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.)

Does a teacher obtain tenure by estoppel even though he signed a letter offering to extend his probationary term for one year?

No. Gerald Chisholm, an English teacher for the Bedford Central School District was terminated from his position during what the District claimed was his fourth year of probation. Chisholm claimed that he had acquired tenure by estoppel since “Tenure may be acquired by estoppel when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher’s probationary term.”

In denying Chisholm’s argument the Second Department found that he had written a letter requesting an extension of probation for a fourth year and was thus precluded from asserting he had obtained tenure by estoppel.

Chisholm v. Hochman (September 11, 2013, Decided)

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

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

Will the failure of the DOE to follow the UFT contract’s requirement to reduce OSI investigations to writing within 6 months prevent a teacher from being disciplined under 3020-a?

Article 21, C(4) of the UFT contract provides that when an investigation of a teacher is conducted any report must be reduced in writing, given to the teacher with an opportunity to respond in writing within 6 months of the date of the incident investigated or the date that the DOE should have discovered it.

Phyllis Nuchman, a 29 year veteran special education teacher was charged with 3 specification dealing with her responsibilities with maintaining special education records and IEP conferences. The charges resulted from an SCI/OSI investigation which took longer than six months to complete. It was undisputed that neither Nuchman or her UFT rep were given written copies of the investigation or given a chance to respond before charges were lodged against her.

Arbitrator Jay Siegel denied Nuchman’s motion to dismiss the charges based on the DOE’s failure to comply with the UFT contract. After a hearing Nuchman was suspended for 4 months.

On appeal to State Supreme Court Nuchman reargued the motion to dismiss claiming that the provisions of the contract required that the investigation be completed within 6 months. Justice Cynthia Kern found that there was nothing in the contract which specifically prevented the DOE from bringing charges that were not reduced to writing within six months. Justice Kern found that the arbitrator correctly weighed Nuchman’s 29 years of service and rejected the DOE’s attempt to terminate her. Justice Kern found that the 4 month suspension was reasonable.

Observation: The contract language is pretty strong. It provides that “The writing may not be incorporated into the employee’s personnel file or record, unless this procedure is followed, and any such writing will be removed when an employee’s claim that it is inaccurate or unfair is sustained.” Given this strong language it is hard to imagine how charges can be sustained if is not part of an employees file.
In the Matter of the Application of PHYLLIS NUCHMAN, Petitioner, -against- JOEL I. KLEIN, CHANCELLOR, NEW YORK CITY DEPARTMENT OF EDUCATION, and THE NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents, To Vacate a Decision of a Hearing Officer Pursuant to Education Law Section 3020-a and CPLR Section 7511. Index No. 111217/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 30694U; 2011 N.Y. Misc. LEXIS 1215, March 10, 2011