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Decision No. 13,156

APPEAL OF THE BOARD OF EDUCATION OF COMMUNITY SCHOOL DISTRICT NO. 17 OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK from a determination rendered by a hearing panel convened pursuant to Education Law "3020-a concerning disciplinary charges preferred against Anonymous, a tenured teacher.

Decision No. 13,156

(April 18, 1994)

Lawrence E. Becker, Esq., attorney for petitioner, Everett N. Hughes, Esq., of counsel

James R. Sandner, Esq., attorney for respondent, Richard A. Shane, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the determination of a hearing panel convened pursuant to Education Law "3020-a dismissing all charges preferred against respondent. The appeal must be sustained in part.

Except for 1978 through August 1979, since 1973 respondent has taught continuously in the City School District of the City of New York ("the City"). Prior to his reappointment in 1979 to teach in Community School District No. 17, respondent taught in Community School District No. 31. As a result of acts he allegedly committed while teaching in Community School District No. 31, respondent became the subject of a criminal investigation involving "Endangering the Welfare of a Child." Soon thereafter, respondent resigned from his position and criminal charges were never filed against him. According to testimony of the assistant district attorney involved in the 1978 investigation, he agreed not to prosecute at that time based on respondent’s agreement to resign his position and never teach again. Regardless of any agreement, respondent, nonetheless, cited "personal affairs (medical considerations)" as the reason for his resignation. In 1979, one year after his resignation, he reapplied to the Board of Education of the City of New York for a teaching position, citing "health" on his reapplication as the reason for his original resignation. Respondent was rehired in 1979 and resumed teaching in Community School District No. 17.

In 1989, Community School District No. 17 received a complaint against respondent that precipitated an investigation which uncovered the events that had prompted respondent’s original resignation in 1978. On June 14, 1989, the Board of Education of Community School District No. 17 ("petitioner") charged respondent with five specifications of sexual and other misconduct involving alleged criminal conduct based on the same incidents which had been the subject of the 1978 criminal investigation, and one based on an incident in 1987. Respondent was also charged with a sixth specification alleging that his return to teaching in 1989 violated his 1978 agreement with the district attorney’s office. Respondent was also charged with a seventh specification based on an incident in 1987.

Respondent moved to dismiss all the charges on the grounds that they lacked specificity and, further, that the prosecution was barred by the statute of limitations and laches. Respondent also argued that petitioner lacked jurisdiction to prefer charges based on incidents that occurred while he was employed in another community school district. Petitioner argued that because the specifications also involved crimes under the Penal Law, respondent had waived the six month statute of limitations established by Education Law "2590-j(7)(c).

Between December 14, 1989 and March 22, 1990, the panel heard oral argument on respondent’s motion to dismiss and testimony on the specification involving his alleged misconduct in 1989. On August 27, 1990, the panel granted respondent’s motion and dismissed with prejudice all of the specifications alleging criminal conduct as untimely, based on its finding that petitioner had failed to set forth the specific elements of the respective crimes. For example, the panel dismissed those specifications which alleged that the acts constituted the crime of "Endangering the Welfare of a Child" on the ground that petitioner failed to allege an essential element of the crime, i.e., that respondent "knowingly acted in a manner likely to be injurious to the physical, mental or moral welfare of a child." The panel also dismissed those specifications involving Criminal Solicitation in the Fifth Degree, Disorderly Conduct, Harassment, and Possession of a Knife or Instruments on the ground that under the Penal Law, they were deemed to be violations and, therefore, did not constitute crimes. In other instances, the panel found that petitioner not only failed to allege each element of the underlying crime, but also failed to allege facts to support the elements of the crime.

The panel also dismissed Specification VI which alleged misconduct in 1989 for respondent’s violation of the agreement entered into with the District Attorney in 1978. The panel held an evidentiary hearing on this one charge, and determined that the evidence presented by petitioner was insufficient to prove that respondent specifically agreed to resign from teaching forever. The panel also concluded that Specification VI was untimely under Education Law "2590-j(7)(c), because even if the misconduct alleged therein had been proved, it would have occurred in 1978 at the time respondent rescinded his resignation.

The panel concluded by finding that even if the specifications involved crimes they would have been dismissed on the ground of equitable estoppel, based on its conclusion that despite the decentralization laws, petitioner was deemed to have knowledge of the events in 1978 prompting respondent’s resignation.

Petitioner contents that the panel erred by dismissing the charges and finding untimeliness because they either allege conduct which constitutes a crime or were filed within six months of their occurrence. Regarding the equities, petitioner asserts that the panel erred in dismissing the specifications and asserts its authority to raise claims involving incidents that occurred when respondent was employed in Community School District No. 31. Finally, petitioner contends that the panel exceeded its authority in granting respondent’s motion to dismiss with prejudice.

Respondent asserts that the panel’s decision dismissing the charges was proper and should be upheld. Respondent also raises five affirmative defenses, including lack of personal jurisdiction, standing, failure to file timely charges or allege facts that under the Penal Law constitute elements of crimes, laches, and lack of specificity of the charges.

The threshold question presented in this appeal is whether Community School District No. 17 has standing to prefer charges against a teacher in its employ based on incidents which occurred when the individual was employed by another community school district. Education Law "2590-j(7)provides that:

Each community board shall have authority and responsibility with regard to trials of charges against any members of the teaching or supervisory service staffs of the schools within its jurisdiction(emphasis added).

Consistent with law, teachers are deemed to be within the district’s jurisdiction for purposes of a "3020-a proceeding as long as they are in its employ. Since respondent was employed by Community School District No. 17 at the time the charges were brought, the fact that the conduct charged occurred when the individual was employed elsewhere does not constitute grounds to dismiss the appeal.

Moreover, I find that the petition was timely. The record shows that it was served within 30 days of the panel’s decision as required by Commissioner’s regulation 8 NYCRR275.8(a), despite the fact that petitioner was directed by my Office of Counsel to re-serve the papers with a notice which it previously omitted (see, Appeal of Rheinhold, 30 Ed Dept Rep 166).

With respect to the issue of personal jurisdiction, "275.8(a) of the Commissioner’s regulations requires that a petition be served by an individual who is not a party to the appeal. The parties to this appeal are the teacher and Community School District No. 17, not the New York City Board of Education. Since the New York City’s Director of Appeals and Review served the petition and is employed by the City Board of Education—respondent’s claim challenging proper service is without merit.

Turning to the merits of the appeal, Education Law "2590-j(7)(c) provides that:

No charges shall be brought more than six months after the occurrence of, the discovery thereof, or the date when discovery should have occurred upon the exercise of due diligence, of the alleged misconduct except where the charge is of misconduct constituting a crime when committed. (emphasis added)

As recognized by the Court of Appeals in Matter of Aronsky v. Board of Educ. CSD No.22, 75 NY2d 997, 557 NYS2d 267 (1990), the term "crime" as used in Education Law:

has a precise and well settled legal meaning in the Penal Law and, therefore, the exception to the six month statute of limitations in Education Law "2590-j(7)(c) should only apply when the specific facts alleged in the charge constitute a crime under our Penal Law. In addition, requiring proof of the basic elements of a particular crime to invoke Education Law "2590-j(7)(c)’s extended statute of limitations is necessary to provide certainty to Education Law proceedings and to protect the due process rights of tenured teachers.

Similarly, in Appeal of Bd. Of Ed., East Irondequoit Central School District, 20 Ed Dept Rep 634, the Commissioner instructed a "3020-a panel in deciding a motion to dismiss, to review

The factual allegations contained in the charges and compare those allegations with the Penal Law provisions alleged to have been violated. It must then decide whether, if proven, the conduct alleged would constitute the elements of the Penal Law violation charged against respondent teacher. If the panel finds that the conduct as alleged in the charges would, if proven, constitute a violation of the Penal Law provisions in question, then it must permit (the District) to proceed to attempt to prove those charges.

Thus, under this standard, charges brought under the extended statute of limitations conferred by Education Law "2590-j(7)(c), would survive a motion to dismiss where petitioner alleges conduct which, if proven, constitutes the elements of a crime specified in the Penal Law.

It appears that the panel dismissed the specifications involving alleged crimes of "Endangering the Welfare of a Child," on the ground that soliciting children to engage in various sexual acts along cannot be considered child endangerment. However, the panel offers no basis for this conclusion. Moreover, in view of well-established case law, including a decision by the State’s highest court which recognized that such a solicitation constituted child endangerment, I also find its ruling contrary to law (People v. Rice, 17 NY2d 881, 271 NYS2d 307 [1966]; People v. Ahlers, 98 AD2d 821, 470 NYS2d 483 [3d Dept 1983]; People v. Doe, 137 Misc. 2d 582, 521 NYS2d 636 [Crim.Ct.,NY County 1987]).

Commissioner’s regulation at "82.10(e) provides, in pertinent part,that:

The chairman of the panel shall decide all motions and objections, but he may not dismiss the charges with prejudice, without the consent of the complainant or his attorney (emphasis added).

Consistent with law and regulation, I find that the panel properly granted respondent’s motion on the ground that petitioner had either failed to allege a crime or had failed to allege each element of the crimes referred to in Specifications I, II, III, IV, V and VII. Nonetheless, the panel exceeded its authority by dismissing these specifications with prejudice without the opportunity for a full hearing on the merits. Since petitioner objected to the dismissal, the panel chairperson’s only option under the regulation was to dismiss these charges without prejudice to enable petitioner to refile its specifications with the specificity required by the Court of Appeals in Matter of Aronsky, supra.

Unlike these other charges, Specification VI was dismissed by the panel after a hearing on the merits consistent with the procedures set forth in Matter of Bd. of Ed., East Irondequoit, supra. Since the evidence in the record supports the panel’s finding that petitioner never proved that respondent agreed to resign from teaching permanently in exchange for the District Attorney’s decision not to prosecute, there is no basis for met to substitute my judgment for the panel’s on that charge.

As to the remaining charges, in the absence of any factual basis to establish that petitioner had actual knowledge of the events of 1978, it would be improper for the panel to dismiss this case for equitable reasons on the ground that Community School District No. 17 must, nonetheless, be deemed to have had such knowledge.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the chairperson of the hearing panel afford petitioner the opportunity to resubmit the charges based upon Specifications I, II, III, IV, V and VII within 30 days from the date of its receipt of this decision, subject to the right of respondent to challenge such specifications in accordance with the provisions of 8 NYCRR 82.10(e).

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