Saturday, May 24, 2014

Looking Back at 3020-a in 2008: Where is the 3-Member Panel?

A look back at 2008:

Nick De Marco, NYC Teacher, Loses His Appeal For a Three-Member Panel in His 3020a Hearing




Wednesday, December 24, 2008
Commissioner of Education (Richard Mills, pictured at right) no longer has jurisdiction to determine the merits of disciplinary charges served on a tenured teacher

Appeal of Nicola A. DeMarco from action of the New York City Department of Education regarding disciplinary charges, Decisions of the Commissioner of Education, No. 15,850, December 12, 2008

Nicola A. DeMarco, a tenured teacher employed by the New York City Department of Education [DOE], was served with disciplinary charges initiated by his principal at Louis Armstrong Middle School.

DeMarco demanded a hearing on the charges to be conducted by a three-member panel pursuant to Education Law §3020-a, and also demanded dismissal of the charges on the ground that “disciplinary charges pursuant to §3020-a may not be initiated by a principal without review and approval by higher authority.”

DOE refused DeMarco’s demands on the grounds that [1] it had adopted alternate disciplinary procedures as authorized by Education Law §3020(4); [2] its agreement with the United Federation of Teachers did not provide for three-member disciplinary panels;** and [3] the authority to initiate disciplinary charges had been properly delegated to principals by the Community Superintendent of Community School District involved.

The Commission dismissed DeMarco’s appeal for lack of personal jurisdiction after finding that DeMarco had not served the only agent authorized to accept service of his appeal on behalf of the DOE, the Office of the Corporation Counsel.

In addition, the Commissioner said that DeMarco’s appeal had to be dismissed because, as Commissioner, he no longer had subject matter jurisdiction. Education Law §3020-a was substantially amended in 1994 and the Commissioner no longer had jurisdiction to review either final or nonfinal determinations by disciplinary hearing officers.

The amendment, said the Commissioner, “specifically gives the hearing officer authority to hear and decide all motions, including, but not limited to, motions to dismiss disciplinary charges, citing Education Law §3020-a[3][c][iii] and [iv].” Accordingly, concluded the Commissioner, DeMarco’s request that he dismiss the charges would require a review of the merits, which review was no longer within his jurisdiction.

** §3020-a.2(c) provides that in the event the disciplinary charges concern pedagogical incompetence or issues involving pedagogical judgment, the educator may elect to have the hearing conducted by either a single hearing officer or a three-member panel. All other charges are to be heard by a single hearing officer. However, as the Court of Appeals indicated in Antinore v State, 40 NY2d 6, a collective bargaining agreement may provide for alternatives to the statutory provisions provided such modifications are consistent with administrative due process.

The full text of the Commissioners decision is posted on the Internet:

Appeal of NICOLA A. DeMARCO, from action of the New York City Department of Education regarding disciplinary charges.

Decision No. 15,850

(December 12, 2008)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Ivan A. Mendez, Jr., Esq., of counsel

MILLS, Commissioner.--Petitioner challenges disciplinary charges brought against him by the New York City Department of Education (“respondent”). The appeal must be dismissed.

Petitioner is a tenured teacher employed in respondent’s district since 1994. On December 7, 2007, disciplinary charges were brought against him by his principal at Louis Armstrong Middle School, I.S. 227. Petitioner demanded a hearing on the charges by a three-member panel pursuant to Education Law §3020-a, and demanded dismissal of the charges on the ground that disciplinary charges pursuant to §3020-a may not be initiated by a principal without review and approval by higher authority.

Respondent refused petitioner’s demands on the grounds that it had adopted alternate disciplinary procedures as authorized by Education Law §3020(4), and that its agreement with the United Federation of Teachers did not provide for three-member panels. It also refused to dismiss the charges because it claims that authority to initiate disciplinary charges had been properly delegated to principals by the Community Superintendent of Community School District 30 on August 27, 2007.

Petitioner commenced this appeal on June 25, 2008, to seek dismissal of the disciplinary charges and to enjoin the disciplinary proceeding during the pendency of the appeal. Interim relief was denied on July 8, 2008.

Petitioner argues that the alternative disciplinary procedures adopted by agreement between respondent and the United Federation of Teachers are improper and effectively deprive him of due process. He contends that the disciplinary proceeding against him also violates his rights under the New York Human Rights Law and the federal Family and Medical Leave Act.

Respondent denies any wrongdoing on its part and asserts several affirmative defenses, including lack of personal jurisdiction and lack of subject matter jurisdiction over some or all of petitioner’s claims.

The appeal must be dismissed for lack of personal jurisdiction. Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]).

According to the affidavit of petitioner’s process server, he made service of the notice of petition and petition upon Christine J. Kicinski on June 25, 2008, at 52 Chambers Street, the location of the Chancellor’s office. Respondent alleges that Ms. Kicinski is not a person authorized to accept service on its behalf. Respondent alleges that “Ms. Kicinski informed the deliverer that she would not accept service on behalf of the DOE, and that he would have to serve the petition on the only agent authorized to accept service on behalf of the DOE, the Office of the Corporation Counsel.” Respondent further avers that the Office of the Corporation Counsel was not served with the petition.

Petitioner’s reply does not address or refute the statement attributed to Ms. Kicinski with respect to her lack of authority to accept service on behalf of respondent. The reply states only, in a general way, that all of petitioner’s papers were served “properly, legally and sufficiently.” This general statement is insufficient to contradict respondent’s assertion.

When there is no proof that an individual has been authorized to accept service on behalf of the respondent, service on that individual is improper and the appeal must be dismissed (Appeal of Baker, 47 Ed Dept Rep 280, Decision No. 15,696; Appeal of J.L., 47 id. 151, Decision No. 15,654; Appeal of D.P., 46 id. 516, Decision No. 15,580).

The appeal must also be dismissed for lack of subject matter jurisdiction. Education Law §3020-a was substantially amended by Chapter 691, §3, of the Laws of 1994, effective for disciplinary charges filed on and after September 1, 1994. Pursuant to that amendment, the Commissioner’s jurisdiction to review determinations of hearing officers, both final and nonfinal, has been removed (Appeal of T.W., 47 Ed Dept Rep ___, Decision No. 15,735; Appeal of Fauvell, 47 id. 350, Decision No. 15,720; Appeal of Frajer, 41 id. 403, Decision No. 14,725). The amendment specifically gives the hearing officer authority to hear and decide all motions, including, but not limited to, motions to dismiss disciplinary charges (Education Law §3020-a[3][c][iii] and [iv]). Petitioner’s request that I dismiss the charges would require my review of the merits, which is not within my authority (Appeal of McCall, 34 Ed Dept Rep 484, Decision No. 13,390).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE

Giving Something Back While Representing NYC

Michael A. Cardozo, New York City Law Department

Stacey Laskin
New York Law Journal
August 7, 2007

Name and Title: Michael A. Cardozo, corporation counsel

Age: 66

Like A Big Law Firm: The New York City Law Department represents and provides legal counsel to Mayor Michael Bloomberg, the City Council, other elected officials and city agencies. Cardozo heads a staff of 1,300 employees, 690 of them attorneys grouped into 17 legal divisions.

Cardozo works mostly in the department's headquarters near City Hall, but oversees offices in each of the city's five boroughs and maintains a desk inside City Hall. His staff vets $4 billion in contracts each year.

According to Cardozo, the department is the third-largest law firm in New York City and operates in much the same way as a large firm, except for the pay -- the average starting salary is $55,000. Still, Cardozo said, the excitement and the responsibility to which city employees are exposed more than make up for the money.

Legal Team: New York City gets sued approximately 200 times every week, and about 65 cases go to trial each week. To staff all of these cases, Cardozo frequently relies upon his first- and second-year attorneys, but also borrows lawyers from large New York firms.

"Unfortunately, because of the economics of the law industry, it's hard to give new associates trial practice. But if they're here for their first year at the firm, they're assigned to one of our trial offices. We win, the law firm wins," Cardozo said.

The law department sometimes refers cases to outside firms. In 2004, for example, New York-based Skadden, Arps, Slate, Meagher & Flom took on a case involving a shooting incident in a city jail. The firm assigned summer associates at no charge to the city. "It's a terrific help," Cardozo said. "The generosity of the private bar is just terrific. It's not just generosity; they gain from it."

Cardozo maintains an active affirmative litigation division, and recently argued, and won, a case before the U.S. Supreme Court, establishing the city's authority to charge property tax against foreign embassies that use their buildings to house employees.

Cardozo counsels the mayor on legislation, including the city's bans on smoking in bars and restaurants and use of trans fats by restaurants. He helped launch police searches of passengers' bags on the subway system following the 2005 London transit system bombings.

The Sept. 11, 2001, attacks generated 9,000 lawsuits against the city, including claims by workers that they had become sick while cleaning up the ruins of the World Trade Center. "This was huge, huge litigation," he said.

Outside Counsel: The city "very, very rarely" retains outside counsel, Cardozo said. Exceptions occur when city attorneys are conflicted out of a case or lack the necessary legal expertise. Litigation arising from the fatal 2003 Staten Island Ferry accident, for example, required retention of Freehill Hogan & Mahar, a firm specializing in admiralty law, as well as another New York firm, Debevoise & Plimpton. Federal regulations require the city to outsource the work involved in selling municipal bonds; firms doing that work have included Sidley Austin, Fulbright & Jaworski and Boston-based Edwards Angell Palmer & Dodge. The city turns to outside experts in medical malpractice litigation arising from the 14 municipally run hospitals; they have included McAloon & Friedman and Martin Clearwater & Bell, both of New York. For litigation arising from city pension investments, the office has turned to firms including Cohen, Milstein, Hausfeld & Toll of Washington, Grant & Eisenhofer of Wilmington, Del., and Labaton Sucharow & Rudoff of New York. Conflict counsel have included Seiff Kretz & Abercrombie and Peltz & Walker, both of New York. The city chooses among firms that respond to a formal request-for-proposal process.

Diversity: Cardozo prides himself on the diversity within his office. Women make up 65 percent of his staff and whites perhaps less than 50 percent, he said. According to Cardozo, the office has the largest number of gay and lesbian attorneys of any municipal law department in the country. "We are a very representative microcosm of society," he said.

Route To Present Position: The Sept. 11 attacks convinced Cardozo, then a partner at New York-based Proskauer Rose, to contribute more to the city in which he was born and spent much of his life. At the time, he was co-chairman of the firm's litigation department and had an active practice, representing the National Basketball Association, the National Hockey League and Major League Soccer in antitrust and labor cases.

"The city was on its knees. But this was an opportunity to give back, so when the mayor offered me the job, I said, 'Yes,'" he said.

"This is my absolute dream job. We make a difference. You can stand up in court and say, 'I represent the city of New York' -- there's a lot of meaning behind that. That's a powerful statement. It's very satisfying."

Cardozo served as president of the Bar Association of the City of New York from 1996 to 1998, and said that it helped prepare him for his job's management and executive duties. He graduated from Brown University with a bachelor's degree in political science in 1963 and earned a J.D. from Columbia Law School in 1966.

Daily Duties: Cardozo starts his day at 9 a.m. with meetings in City Hall with the mayor and other officials. Then he'll usually head back to his office to confer with aides on management issues and with lawyers working on individual cases. He tries to visit each of his offices every week, has frequent meetings with judges and attends charity and bar association events.

One task the mayor assigned Cardozo was to help lead a parade safety task force. Bloomberg set up the panel after a wind gust blew a helium-filled balloon into a lamp post and injured two people during the 2005 Macy's Thanksgiving Day parade. It followed a similar incident involving a Cat in the Hat balloon in 1997.

"We realized this was something serious," Cardozo said. "We came up with a new protocol for measuring wind -- that's something I didn't learn in law school."

Personal: The Scarsdale, N.Y., resident enjoys attending the theater with his wife, Nancy, and spending time with daughters Hedy and Sheryl, and 3-year-old twin grandchildren, Joshua and Lucy. He is an avid New York Yankees fan, and likes to "putter around the garden." He runs three days a week on a treadmill and relaxes in the evenings by reading.

Last Book and Movie: Team of Rivals, by Doris Kearns Goodwin, and Sicko.

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