Guide to Understanding Teacher Discipline

 I have prepared a Primer on Understanding Teacher Discipline.  

Click here for the Guide to Understanding Teacher Discipline

Teacher's Improper Enrollment of granddaughter does not warrant Termination

 In a case handled by the  Law Office of Glass & Krakower an arbitration award was reversed and  but one portion of the arbitrator’s determination was  affirmed.  The facts underlying this case were:  a Public School Teacher enrolled her granddaughter in a school whose geographical  district the child did not reside in.  The arbitrator recommended termination of the employee.  On appeal it was found that the child was a City resident and accordingly was entitled to a tuition- free education.  The final determination of the appeals court was that the teacher had filed a false instrument but the penalty of termination was inappropriate and this case was sent back to the lower court to impose a lesser appropriate penalty.

Teacher's Contract Protest Protected by 1st Amendment Free Speech

 East Meadow school district fined Richard Santer $500 after he parked his car at the curb and placed his contract protest sign in the car window on a rainy day.  On other days the teachers protesting for a better contract walked on the sidewalk in front of the school.  East Meadow School District filed charges pursuant to Education Law Section 3020a.

The Second Department held that review under Section 75 is broad and requires: 1) the arbitrator's determination display good faith under the law and in the record and 2) the determination must not be arbitrary and capricious.

The arbitrator found that Santer "intentionally created a health and safety risk by purposely situating his vehicle alongside the curb of Westwood Drive prevented the school buses from dropping the kids off at curbside.  The arbitrator sided with the school district and found Santer culpable.  The Supreme Court, Nassau County confirmed the determination after Santer filed a CPLR Section 75 appeal.

The Appellate Division, Second Department reversed and held that Santer had a protected First Amendment right to protest because contract rights are a "matter of public concern."

Read about this 3020-a and CPLR 75 case here.

 

The Court Found That a Hearing Officer's Decision of Suspension was Fair against Tenured Teacher

            The DOE, Petitioner, started an Article 75 proceeding that sought to vacate an arbitration award made after a disciplinary hearing against Respondent, a twenty-three year tenured teacher. 

          Respondent encountered with a female student where he “inappropriately touched her bare shoulders and neck and made sexually charged comments to her.” After trial, Respondent was acquitted of Endangering the Welfare of a Child. 

          The Hearing Officer found that Respondent was “culpable of some of the DOE charges leveled against him” but that the DOE failed to prove other charges.  Therefore, directed that Respondent be suspended for one half year without pay and then be permitted to return to work as a classroom teacher.

          The Hearing Officer found that Respondent was engaged in a “sexually charged banter with an introverted student” and was not soliciting sex.  The Hearing Officer stated that “there are situations where a single incident could require termination, however, this was not one of them.” Additionally, “any repeat behavior of the type for which he was charged will lead to termination.”

          DOE commenced these proceedings seeking to vacate the penalty “on the ground that the penalty was grossly inadequate, inconsistent with the hearing officer’s findings, and in violation of public policy.”   

          The Court found that the evidence presented “did not demonstrate a continued pattern of offensive behavior that reflects inability to understand the necessary separation between a teacher and his students.” “The ultimate penalty of dismissal is reserved for those situations involving the most egregious conduct, where no measure of alternative deterrence would be effective.”  The Hearing Officer analyzed the facts and circumstances and concluded that they did not warrant the penalty of dismissal.  The Court found that the penalty imposed “was not so disproportionate to the offense to be shocking to one’s sense of fairness.”  The petition was denied and the arbitration award confirmed. 

 

  http://decisions.courts.state.ny.us/fcas/fcas_docs/2012MAR/3004001082011001SCIV.pdf

 

Court Upheld DOE's Penalty Against Tenured Teacher

Joanna Stergiou v. New York City Department of Education

 

          Petitioner, a tenured teacher, moved to vacate an arbitration award pursuant to CPLR 7511. 

          Pursuant to Education Law 3020-a, the DOE sought to terminate petitioner’s employment due to: “insubordination, incompetent and inefficient service, misconduct, corporal punishment and conduct unbecoming her profession.”

           According to agreement between DOE and the United Federation of Teachers, compulsory arbitration and a selected hearing officer were required to determine the DOE’s charges against Petitioner.  The penalty imposed by the hearing officer was an eight (8) month suspension without pay and completion of remediation courses to improve her skills within the classroom. 

          Petitioner argues that the hearing officer did not consider and address her defense under Civil Service Law 75-b.  Petitioner stated that the Assistant Principal allegedly “wrongly directed her and other teachers to increase the grades of failing students.”  Petitioner argues that the hearing officer allowed for testimony of children without determining their competency.  Also, that the hearing officer violated her due process rights when she was excluded from the hearing with the minors testified.  Lastly, that the hearing officer was biased in her decision.

          The Petitioner’s retaliation defense, “whistle-blowing” must be considered by the hearing officer.  The court found that the hearing officer clearly considered the defense and denied it based upon credible evidence. 

          Regarding the incompetent witness/failure to confront witness argument the court found that the hearing officer did conduct a preliminary examination and found the minors able to take an oath.  Considering the Petitioner’s claim due process rights were denied, the Court found the claim unpersuasive in that Petitioner does not have an absolute right within an arbitration/administrative disciplinary hearing.  As well, Petitioner’s counsel was allowed to cross-examine the minors on Petitioner’s behalf. 

          In accordance with Petitioner’s bias claim, the Court found it to be unproved and unsupported speculation. 

          The court found that the “penalty imposed on petitioner is not shocking to the conscience or disproportionate to the charged offenses.”  Therefore, the Award was found to not be arbitrary and capricious and the petition was denied and the proceeding was dismissed. 

 

http://decisions.courts.state.ny.us/fcas/fcas_docs/2012MAR/3001033702011001SCIV.pdf

Court Upheld "Warning" to Suffice for Tenured Teachers Misconduct

Board of Education of the City School District of the City of New York and Dennis M. Walcott, as Chancellor of the Board of Education of the City School District of the City of New York v. Tonia Hemingway

 

          Petitioners, the Board of Education of the City of New York DOE and Walcott moved for an order, pursuant to CPLR 7511 to vacate or modify an arbitration award made against Respondent, a tenured teacher, after a disciplinary hearing that was held pursuant to Education Law 3020-a.  The penalty was a disciplinary decision that was placed in her file as a warning.  Respondents sought a harsher penalty for Respondent’s conduct, that the penalty should be vacated and the matter remanded to the hearing officer to impose a just punishment.  Respondent cross moved to dismiss the petition, confirm the award, as well for costs of attorney’s fees and to impose financial sanctions to Petitioners. 

          Respondent was a tenured teacher for twelve years.  Respondent was “arrested and charged with violating 18 USC 641, HUD Section 8 Housing Fraud”, she then pled guilty “in federal court to fraudulently representing her income on her Section 8 housing subsidy application for the years 2005-2008 for the purpose of fraudulently obtaining the housing subsidy.”  Her punishment was three years probation and a fine of $46,872 in restitution to HUD. 

          Respondent did not notify the DOE’s Office of Personnel Investigation of the arrest and charges she had obtained, this in violation of Chancellor’s Regulation C-105. 

          The DOE served Respondent with disciplinary charges pursuant to Education Law 3020-a stating that Respondent engaged in “criminal conduct, conduct unbecoming to the profession, misconduct and neglected her duties” from 2005-2006 school year to 2010-2011 school year.  The BOE “asserted that as a result of her alleged actions, there was just cause for her termination.” 

          Respondent had a disciplinary hearing pursuant to Education Law 3020-a.  The hearing officer found that Respondent was guilty of all charges, misconduct and conduct unbecoming a teacher.  “The hearing officer also found Respondent’s regret and quick action regarding Chancellor’s Regulation C-105 once she became aware of its requirements insured that a warning would suffice when considering repeating this behavior.  The hearing officer did not believe that Respondent’s behavior justified termination.  That Education Law 3020-a “is not a punitive statute, and that to terminate Respondent “solely on her commission of a crime related to her salary would be punitive and unrelated to her fitness to teach.””

          Petitioners commenced this proceeding seeking to vacate or modify Respondent’s arbitrator’s award because “the penalty is inherently inconsistent and totally irrational, and that the penalty shocks the conscience.” 

          Petitioners must prove that the hearing officer’s award showed “misconduct, bias, excess of power or procedural defects.”  “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.”  Also, a hearing officer’s decision “must be upheld unless it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law.”

          The court decided that the hearing officer’s decision was rational and came from a thorough and thoughtful analysis of the evidence provided.  Additionally, the hearing officer’s decision was not shocking to the conscience.  Therefore, there was no reason to disturb the award, the petition was denied and the arbitrator’s award was confirmed. 

 

Board of Ed v. Hemingway

 

Court of Appeals: Terminated Probationary Teachers have 4 months to file Article 78

Terminated probationary teachers had been faced with a dilemma-should I file an Article 78 within four months of my termination and have the respondent's move to dismiss my petition for "failing to exhaust my administrative remedies" or wait for the decision of an internal appeal and have Respondent's move to dismiss their Petition as untimely having been filed more than 4 months after the termination date. 

New York State's highest court apparently resolved this conflict and decided on February 14, 2012 that probationary teachers have four months to file an Article 78 to appeal their termination.  The 4 months time limit runs from the final day of service.

Leslie Khan and Doreen Nash did not file Article 78 petitions within 4 months of their terminations.  Leslie Khan was terminated "... as of the close of business January 25, 2008"  She filed a DOE appeal of her probationary termination on January 3, 2008.   Despite the committee's non-concurrence with the termination on May 9, 2008 the superintendent informed Khan that she "reaffirmed the previous action dated January 25, 2008.  On September 9, 2008 Khan initiated an Article 78.  

Doreen Nash started working for the DOE on September 3, 2002.  In 2005 she received a "U" for the 2004-2005 school year. On June 16, 2005 Nash filed a DOE appeal.  Nash's employment was terminated July 15, 2005.  The Chancellor's Committee held a meeting on May 10, 2006 and recommended "non-concurrence".  Nevertheless, the superintendent of Brooklyn High Schools reaffirmed Nash's discontinuance as of "close of business July 18, 2005" Nash filed an Article 78 on September 10, 2008. 

The Court held that both Khan and Nash had 4 months to appeal their termination.  Their filing internal Chancellor Committee appeals did not extend the limitation of time to file an appeal.  

The Court explained: " Because a determination pursuant to Education Law 2573(1)(a) to discontinue a probationary employee's service becomes final and binding on that employee on his or her last day at work-as Frasier holds-CPLR 217 (1) dictates that any suit to challenge the determination must be commenced within four months after that date. 

You can read the Probationary teacher Khan case here. 

Court Upheld School District's Decision that Probationary Teacher Did Not Acquire Tenure by Estoppel

Matter of Andrews v. Board of Education of the City School District of the City of New York

 

          Petitioner sought pursuant to CPLR article 78 to “acquire tenure by estoppel and to compel respondents to reinstate her as a tenured teacher.” 

          Petitioner never received a 60-day written notice that she was not recommended for tenure.  This is mandated by Education Law 2573(1)(a) and 3012(2).  She had gone to work the day after her probationary term ended. 

          The Court did not find that Petitioner had acquired tenure by estoppel as respondents did not “with full knowledge and consent” consent to Petitioner’s return to work after her probationary period ended.  Petitioner had knowledge of her discontinuance of service in March of 2009 and when she reported to work after her probationary term expired, was told immediately of her termination and was given no assignments.  Respondent’s proceedings “speak loudly against any supposition that (they) meant to perpetuate (petitioner’s) employment.” 

         

Termination of Probationary Teacher Based Upon Violated DOE Rules is Ordered Back to the DOE for Final Review and Recommendation

Matter of Kolmel v City of New York

 

          Petitioner seeking to annul the determination of the City of New York Department of Education, denying certification of completion of probation and terminating employment as a probationary teacher, as well as denying his appeal of petitioner’s “U” rating for the 2008-09 school year. 

 

          The Court decided to unanimously reverse and the petition was granted annulling the “U” rating and remanding the matter to the DOE for proper completion of the final review and recommendation.

 

          Petitioner was a probationary teacher for three years, receiving satisfactory reviews and reports for each school year.  Petitioner agreed to extend his probationary period into the 2008-09 school year.  This year he received two unsatisfactory and satisfactory classroom reports.  The principal gave him an unsatisfactory rating for each category within the year-end report resulting in a U-rating for the 2008-09 school year.  Petitioner was then denied certification of completion of probation which required his termination and disallowed him from being hired elsewhere in the City.

 

          Although petitioner’s unsatisfactory reviews within the 2008-09 school year could suffice as rational support that he had not developed enough to be a proficient teacher, there is evidence that proves other.

 

          Petitioner submitted evidence that the principal, who made the final determination of the “U” rating for the 2008-09 school year, did not observe the petitioner’s teaching within his last two years of teaching.  This violates the DOE’s rules when considering teachers reviews, that require at minimum one observation (by the principal) and pre-observation meetings with probationary teachers in danger of “U” ratings.  The principal’s year end evaluation was without evidence and seemed arbitrarily completed.  A current DOE employee submitted a statement that the principal would pressure assistant principal’s into giving undeserved “U” ratings without observation.  “These deficiencies in the review process leading to the recommendation to deny tenure and terminate petitioner’s employment are not merely technical, but undermined the integrity and fairness of the process.” 

Court Upholds Decision Where a Teacher Improperly Dismisses A Child and is Ordered to Pay Fine

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 with 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. 

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. 

 

NYS Teacher's Union sues to block new evaluation process

The Wall Street Journal reports that New York State's largest teacher's union (NYSUT) has filed suit in Supreme Court in Albany  to block the State Education Department's new evaluation protocol in which 40% of teacher's rating could be based on their students grades on standardized testing.  The State believes that this process could eliminate ineffective teachers while the Union  believes that having 40% of the rating based on standardized tests is improper.  Read the NYS Teacher Rating story here. 

The New York Times reporter looked at the financial angle of school district finding ways to assess their using the  20% of the total evaluation at their discretion.  While wealthier districts would have the resources to design assessment protocols the less wealthy districts would probably have to raise evaluation scale to 40% based on the standarized testing.  Read the NY Times take on this NYS teacher evaluation lawsuit.