If Charged With 3020-a and You Retire, Your Teaching License is Permanently Terminated

Termination is the Penalty If a Charged Employee Retires While Proceeding With 3020-a Arbitration

The point I would like to make is: if you retire after receiving 3020-a charges, you will be terminated.

See Jefferson v NYC DOE, below:
"the plain language of paragraph 24 of New York City Board of Education Chancellor’s Regulation C-205 provides that a New York City teaching license shall be permanently terminated if the license holder retires while charges are pending pursuant to Education Law § 3020-a."

Supreme Court of the State of New York Appellate Division: Second Judicial Department 
D50816 N/ct AD3d Submitted - November 3, 2016 

REINALDO E. RIVERA, J.P. LEONARD B. AUSTIN SHERI S. ROMAN FRANCESCA E. CONNOLLY, JJ. 2015-11195 

DECISION & ORDER

In the Matter of Wayne Crawford Jefferson, appellant, v New York City Board of Education, respondent. (Index No. 6002/15)

Wayne Crawford Jefferson, Hazleton, PA, appellant pro se.
Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow and Elizabeth I. Freedman of counsel), for respondent.

In a proceeding pursuant to CPLR article 78 to compel the respondent to reinstate the petitioner’s New York City teaching license, the petitioner appeals, as limited by his brief, from so much of an order and judgment (one paper) of the Supreme Court, Queens County (Butler J.), entered August 3, 2015, as, in effect, denied the petition and dismissed the proceeding.

ORDERED that the order and judgment is affirmed insofar as appealed from, without costs or disbursements.

The petitioner was employed by the New York City Department of Education, sued herein as the New York City Board of Education (hereinafter the DOE), as a teacher until he retired on October 27, 2014.

At the time he retired, charges were pending against him pursuant to Education Law § 3020-a.

Pursuant to paragraph 24 of New York City Board of Education Chancellor’s Regulation C-205, the petitioner’s New York City teaching license was permanently terminated since charges were pending against him pursuant to Education Law § 3020-a at the time he retired. The petitioner was apprised of the termination of his license by an attorney from his union. The petitioner commenced this proceeding pursuant to CPLR article 78 to compel the DOE to reinstate his teaching license. The DOE moved to dismiss the petition.

The Supreme Court, in effect, denied the petition and dismissed the proceeding, and denied the motion as academic.

The petitioner appeals.

“A special proceeding under CPLR article 78 is available to challenge the actions or inaction of agencies and officers of state and local government” (Matter of Gottlieb v City of New York, 129 AD3d 724, 725; see Matter of Hollander v Suffolk County Dept. of Social Servs., Child Support Enforcement Bur., 140 AD3d 1064, 1065).

When a petitioner challenges an administrative determination that was not made after a quasi-judicial hearing, the court must consider whether the determination was made in violation of lawful procedure, affected by an error of law, or arbitrary and capricious (see CPLR 7803[3]; Matter of Gottlieb v City of New York, 129 AD3d at 725; Matter of JP & Assoc. Corp. v New York State Div. of Hous. & Community Renewal, 122 AD3d 739, 739). A determination is arbitrary and capricious when it is without sound basis and reason and generally taken without regard to the facts (see Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, 280; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 231; Matter of Gottlieb v City of New York, 129 AD3d at 725).

“Pursuant to Education Law § 2590-h, the Chancellor has the authority to promulgate regulations ‘necessary or convenient’ to the administration of the public school system” (Matter of Springer v Board of Educ. of the City Sch. Dist. of the City of N.Y., 27 NY3d 102, 106). “The tenets of statutory construction apply equally to administrative rules and regulations” (id.). Such regulations should be construed in accordance with their plain language (see id. at 107; see also Matter of Vaccaro v Board of Educ. of the City Sch. Dist. of the City of N.Y., 139 AD3d 612; Matter of Brennan v City of New York, 123 AD3d 607).

Here, the Supreme Court properly, in effect, denied the petition and dismissed the proceeding since the plain language of paragraph 24 of New York City Board of Education Chancellor’s Regulation C-205 provides that a New York City teaching license shall be permanently terminated if the license holder retires while charges are pending pursuant to Education Law § 3020-a. The petitioner’s contention that he was unaware of this regulation, which was issued on September 5, 2000, and posted online on the DOE’s website, is unavailing, as he was “deemed to be on notice of the DOE Chancellor regulation[s]” (Matter of Benjamin v New York City Dept. of Educ., 119 AD3d 440, 441; see Salamino v Board of Educ. of the City School Dist. of the City of N.Y., 85 AD3d 617, 619).

The petitioner’s remaining contentions are without merit.

Accordingly, the Supreme Court properly, in effect, denied the petition and dismissed the proceeding.

RIVERA, J.P., AUSTIN, ROMAN and CONNOLLY, JJ., concur.

ENTER: Aprilanne Agostino Clerk of the Court
               January 11, 2017

129 A.D.3d 724 (2015) 10 N.Y.S.3d 542 2015 NY Slip Op 04645

In the Matter of CRAIG GOTTLIEB, Appellant,
v.
CITY OF NEW YORK, Respondents.

2014-01086

Appellate Division of the Supreme Court of New York, Second Department.

Decided June 3, 2015.

Rivera, J.P., Dickerson, Chambers and Barros, JJ., concur.

In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the New York City Office of Child Support Enforcement dated November 14, 2012, denying, in effect, the petitioner's request for a recalculation of the amount of child support debt owed by him, and action to recover damages for violation of the Fair Credit Reporting Act (15 USC § 1681 et seq.), intentional infliction of emotional distress, and gross negligence, and for an injunction, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Queens County (McDonald, J.), dated October 1, 2013, which denied the petition and dismissed the proceeding, and granted the respondents' motion, inter alia, pursuant to CPLR 3211 (a) to dismiss the causes of action alleging a violation of the Fair Credit Reporting Act, intentional infliction of emotional distress, gross negligence, and for an injunction.

Ordered that the order and judgment is affirmed, with costs.

On January 23, 2009, the wife of the petitioner/plaintiff (hereinafter the petitioner) filed a petition seeking, inter alia, child support from him. On February 24, 2009, a Support Magistrate entered a temporary order of support directing the petitioner to pay child support in the sum of $100 per week to his wife through the New York State Support Collection Unit (hereinafter the SCU), commencing on February 27, 2009. In an order dated July 7, 2009 (hereinafter the July 2009 order), entered upon consent, the petitioner was directed to pay the sum of $1,215 per month in combined child and spousal support, payable through the SCU, commencing on July 30, 2009. The July 2009 order further provided that the petitioner was "additionally responsible for the support so ordered from January 23, 2009 to July 30, 2009," and directed the petitioner to pay the sum of $8,440. The SCU was directed to "[c]redit all payments made [by the petitioner] since 1/23/2009 to reduce the retro amount."

In March 2012, the petitioner admittedly withheld payment 725*725 and, in April 2012, only remitted the sum of $50.79, based on his contention that he was owed a credit by the SCU for payments made by him between February 28, 2009, and July 30, 2009. Enforcement measures were taken by the New York City Human Resources Administration Office of Child Support Enforcement (hereinafter OCSE), including the issuance of restraining notices to two different financial institutions holding the petitioner's bank accounts. On October 9, 2012, the petitioner submitted a "Mistake of Fact" form to the SCU, claiming that his account was not in arrears and, instead, that he was "due a credit of $18.08." On November 14, 2012, the OCSE denied the petitioner's claim that the SCU "has made an error in the amount of child support debt that is owed," and determined that "there is an amount past-due and owing."

The petitioner commenced this hybrid proceeding pursuant to CPLR article 78 to review the determination dated November 14, 2012, and action to recover damages for a violation of the Fair Credit Reporting Act (15 USC § 1681 et seq.), intentional infliction of emotional distress, and gross negligence, and to permanently enjoin the respondents/defendants (hereinafter the respondents) from reporting any derogatory information related to his support collection account to credit reporting agencies, and directing the respondents to take steps necessary to remove any derogatory information from his credit file at the credit reporting agencies. The respondents moved, inter alia, pursuant to CPLR 3211 (a) to dismiss the petition/action.

A special proceeding under CPLR article 78 is available to challenge the actions or inaction of agencies and officers of state and local government (see Matter of Luczaj v Bortnik, 91 AD3d 872, 873 [2012]). The standard of judicial review in the instant matter is whether the administrative determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion (see CPLR 7803 [3]; Matter of JP & Assoc. Corp. v New York State Div. of Hous. & Community Renewal, 122 AD3d 739, 739 [2014]). An arbitrary determination is one that is without a sound basis in reason, and is made without regard to the facts (see Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, 280 [2010]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]).

Here, the determination of the OCSE to deny the petitioner's claim that the SCU erred in calculating the amount of past-due support owed by him has a rational basis in the record, 726*726 and was, thus, not arbitrary and capricious. The payment history for the petitioner's support collection account established that, at the time the petitioner submitted the "Mistake of Fact" form, his account was in arrears. Moreover, the payment history flatly contradicted the petitioner's claim that the payments made by him from February 2009 until July 2009 were not credited to his account (see Matter of Kirkpatrick v Wambua, 117 AD3d 739, 740 [2014]; Ford v Department of Social Servs., 41 Misc 3d 1237[A], 2013 NY Slip Op 52045[U], *7-8 [Sup Ct, NY County 2013]; Ward v NYC Human Resources Admin., 2011 NY Slip Op 33162[U] [Sup Ct, NY County 2011]; Matter of Ovalles v New York City Human Resources Admin., 2008 NY Slip Op 33635[U], *2-4 [Sup Ct, NY County 2008]). Further, contrary to the petitioner's contention, the OCSE was authorized, upon determining that his account was in arrears, to attach and seize his assets for the purpose of collecting the overdue support obligation (see Social Services Law § 111-t; 18 NYCRR 346.11), and offset any refund of income tax by the amount of overdue support owed by him (see 42 USC § 666 [a] [3] [A]; Social Services Law § 111-b [7], [8]; 18 NYCRR 346.9). Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding.

The Supreme Court also properly granted the respondents' motion, inter alia, pursuant to CPLR 3211 (a) to dismiss the causes of action alleging violations of the Fair Credit Reporting Act, intentional infliction of emotional distress, gross negligence, and for an injunction. On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (7), all of the allegations in the pleading are deemed true and the petitioner is afforded the benefit of every favorable inference (see Matter of Kar-McVeigh, LLC v Zoning Bd. of Appeals of Town of Riverhead, 93 AD3d 799, 800 [2012]). Although the facts pleaded are presumed to be true, "bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration" (Riback v Margulis, 43 AD3d 1023, 1023 [2007]).

The substance of the cause of action alleging a violation of the Fair Credit Reporting Act was, in essence, a challenge to the determination by the OCSE that the petitioner's account was in arrears, which authorized the OCSE, pursuant to Social Services Law §§ 111-b, 111-c and 111-t, to take enforcement action and report his arrears to the credit reporting agencies. This cause of action essentially constituted a request for relief pursuant to CPLR article 78, regardless of the form in which it was pleaded and, thus, was properly dismissed (see Hertzel v Town of Putnam Val., 121 AD3d 641, 643-644 [2014]; Kickertz v New York Univ., 110 AD3d 268, 272 [2013]).

727*727 "[P]ublic policy bars claims sounding in intentional infliction of emotional distress against a governmental entity" (Lauer v City of New York, 240 AD2d 543, 544 [1997]; see Dillon v City of New York, 261 AD2d 34, 41 [1999]). Here, the individual respondents were only sued in their official capacities. Therefore, the petitioner could not and did not state a cause of action against them for intentional infliction of emotional distress. Accordingly, that branch of the respondents' motion which was to dismiss this cause of action was properly granted.

Finally, the Supreme Court properly granted those branches of the respondents' motion which were to dismiss causes of action alleging gross negligence and for injunctive relief. Even if the allegations contained in the petition are assumed to be true, they do not state a cause of action to recover damages for gross negligence or supporting the issuance of a permanent injunction (see Vilella v AT&T, 35 Misc 3d 1224[A], 2012 NY Slip Op 50853[U], *10 [Sup Ct, NY County 2012]; Josey v Sallie Mae, Inc., 2009 WL 2518643, *8, 2009 US Dist LEXIS 72157, *24-25 [SD NY, Aug. 17, 2009, No. 09 Civ. 4403 (SHS) (AJP)]).

Some numbers on 3020-a From 2012 (Gannett Albany Bureau)

IN DEPTH: Districts Struggle To Remove Bad Teachers

4:55 PM, Apr 10, 2012 

By CARA MATTHEWS
LINK
Gannett Albany Bureau

ALBANY -- A foreign-language teacher in Arlington, Dutchess County, was absent 127 teacher workdays during the 2008-09 school year, about 83 of which were unapproved personal and sick leave.

In the Mamaroneck, Westchester County, school district, a guidance counselor frequently berated less-senior colleagues, calling them "stupid" and "morons" from the 2005-06 school year to the 2007-08 school year.

An Albion, Orleans County, teacher mimicked a fifth-grader with a stuttering problem in May 2009 and made another child wear a box over his head as punishment in April 2009.

"He said, 'H-h-hi," when he greeted the fifth-grader one day, a student who witnessed the incident said.

Afterward, the boy "was just sad and he didn't talk for like a few days," the other student recounted during a disciplinary hearing.

The disciplinary cases, which led to the firing of the teacher and the guidance counselor, were among 40 filed against administrators and instructors outside New York City in 2010 and 2011 and obtained by Gannett's Albany Bureau through the state Education Department.

The review of records showed that in some instances, school districts moved swiftly to fire troubled teachers, while other cases lingered -- in some cases for four, five or even six years.

It took an average of 742 days -- just over two years -- for upstate districts to secure guilty decisions against teachers and administrators, according to a state Education Department report on cases resolved in 2010. It took an average of 512 days for not-guilty verdicts and 338 days for settlements.

For upstate cases decided in 2011, it took an average of 632 days for a guilty decision and 1,070 days for a not-guilty ruling. That's more than twice the length of time for non-guilty cases in 2010. It took an average of 287 days for cases that were settled.

The number of cases is minuscule compared to the number of teachers in New York. There were 146,601 teachers and 172,901 total staff in school districts outside New York City in the 2010-11 school year, compared to 69,170 teachers and 82,341 staffers in New York City.

How the cases were handled, however, has particular relevance now as the state is implementing new teacher evaluations that advocates say will more quickly identify and remove bad teachers. They will face an expedited hearing process if their performance is rated unacceptable for two consecutive years.

"We are writing into law a new national model for teacher evaluations that will put our students first and put New York state at the front of the class when it comes to school accountability," Gov. Andrew Cuomo said in announcing the agreement March 14.

Of the 40 upstate cases resolved in 2010 and 2011, 15 teachers were terminated and 24 teachers and administrators were suspended without pay, fined or penalized. In two-thirds of the 24 cases, school districts had sought to fire the staff member but were unsuccessful. One case was dismissed.

Upstate had fewer cases than New York City in 2010 and 2011. New York City had 74 cases two years ago and 88 in 2011.

Disciplinary action, school officials said, can get bogged down in the hearing process.

If a school district wants to discipline tenured teachers and administrators -- ranging from a reprimand letter to firing them - they have to hire an arbitrator for what is called a 3020-a hearing.

While the process protects school employees' due-process rights, it often can take years and cost districts hundred of thousands of dollars. The state Education Department pays millions of dollars a year for the hearings.

The Hearing Process

The new state budget, which took effect last week, seeks to curb state and local costs. The education commissioner now has the authority to set maximum daily rates for hearing officers' service, travel and other expenses. The commissioner also can limit the number of case "study" hours billed by arbitrators.

Districts and teachers will have to decide which arbitrator they want within 15 days, and no evidence can be introduced after 125 days, except in extraordinary circumstances.

Hearing officers who don't complete hearings in a timely manner can be removed from the list provided by the American Arbitration Association. Hearing officers can cost as high as $1,800 for a five-hour day, and daily rates for court reporters are about $1,000.

The costs have piled up. the state Education Department ended the fiscal year last month with a deficit of as much as $9.5 million for hearings. The payment backlog is 18 months, and some arbitrators have stopped taking cases.

Differing Results

In more severe cases, teachers and administrators are reassigned to their homes during the hearing process. In others, they are transferred to a district office or asked to work on curriculum development.

But they are all paid until their cases are determined. And the records aren't public until after the cases are decided, but even then, the public doesn't often learn all the specifics.

Of the upstate cases resolved in 2010 and 2011, many took one, two or three years to complete. There were several outliers, including one that took more than six years.

The Elmira school district brought charges against Theresa Usack, an assistant principal, in August 2006. The arbitrator dismissed all charges Feb. 7, 2011.

The district brought the case following a problem-filled eighth-grade class trip to Washington, D.C. Several students briefly went missing.

Hearing officer Nancy Faircloth Eischen described the charges as "frivolous" and ordered the district to pay Usack's $4,330 in legal fees and costs, as well as the state Education Department's expenses. The hearing process cost the district more than $55,000 as of last May.

However, the state has yet to send Elmira an invoice. Education Department spokesman Jonathan Burman said Wednesday it was "still being processed."

Usack, assistant principal at Broadway Middle School, said the disciplinary hearing was a waste of time and taxpayers' money. The charges were lodged while she was an assistant principal at Ernie Davis Middle School, and she was assigned to the alternative school for two years before her current assignment.

"I'm very glad that it's over, and I feel very strongly that it could have been avoided," she said. "It was an abuse of power by the school board at that time."

Usack said she's very good at what she does, works hard and treats all children as she would her own.

The school superintendent could not be reached for comment.

While the cost of 3020-a hearings is a large factor in bringing cases, there are others, said Jessica Cohen, district superintendent of the Onondaga-Cortland-Madison Board of Cooperative Educational Services. The district successfully terminated a teacher in September 2010 for incompetence.

"When a superintendent makes a recommendation to a board about bringing charges, you take into account the overall costs certainly, the impact on other staff, which is huge, the negative impact on other staff when they have to testify against their colleagues, and you also look for other ways to resolve the issues," she said.

High School foreign-language teacher Angela Cozzi was brought up on charges by the Great Neck, Nassau County, school district in June 2004, but her case wasn't decided until Aug. 19, 2010. The district accused Cozzi of incompetence. The hearing officer decided the punishment would be 45 calendar days without pay.

Impact On Career

Joyce Spiegel, a former speech pathologist for Mahopac, Putnam County, schools, received notice the district was pursuing 3020-a charges against her in September 2007. She was placed on paid leave pending the outcome. A hearing officer decided Sept. 21, 2011, that the district could fire her.

Spiegel was accused of exposing her breasts to staff members while students were present in the 2006-07 school year. The district alleged she didn't provide speech therapy the same school year to at least three students in the Mahopac Falls School Bridge Program, which serves special-needs children.

Spiegel denied she exposed her breasts. A town judge in Putnam County dropped five charges of misdemeanor child endangerment against her in a related court case.

Spiegel told Gannett's Albany Bureau that none of the allegations were true and that the four people who accused her planned out the charges and lied. A teacher and two aides in the program also were charged with child endangerment at the time. Charges were later dismissed against everyone.

"There was no basis for them, and the judge threw them out," she said.

The disciplinary hearing and the court case destroyed her successful 25-year career, said Spiegel, who was on paid leave for nearly four years.

The legal fees and other expenses for 3020-a cases add up quickly, said Thomas Manko, Mahopac schools superintendent, who received approval from the hearing officer to fire Spiegel. A related 3020-a case against a teacher who worked with Spiegel in the Bridge Program has not been resolved yet.

The cases have cost the district a few hundred thousands dollars a year, he said.

"Plus, the faculty who are being subject to the 3020-a hearing process are on paid leave. We can't suspend them without pay," he said.

Firings Avoided

Robert Kania, the Albion teacher who was accused of making fun of a student's stutter, had been warned after a previous incident that additional missteps could cost him his job. On Jan. 16, 2009, he was suspended for 10 days without pay for making inappropriate statements to a student with attention-deficit disorder and grabbing a child's sweatshirt.

The hearing officer ruled July 7, 2010 that the district had cause to fire the teacher.

Kanie, 36, told Gannett's Albany Bureau that he would never make fun of a student.

As for the box incident, he said he had a student from another class in his room to give that teacher a break. Kania claims the student put the box on his own head to be funny, and when he wanted to take it off, Kania said no.

Kania, who is pursuing a new career in human services, said he regrets the earlier case in which he grabbed a student. He apologized to the boy and his family, and the child stayed in his class that year. "I worked hard at rebuilding what I had broken with him," he said.

While the 3020-a process is designed to protect tenured school employees, it would work better if it were faster and more streamlined, he said.

The types of accusations against teachers who weren't fired were extensive. In the 40 cases, offenses ranged from pushing a student against a wall; pinning a student; using excessive force; allowing a 16-year-old girl to sit on a male teacher's lap and sleeping on school time.

In the Marion, Wayne County, school district, music teacher Troy Nolte was initially suspended without pay for three months for accessing pornography on a school computer, said superintendent Kathryn Wegman. Later, in February 2011, the district brought charges against him for inefficiency and insubordination.

He was fined $10,000 by the arbitrator. He is retiring in June and could not be reached for comment.

"I don't think this district had done a 3020-a before in history," Wegman said. "But it's the only way to discipline a tenured teacher."

The Webster, Monroe County, school district sought to fire Richard Smith, an assistant principal, because of a number of incidents.

He was charged with misconduct in February 2010 for making alleged inappropriate comments in the fall 2009, including that he had "seen more than he wanted to see when following girls who were wearing short skirts up the stairs," the records said.

He was observed sleeping numerous times on the job, although he claimed he had just been closing his eyes. He was accused of being drunk at a parent orientation and at other occasions. He said he was later diagnosed with Bells palsy, which causes facial paralysis.

The hearing officer decided last year on a four-month suspension without pay and wrote Smith's actions "represent substantial problems in judgment and behavior that need correcting."

Smith could not be reached for comment.

The Trumansburg, Tompkins County, school district charged Charles O. Dickerson High School gym teacher Julian Munoz with conduct unbecoming a teacher, immoral character and insubordination. In one incident, he was found guilty of misconduct for fraternizing with a 16-year-old girl and letting her sit on his lap. There was no sexual relationship and their families are friends.

Munoz, who could not be reached for comment, was suspended in March 2011 for four months without pay and reassigned to the elementary-school level. He had to pay a $5,000 fine.

Early Resolution

Many cases are resolved before they even get to the hearing phase with the help of a union representative, said Carl Korn, spokesman for the New York State United Teachers union. The law requires a pre-trial conference to encourage settlements, he said.

Teachers are entitled to due process, he said. A district may offer them tenure after a three-year probationary period. But during the probationary period, a teacher can be removed or dismissed for any reason without a hearing, Korn said.

The 3020-a process protects teachers against "politically motivated board members" and harassment, according to Korn.

The Four County School Boards Association -- which includes Ontario, Wayne, Seneca and Yates counties - supports having the state Education Department appoint hearing officers who would handle 3020-a hearings exclusively. That would improve the consistency and fairness of decisions, said Sharon Sweeney, the group's executive director.

The current system creates an incentive for arbitrators to make "milquetoast" decisions so they don't displease either party, she said.

The state Board of Regents wants to require everything over its annual appropriation to be divided equally between a school district and an employee's union (bargaining unit). The School Boards Association and NYSUT are against the proposal, and it was not included in the budget.

Webster, Monroe County, Superintendent Adele Bovard said she welcomes any efforts to move the process along faster. She said she couldn't comment on the Smith case because it's a personnel matter.

"The schedules are full, the arbitrators are few, and you have to coordinate everyone's schedules. You can wait for months between arbitration sessions," she said.

Jason Whong of the Gannett Albany Bureau contributed to this report.

These are the conditions under which school districts can bring 3020-a hearings against teachers:

Endangerment of student safety
Incompetence
Lack of certification
Absence from work
Insubordination
Corporal punishment and use of excessive force
Improper remarks, physical contact and relationships with students
Physical or mental disability

Source: Four County School Boards Association.

Gannett-point local cases:

Tracy Campanella, Arlington, Dutchess County, school district. The Union Vale Middle School foreign-language teacher received notice 10/15/09 that district was seeking termination. Hearing officer found for district 6/22/11.

Teacher guilty of incompetence and/or neglect of duty, and insubordination. Had been absent 127 teacher workdays during the 2008-09 school year, including 83 days of unapproved personal and sick leave. Insubordination was because she didn't submit a release the superintendent had requested and never went to medical appointments the district had directed her to. Reasons for her absences were redacted from hearing officer's decision. Campanella claimed she had the approval of the district, used teacher sick-bank time and helped with lesson plans during absence.

Anne Cunniff, Katonah-Lewisboro, school district, Westchester County. John Jay High School English teacher. The school board voted 3/18/10 to pursue charges of conduct unbecoming a teacher. Arbitrator ordered 4/18/11 that she would be on unpaid disciplinary leave for the rest of the school year and continue treatment with a psychiatrist or psychologist. Accused of making rude or inappropriate comments and gestures about and to students. There were seven charges between 11/09 and 1/10, including grabbing crotch in the presence of staff and students to demonstrate students' behavior and inviting a male senior into a room and commenting on his 'beautiful eyes' and that she was glad he was off drugs. Hearing officer found she was showing signs of "teacher burnout" from increasing workload and feeling she wasn't getting the help she needed from school.

Elizabeth Denhoff, Mamaroneck, Westchester County, school district, Hommocks Middle School guidance counselor. Terminated 3/2/10 after receiving notice of charges 12/11/07 that district wanted to fire her.

District pursued termination for belittling less-senior colleagues and their work on numerous occasions between the 2005-06 school year and the 2007-08 school year. Called them "stupid" and "morons," trapping one in an office while berating and threatening her for nearly an hour; threatening their employment status; and telling them to keep secrets from the administration. Denhoff claimed she was treated and punished differently than others for the same offense. Hearing officer said she had no remorse.

Ralf Embro, Rockland County Board of Cooperative Educational Services. BOCES River View High School homeroom and history teacher. Received notice 1/12/10 the district was pursuing termination. Hearing officer's decision came on 3/14/11.

Was found guilty of three misconduct charges, including creating an atmosphere of fear among colleagues by talking about his guns and attempting to communicate to students a message of tolerance for unlawful violence. He wore a shirt to school in the summer of 2008 that said, "What does a soldier feel when he captures the enemy? Recoil," or words to that effect. Was found guilty of insubordination by standing at military attention and refusing to speak when asked questions during an investigation into allegations he had made of irregularities in administering Regents exams.

Margaret Everett, Eden, Erie County, school district. Math teacher at Eden Elementary School. A pre-hearing conference was held 7/16/09 on district charges to end her employment. Hearing officer upheld district's move to terminate her employment 8/31/10. Was found to have violated regulations for administering a standardized test in March 2009. She didn't read all the directions beforehand and offered help to some students while they took the exam. Tests had a disproportionate number of erasures.

Margaret Germain, Onondaga-Cortland-Madison BOCES. Special-education teacher. Received notice district was pursuing termination 2/26/09. Hearing officer upheld district's case for termination 9/7/10. Charges were incompetence, inefficiency, neglect of duty and conduct unbecoming a teacher for failing to develop lesson plans for herself and substitutes; not communicating with teaching assistants; not developing individualized education plans for students; unwillingness to work with speech therapists, counselors, etc.; blaming other staff for her failures; unwillingness to accept constructive criticism. Also found guilty of conduct unbecoming a teacher for demanding to search lockers of other staffers. Incidents took place from 2006-2009.

Sal Imbimbo, Ossining, Westchester County, school district. Physical- and health-education teacher at Anne Dorner Middle School. Was charged 5/11/10 for 2/1/10 incident of pushing student against a wall and pinning with hand, yelling at him and using excessive force. District wanted to fire him. Arbitrator made decision 5/17/11. Imbimbo was suspended without pay for one month and required to have anger-management training paid for by the district. Was found to have violated the school board's, state commissioner's and Regents' rules against corporal punishment.

Robert Kania, Albion, Orleans County. Fourth-grade teacher, Albion Elementary School. Received notice of charges 6/2/09 that district wanted to fire him. Hearing officer on 6/7/10 said district had just cause to do that. Charged with misconduct for imitating a student's stutter and making another child wear a box over his head in two separate incidents in 2009. Insubordination charge was dropped. Had been suspended 10 days without pay in January 2009 for making inappropriate statements to a student with attention-deficit disorder and grabbing the student by the neck of his sweatshirt, among other actions, and was told he could be disciplined and terminated if another incident occurred.

Julian Munoz, Trumansburg, Tompkins County. Charles O. Dickerson High School gym teacher, reassigned to elementary school. Suspended without pay for four months, required to pay a $5,000 fine. District filed charges 11/4/09 seeking termination. Arbitrator made decision 3/11/11. Munoz faced nine charges based on incidents from 11/12/09 and 7/9/10, including conduct unbecoming a teacher, immoral character and insubordination. Had pattern of behavior with students that lead professionals to question behavior and recognition of appropriate boundaries. Had received warning memos. Found guilty of conduct unbecoming a teacher but not immoral character for hitting a student with a back injury with the cloth end of his lanyard, kicking him in the lower back/upper buttocks, knocking him over and exacerbating the injury. Guilty of same charge for fraternizing with a 16-year-old girl and letting her sit on his lap. There was no sexual relationship; the families are friends. Guilty of same charge for sending offensive emails on school's network. Found to have engaged in highly inappropriate and unprofessional conduct, but not insubordination, by putting belongings at an elementary school after being told not to.

Thomas Nichols, Brighton, Monroe County, school district. French Road Elementary School music teacher. Received notice from district 11/8/05 that he was charged with conduct unbecoming a teacher, neglect of duty, physical and/or mental disability and insubordination. Hearing officer made decision 1/10/11, suspending him during the course of remedial actions, including counseling and random drug testing, with the goal of returning to work 9/1/11. Guilty of conduct unbecoming a teacher for not being forthright with school doctors; not returning several items of school property; missing department meetings; brushing his teeth, shaving and combing hair in front of students; inappropriate confrontational behavior with colleague; and other charges. Also guilty of neglect of duty for many of same charges. Had been diagnosed with depression and attention deficit hyperactivity disorder.
Troy Nolte, Marion, Wayne County, school district. Music teacher, originally for high school, reassigned to elementary school. District brought charges 2/7/11 for inefficiency and insubordination, seeking $25,000 fine. Arbitrator's decision was 12/14/11. Fined $10,000. Suspended in March 2009 pending outcome of previous charges against him. Was found guilty and was suspended without pay 9/7/10 to 12/7/10. Returned from leave 5/10/10, told to use rest of school year to plan curriculum. Was found guilty of inefficiency for not writing lesson plans; guilty of insubordination for not following expectations in 6/21/10 annual evaluation and not submitting lesson plans. Was found to have engaged in deceit, delay and evasion on the principal's request for lesson plans.

Richard Smith, Webster, Monroe County, school district. Assistant principal. Was given notice of charges 2/12/10 on multiple charges of conduct unbecoming an assistant principal, decision was 6/22/11. Suspended without pay for four months. District had wanted to fire him. Smith was found guilty of most charges, such as inappropriate comments - some of a sexual nature - in reference to students. Examples include saying he saw more than he wanted when following girls wearing short skirts up stairs and telling a student that no boy should have the word "limp" in his name. Also neglected duties in planning a Washington trip, used profanities in front of staff members, rubbed a female teacher's back, didn't administer assessment test properly, and fell asleep in his office multiple times. Incidents occurred in 2008-09 and 2009-10 school years.

Had been on medical leave from 8/08-1/15/09 for depression. Suspended 11/09 and directed to have another psychiatric exam.

Joyce Spiegel, speech pathologist, elementary schools in Mahopac, Putnam County. District brought charges 9/27/07. Judge agreed on 9/21/11 with district's move to terminate her.

Was charged for lifting shirt and exposing breasts to another staffer in presence of students in the 2006-07 school year; and for failing to provide speech therapy to at least three students. Worked in program for severely handicapped students. Teacher denied breast incident, but it was corroborated by several other staffers. Several misdemeanor child-endangerment charges were dropped by a town judge in Putnam County.

Theresa Usack Armstrong, Elmira schools, assistant principal. District brought charges 8/16/06. Hearing officer dismissed all charges 2/17/11. No details provided -- dismissed charges are redacted from record before it is released to the public. Charges were brought after a class trip to Washington, D.C. that was fraught with problems. Hearing officer ordered district to pay $4,330 in legal fees and costs Usack incurred.

Valerie Yarn, Rochester schools, was physical-education teacher at high school, middle school and Wilson Foundation. District brought charges 2/23/09 seeking to fire her and amended charges 5/19/09. Arbitrator made decision 4/28/11. Placed on medical leave with health insurance through 6/29/12. Told to elect psychologist or psychiatrist and notify district by 9/15/11 for a period ending on or before 4/2/12. School district filed complaint in state Supreme Court. Judge vacated ruling and called for a new review of case by different hearing officer. Yarn's attorney had appealed the decision.

Yarn was charged with harassing co-worker, violating an order of protection (pleaded guilty to 2nd-degree criminal contempt in 2006) Charged with sending inappropriate messages to assistant principal for operations at Wilson Foundation and subjecting her to unwanted physical contact. Also, had girls remove bras for scoliosis exam, left students alone multiple times, late and absent multiple times and started to unbutton a student's blazer and continued to do so after the student asked her to stop.

Appeals of 3020-a: the Case of Jay Dubner v New York City Department of Education

A trier of fact in 3020-a, the Arbitrator, has actually two decisions to make in each and every case. One is, what was proven by the preponderance of evidence, and the Department of Education has this burden throughout the hearing. Two, what penalty shall be given for the proven Specifications?

When deciding penalty in 3020-a, all Arbitrators must look at prior history (this is for "progressive discipline") of the employee/Respondent, credibility of witnesses, and what is on the record as evidence. All arbitrators must take into consideration of the educator's remorse for what happened, and what he/she did to undo and bad acts in the past (did he/she go to class for pedagogical improvement? Did he/she go to rehabilitation if there was an alcohol/drug issue?)

Looking through appeals of 3020-a cases which, before 1994, went before the New York State Commissioner of Education, I found the case below, Jay A. Dubner v NYC DOE, where Dubner successfully appealed his termination as too harsh:

Appeal of JAY A. DUBNER from a determination rendered by a hearing panel convened pursuant to Education Law '3020-a concerning charges brought against him by the Board of Education of the City School District of the City of New York.

Decision No. 13,021

(October 15, 1993)

Neal Howard Rosenberg, Esq., attorney for petitioner

Lawrence E. Becker, Esq., attorney for respondent, Katie R. Raab, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the determination of a hearing panel convened pursuant to Education Law '3020-a finding him guilty of conduct unbecoming a teacher and prejudicial to the good order, efficiency and discipline of the service, and authorizing termination from his position. The appeal must be sustained to the extent indicated.

Petitioner is a tenured teacher of special education. He has been employed by respondent City School District of the City of New York ("respondent") for nearly 15 years and, at the time of the events giving rise to this appeal, was serving in a non-classroom position in Community School District No. 17.

On May 8, 1989, petitioner was arrested, and by indictment filed May 25, 1989 in Supreme Court, Kings County, was charged with multiple felony counts of sale and possession of controlled substances. Petitioner was reassigned to a position with the Central Based Support Team (CBST).

On June 19, 1990, petitioner pled guilty in Supreme Court to criminal sale of a controlled substance in the third degree, a class B felony. On July 20, 1990, he was sentenced to an indeterminate sentence of 2 to 6 years in prison.

On November 30, 1990, the Chancellor submitted a charge to the board of education reciting the above conviction, alleging that it constituted conduct unbecoming a teacher and conduct prejudicial to the good order, efficiency, and discipline of the service, and that it constituted substantial cause rendering petitioner unfit to continue as an employee. On December 5, 1990, the board found probable cause for such charge.

A hearing panel convened on May 24, 1991, pursuant to Education Law '3020-a, and heard testimony for a total of 8 days, concluding on February 27, 1992. The panel produced a record of approximately 800 pages of testimony. On April 1, 1992, the panel found petitioner guilty of the charge and authorized his dismissal, by a vote of 2-1. Petitioner was dismissed by formal action of the board of education on May 20, 1992.

This appeal was commenced on June 18, 1992, by service of the petition upon respondent board of education, and petitioner requested a stay of his dismissal. That stay was denied on June 30, 1992.

There can be little doubt as to the seriousness of the underlying offense. The superseding indictment charges petitioner with criminal possession and sale of cocaine on two separate occasions (both sales would be class A-II felonies punishable by 8 1/3 years to life in prison) and criminal possession of cocaine on a third occasion. Petitioner pled guilty to a single count of criminal sale of a controlled substance in the third degree, a class B felony, and received a sentence of 2 to 6 years in prison.

Petitioner contends that he was addicted to cocaine prior to his arrest, that his crime was directly related to his addiction and that he entered into a program of treatment. He claims that his treatment was successful, he has been successfully rehabilitated and has indeed performed his assigned work duties with respondent following his rehabilitation. He further claims that his dismissal violates '504 of the Rehabilitation Act of 1973. Petitioner asks that I reverse the hearing panel's finding as to guilt, and that I grant such other relief as may be proper under the circumstances.

Respondent contends that the disciplinary proceeding was in all respects correctly conducted and the penalty of termination of services is proper. Respondent claims that because of substantial adverse publicity at the time of petitioner's arrest and sentencing, it would be impossible for petitioner to discharge the duties of a teacher. Respondent further claims that the record does not establish that petitioner was addicted prior to his arrest, nor that his condition was in any way caused by addiction. Respondent further contends that the Rehabilitation Act is not applicable to the circumstances of this case.

Petitioner asks that I reverse the hearing panel's finding as to guilt. I decline to do so. There is no question that petitioner is guilty of the underlying criminal charge. The record contains both the minutes of petitioner's plea on June 19, 1990, to a class B felony and a certificate of disposition duly executed by the Supreme Court Clerk. Conviction of this felony clearly constitutes conduct unbecoming a teacher and conduct prejudicial to the good order, efficiency, and discipline of the service. Accordingly, there is no basis for reversing the panel's determination as to guilt.

With respect to the issue of penalty, Appeal of Board of Education of Community School District 19 (32 Ed Dept Rep 354), decided while this appeal was pending, is on point. In that case, I set forth a number of factors which must be considered when a respondent claims that his criminal offense was a result of an alcohol or drug-related problem. The factors are: (1) whether or not the drug-related arrest and conviction that formed the basis of the charges were the manifestation of respondent's substance abuse problem; (2) whether or not respondent has acknowledged his problem; (3) whether or not respondent has successfully undergone treatment for his problem; and (4) whether or not respondent demonstrates a capacity to carry out his duties due to his progress in the treatment program (32 Ed Dept Rep 354 at p. 357).

With respect to the first question, whether or not petitioner was addicted to drugs prior to his arrest, the record contains the testimony of fourteen persons, including petitioner. The critical time period, of course, is the time immediately prior to the arrest. With respect to that time period, only petitioner testified directly, and respondent produced no rebuttal of his claim that he was addicted then. Although petitioner arguably failed to produce certain relevant witnesses who could have bolstered his testimony, there is some question whether those witnesses were within his control, and I, therefore, decline to draw any unfavorable inference because of their failure to testify. Accordingly, there is sufficient evidence in the record to convince me that petitioner had a substance abuse problem prior to his arrest.

With respect to the second factor discussed in Community School District 19, the record offers sufficient evidence that petitioner acknowledged his drug addiction. On May 31, 1989 following his May 8, 1989, arrest, petitioner voluntarily entered a six-week inpatient drug treatment program at Gracie Square Hospital. Although petitioner admits initially denying he had a substance abuse problem, he later fully acknowledged and accepted his condition. This was validated by the testimony of a physician and a licensed drug counselor. Both testified that such denial is typical of patients new to recovery. According to these professionals, recovering addicts have a tendency to deny the existence of a substance abuse problem during the early stages of recovery in an attempt to minimize the severity of their condition. Once petitioner accepted his condition, he began to participate actively in treatment.

Petitioner makes the claim that his treatment has been successful, the third factor set forth in Community School District 19. That treatment consisted of not only a six-week inpatient drug treatment program, but participation for one year in an after-care program at the same hospital as an outpatient. During his incarceration, which lasted approximately 3 1/2 months, petitioner was involved in the Alcohol and Substance Abuse Treatment (ASAT) program sponsored by the New York State Department of Corrections, which consisted of group therapy and participation in Narcotics Anonymous meetings. Petitioner maintains that he attends Cocaine and Narcotics Anonymous meetings three or four times per week. As of January 1992, petitioner was enrolled in courses to become a drug and alcohol substance abuse counselor to assist other addicts in recovery. Based upon these facts, petitioner has demonstrated an earnest desire to be rehabilitated.

With respect to the question of petitioner's present capacity to carry out his duties, the record contains testimony from four of petitioner's current colleagues and supervisors in the administrative offices of the board of education. Witnesses referred to petitioner as an excellent employee. He was further described as very good at his job and on task prior to and following his May 8, 1989 arrest. Additional testimony revealed that petitioner performed duties as required, was very organized, focused, rarely absent and arrived for work on time. According to a supervisor, prior to petitioner's arrest, petitioner trained an assistant and overall, left the office in a better condition than he found it.

Following his May 1989 arrest and subsequent job reassignment in September 1989, petitioner testified he was only absent once. Petitioner further reveals that he worked when it was not required, often stayed late and worked on holidays and during summer vacations. At his position with the CBST, petitioner carried a case load approximately double that of his co-workers and also was assigned to special projects.

The primary purpose of a disciplinary hearing is not punitive, but rather, to determine a teacher's fitness to teach and carry out professional responsibilities (Matter of Bott v. Bd of Educ., 41 NY2d 265). After careful review of the lengthy testimony and numerous exhibits, I am unable to conclude that petitioner is unfit to teach. Moreover, petitioner has confronted his drug addiction and has, thus far, demonstrated success in overcoming it. Finally, there is no basis to conclude that the underlying conduct that resulted in the charge will recur.

With respect to the nature of the penalty imposed, it is well settled that the Commissioner may substitute his judgment for that of a hearing panel regarding the penalty imposed (Shurgin v. Ambach, 83 AD2d 665, 442 NYS2d 212). This requires an assessment of the measure of discipline and whether it is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD2d 745, 434 NYS2d 809, lv to app den 53 NY2d 603, 439 NYS2d 1026; Matter of Kloepfer v. Commissioner, et al., 82 AD2d 665, affd 56 NY2d 700; Shurgin v. Ambach, supra). It is within the Commissioner's authority to reduce a penalty (Matter of Board of Education of the Center Moriches UFSD, 22 Ed Dept Rep 113). In that case, the Commissioner determined that despite a panel's finding of incompetence, termination was not necessary as recommended by the hearing panel. In Appeal of the Board of Education of the Malverne UFSD (29 Ed Dept Rep 363, affd sub nom Matter of Malverne UFSD v. Sobol, 181 AD2d 371), I substituted my judgment for that of the panel, reducing the penalty imposed.

In the case before me, the panel has recommended that petitioner be terminated. However, the record supports the conclusion that petitioner suffered from drug addiction prior to his arrest, acknowledged his problem, sought treatment that has been successful and is capable of carrying out his professional responsibilities. Termination of petitioner's services under these circumstances would be unduly harsh.

I find that a penalty of two years' suspension without pay is more appropriate than termination and will be sufficient to impress upon petitioner the seriousness of his actions and to serve as a deterrent to any future similar actions.

Finally, petitioner's reliance on '504 of the Rehabilitation Act (20 U.S.C. '794) is misplaced. Assuming without deciding that petitioner qualifies as an "individual with a disability" as defined by 20 U.S.C. '706(8), and that '794 is otherwise applicable, it is clear that the disciplinary action taken here by respondent was not taken "solely by reason of his or her disability." Disciplinary action was taken as a result of petitioner's commission of a class B felony. Where an employee is disciplined for criminal activity, the Rehabilitation Act has no application (Richardson v. United States Postal Service, 613 F. Supp. 1213; Franklin v. United States Postal Service, 687 F. Supp. 1214). Where a teacher commits a crime, one may also question whether that teacher is an "otherwise qualified individual" for purposes of 20 U.S.C. '794, but such speculation is unnecessary given the circumstances of the case.

In view of this disposition, it is unnecessary to consider or discuss the other contentions of the parties.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that petitioner be suspended without pay for a period of two (2) years, commencing May 20, 1992, and terminating May 19, 1994.

END OF FILE