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