Op 51344U; 2011 N.Y. Misc. LEXIS 3520, July 13, 2011, Decided

Can a teacher with an intern certificate earn Jarema credit while employed in a substitute position?

No. Under the Jarema law, so-called due to the law’s co-sponsor, a three year period of probationary service can be shortened to one year when “credit” is given for prior probationary service given as a regular substitute on an annual salary. The law was passed to prevent inequities in the length of probation for teachers who had been teaching in unappointed positions in the same license they sought tenure.

State certification requirements have radically changed since the passage of Jarema.

Jesus Berios first started working for the Yonkers School District under an intern certificate; a credential that entitled him to work under the supervision of a fully certified teacher. An intern certificate is “the certificate issued a student in a registered or approved graduate program of teacher education which includes an internship experience(s) and who has completed at least one-half of the semester hour requirement for the program” (8 NYCRR 80-1.1(b) [24])

After one full year teaching under the intern certificate he was appointed with an initial certificate to a regular teaching position in the same subject area for two full school years when he was dismissed, without a hearing.

Berios brought a proceeding in Westchester Supreme Court arguing that he obtained tenure by estoppel, a court determined grant of tenure after finding that he had completed three years of satisfactory service.

Both the Supreme Court and the Appellate Division disagreed. Berios’ service under the intern certificate did not qualify as regular substitute service required under Jarema since he did not have the qualifications to teach without supervision. The Court held, “Allowing a substitute teacher to accumulate tenure credit for time spent teaching pursuant to an intern certificate would mandate that a school board grant or deny tenure to that teacher before he or she obtained a valid teacher’s certificate.”

In the Matter of Jesus Berrios, appellant, v Board of Education of Yonkers City School District, et al., respondents. (Index No. 23910/09), 2010-02768, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT, 2011 NY Slip Op 5804; 2011 N.Y. App. Div. LEXIS 5663, July 5, 2011, Decided

Can a written communication from a school administrator to a tenured teacher which criticizes the teacher be made a part of the teacher’s personnel file without affording the teacher an opportunity for a due process hearing?

Yes, according to a June 2, 2011 decision of the Court of Appeals, our state’s highest court. And you can thank our crack negotiating team for supplying the legal justification.

Back in June 2005 a fact-finding panel concluded that a teacher’s right to grieve letters in the file should be given up in exchange for the right of the teacher to append a response to the letter and have the letter removed from their file if no disciplinary charges were preferred after 3 years.

The UFT contract negotiators extolled the value of giving up this important right and it was incorporated into the contract for 2003 to 2007. There was (and still is) no right to deal with inaccurate letters, including those concluding teacher misconduct, unless and until there was a disciplinary hearing.

A small crack seemed to open in several cases brought about in response to letters that concluded there was teacher misconduct and the teacher given no ability to confront the allegations except with a written, attached response. On its face this seemed to fly in the face of the due process requirements of 3020-a and several lower court judges agreed.

The case of Rachel Cohn is illustrative. Cohn, a tenured Kindergarten teacher at P.S. 7Q, got into a discussion about paraprofessionals with her principal, Sara Tucci. During the discussion Cohn allegedly said that Tucci should watch “her Latin temper.”

Tucci took offense at the remark and commenced an OEO investigation. At the conclusion of the OEO investigation, the OEO found a probable violation of Chancellor’s Regulation A-830 and referred the matter back to Tucci for possible corrective action. Tucci placed a letter in Cohn’s file substantiating her own complaint and warning that the matter could lead to charges and ultimate termination.

Helen Hickey is a tenured physical education teacher at P.S. 41R with almost 30 years’ experience. When a field day was scheduled for the end of the school year the principal gave her certain instructions. When the day arrived there was inclement weather and a change in plans was required to move the field day indoors. The field day started 20 minutes late and the principal took no time to place a letter in Hickey’s file. The letter stated that Hickey was incompetent and may be subject to disciplinary charges.

Both Hickey and Cohn brought proceedings in Supreme Court and following other lower court precedent the Court’s ordered both letters expunged from their files. The lower court found that characterizing the alleged improper action made the letter subject to the due process requirements of 3020-a and were no longer instructive or cautionary in nature but rather disciplinary to which each teacher had a right to a hearing to contest.

The DOE appealed and the Appellate Division, First Department found that when the contract was changed to prevent letters in file grievances the parties waived any right to expunge the letters whether they were characterized as disciplinary or not.

Hickey and Cohn appealed to the Court of Appeals which decided, unanimously, that the UFT had bargained away their right to a hearing.

The Court of Appeals wrote:

“Article 21A is a broad provision that clearly encompasses written reprimands and the disciplinary letters at issue here fell within the purview of Article 21A. Comparison of the statute and the CBA provision reveals that the procedure in Article 21A is significantly different than, and incompatible with, the procedure in Education Law § 3020-a, meaning that the parties to the contract could not have intended both procedures to simultaneously apply. Their history of collective bargaining indicates, with respect to the placement of written materials in tenured teacher’s files, petitioners’ union was well aware that, by adopting Article 21A, it was agreeing to substitute that procedure for other due process procedures that had previously been in place. Therefore, there is ample basis to conclude that the union knowingly waived the procedural rights granted in Education Law § 3020-a in this limited arena. Because the letters at issue are not subject to 3020-a procedures, petitioners are not entitled to have them expunged.”

In the Matter of Helen Hickey, Appellant, v. New York City Department of Education, Respondent. In the Matter of Rachel Cohn, Appellant, v. Board of Education of the City School District of the City of New York, et al., Respondents., No. 101, No.102, COURT OF APPEALS OF NEW YORK, 2011 NY Slip Op 4541; 2011 N.Y. LEXIS 1339, June 2, 2011