Teacher Appeal of Hearing Officer's Decision Denied

Matter of Luft v New York City Bd./ Dept. of Educ.

 

Petitioner pursuant to CPLR 7511. 

            I. Background

Petitioner began employment in Brooklyn, 1987 as a pre-kindergarten teacher by respondent New York City Department of Education.  After an incident on May 10, 2008 petitioner was “charged with conduct unbecoming her position, conduct, prejudicial to the good order, efficiency, or discipline of the service, and endangering the welfare of a child.”  This was in response to petitioner’s responsibilities concerning a child’s release at dismissal.  The hearing officer “declined to terminate petitioner, finding that while it is (her) responsibility . . . to make sure her students are properly dismissed to the appropriate caregivers, the failure of the school to provide (her) with a substitute paraprofessional mitigates (her) culpability for the incident.”  However, petitioner was ordered to pay a fine of $1,000 for failing to ask for help during the end of the day procedures. 

            II. Contentions

Petitioner sought to prove that the hearing officer’s decision was not proper in accordance with CPLR 7511.

            III. Analysis

Petitioner was unable to prove that the hearing officer’s decision was based on corruption, fraud of misconduct.  The petitioner’s allegations of bias of the hearing officer were denied.  Petitioner contends that the New York City Board of Education did not vote on the above situation, that the hearing officer overstepped her position.  That in accordance to Education Law 3020-a(2)s, “the Board must vote on charges against a teacher to determine “whether probable cause exists to bring a disciplinary proceeding against (her) pursuant to this section.”” But, Education Law 2590-h(38) allows for the Chancellor and then community superintendents to “duties and responsibilities of the (Board).”  Hearsay is permitted therefore, the hearing officer reached her decision within allowance.  Hearing procedures and timeliness were also followed.  It was found that the award imposed was supported.  The petitioner’s argument that the hearing officer needed K.Z.’s testimony are without substance since the petitioner did not show how this addition would change the conclusion.  Lastly, the adequate punishment was inflicted as to the petitioner’s involvement in the event.  The petitioner displayed a lack of proposed help during the time of dismissal, and therefore, in part, responsible for the event. 

            IV Conclusion

The petition for an order to vacate the award was denied. 

 

NYC Tenured Teachers Petition to Expunge Letters of Reprimand Denied

In the Matter of Helen Hickey v. New York City Department of Education

In the Matter of Rachel Cohn v. New York City Department of Education

Petitioners Helen Hickey and Rachel Cohn are two tenured teachers who seek to have “letters of reprimand” removed from the personnel files for failure to follow Education Law § 3020-a procedures by filing an Article 78 petition against the Board of Education.

For Petitioner Hickey, the letters of reprimand placed in her file stated that she demonstrated incompetence and “unsatisfactory professional attitude” when preparing students for a field day. For Petitioner Cohn, the letter was a complaint filed with the Department of Education’s Office of Equal Opportunity. The complaint was in regards to a heated discussion with the principal, where Cohn told her to watch her “Latin temper.” The letters of reprimand was placed in both Petitioners’ file in 2008 and indicated that it “may lead to further disciplinary action.”

Respondent maintains that the letters were appropriately placed in their files according to the 2007-2009 Collective Bargaining Act (CBA). According to the 2007-2009 CBA, Petitioners’ union waived the section 3020-a procedures, allowing the letter of reprimand in tenured teacher’s filed and replaced it with a different procedure stated in Article 21A.

Supreme Court granted the petitions and ordered the letters be expunged from the Petitioners’ files. However, the Appellate Division reversed the decision and denied the petition.

According to Section 3020, “a CBA negotiated between respondent and the United Federation of Teachers, petitioners’ union, can modify or waive the 3020-a procedure.” The Supreme Court agrees that Article 21A of the 2007-2009 CBA states the procedure directing the placement of reprimands letter in tenured teacher’s files. Article 21A is broad provision that clearly states procedures for letters of reprimands and the issue in these two cases fell within the purview of Article 21A.

The Supreme Court concluded that the union knowingly waived the procedural rights granted in Education Law § 3020-a. Therefore the letters of reprimand are not subject to 3020-a procedures and Petitioners are not permitted to have them expunged.

For both cases, the Order is affirmed, with costs.

Read more about this Article 78 case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

3020-a Morrell v. DOE

In the Matter of Renee Morrell v. New York City Department of Education

 

Pursuant to CPLR 7511 and Education Law § 3020-A, Petitioner sought to vacate the findings and recommendations made by a hearing officer regarding her employment as a tenured teacher. The hearing officer found Petitioner guilty of disciplinary charges that were filed against her by the BOE, which served as just cause for termination.

 

Petitioner, Renee Morrell, has been teaching in the NYC public school system since 1993. In 2005-2006, Petitioner was working at P.S. M197. In May 2006, the school principal received a report regarding Morrell involvement in a physical altercation with a sixth grade male student. The case was referred to OSI.

 

OSI, then, interviewed the same people and substantiated that Petitioner had “punched and kicked” the student during a physical altercation. The Department of Education (DOE) charged Morrell with violating Chancellor’s Regulation A-420. “Chancellor’s Regulation A-420 enforces Department of Education Bylaws and includes reporting requirements established under Regulations of the Commissioner concerning the use of physical force upon a student for punishment purposes.

 

Once DOE received OSI results, DOE initiated a mandatory arbitration proceeding against Petitioner. Morrell’s charges included “…violation of Chancellor's Regulation A-420; just cause for disciplinary action pursuant to Education Law 3020-a; conduct unbecoming respondent's position or conduct prejudicial to the good order, efficiency or discipline of the service; substantial cause rendering respondent unfit to properly perform her obligations to the service; neglect of duty; and just cause for termination.”

 

There was a pre-hearing held on June 22, 2009 and six hearings from then until October 19, 2009. On May 2, 2010, the hearing officer made a written Opinion and Award stating that Petitioner “…is guilty as charged in Specification 1 insofar as on May 15, 2006, the Petitioner struck Student E.R. during a physical altercation, as well as pushed him into a wall (causing him to hit his head), sat on him, and shook him up and down.” Morrell’s conduct violates Chancellor's Regulation A-420 and results in just cause for termination.

 

Morrell received a copy of the finding and recommendation of the hearing officer from the Teacher Tenure Hearing Unit if the New York State Department of Education in a letter dated May 12, 2010. The letter informed Petitioner that she has the right to make an application to the court requesting to vacate or modify the decision

 

Education Law § 3020 oversees discipline of tenured teachers. For instance, any charges brought against a tenured teacher are first subjected to compulsory arbitration before a single hearing officer. “Education Law section 3020-a(5) provides that judicial review of a hearing officer's findings must be conducted pursuant to CPLR 7511. Under such review, an award may only be vacated on a showing of misconduct, bias, excess of power
or procedural defects. Nevertheless, where the parties have submitted to compulsory arbitration, judicial scrutiny is stricter than for a determination rendered where the parties have submitted to voluntary arbitration. The determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78. The party challenging an arbitration determination has the burden of showing its invalidity.”

 

Petitioner brought forth four contentions. First, Petitioner believes the arbitration award should be vacated due to untimeliness. According to the collective bargaining agreement, a hearing based on allegations of extreme misconduct should be completed within two to three months. Morrell’s hearing took place over an eight month period, from June 22, 2009 to February 5, 2010. Education Law § 3020-a states that the final hearing in a matter must be completed within sixty days from the pre-hearing conference and a decision must be made within thirty days of the final hearing. Petitioner’s decision was submitted 86 days after the final hearing date.

 

Although Morrell’s first contention is within Education Law § 3020, she still needed to demonstrate that she experienced form undue injustice as a result of the alleged delay. Petitioner was unable to show this; therefore the court decided her first contention is without merit.

 

Petitioner’s second contention is that she believes Respondent did not have a probably cause hearing as state in the collective bargaining agreement. When an employee is accused of serious misconduct, the employee would be removed from their position for not more than two month without pay. This can only happen after a finding by a “probable cause arbitrator”. Morrell does not dispute that she was ever suspended without
pay, as permitted by Article 21(G)(5) of the collective bargaining agreement and Respondent affirms “…that the contractual provisions relating to serious misconduct were not invoked by DOE or the hearing officer. Accordingly, the court finds that the provision does not apply to the facts of this proceeding.”

 

Morell’s third contention states that Respondent did not hold a expedited hearing as stated in the collective bargaining agreement. Respondent sought to terminate Petitioner from her position; therefore they were not required to hold an expedited hearing. Article 21(G)(3) of the CBA refers only to suspension, not termination.

 

Petitioner's last contention is that the arbitrator failed to direct respondent to furnish the student's record so that it could be entered into evidence. Article 21(G)(8) of the CBA states the discovery procedures for arbitration cases. This statue leaves the matter of furnishes the student records at the discretion of the hearing officer. Therefore, Petitioner needs to show that the hearing officer abused his discretion. Petitioner failed to do so.

 

The court concluded by denying the petition to vacate Respondent’s decision to terminate Morrell. The court found that the Respondent’s decision was made in accord with due process and maintained by sufficient evidence. Moreover, the court found “…that the decision was rational and satisfied the arbitrary and capricious standards of CPLR article 78.” Therefore, Petitioner has not met her burden of providing evidence of the invalidity of the arbitration determination. The proceeding was dismissed without costs and disbursements.

 

Read more about this Article 78 case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

Education Law 3020-a

For Teachers looking to find out about the Education Law 3020-a regulations follow the link to Education Law 3020-a.