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Decision No. 13,224

Appeal of YVONNE MCCALL from action of the Board of Education of the City School District of the City of Albany relating to employment practices.

Application of YVONNE MCCALL for the removal of the Board of Education of the City School District of the City of Albany pursuant to Education Law '306.

Decision No. 13,224

(July 22, 1994)

Stephen W. Herrick, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner, a tenured teacher, challenges her dismissal. In a related application, she seeks the removal of the Board of Education of the City School District of the City of Albany ("respondent"). Because the facts giving rise to these cases are related, they are consolidated here for decision. The appeal must be sustained in part, and the application for removal of the board must be dismissed.

Petitioner has been employed by respondent since 1980 and has been tenured as a health education teacher since 1985. In February 1993, respondent suspended petitioner. In Appeal of McCall, 33 Ed Dept Rep 148, I annulled that suspension due to respondent's failure to comply with Education Law '3020-a and ordered that any reference to the suspension be stricken from petitioner's records and personnel files. I further ordered that subsequent to an examination of petitioner pursuant to Education Law '913, respondent could file charges against petitioner in accordance with Education Law '3020-a.

On September 14, 1993, the date of my decision in Appeal of McCall, respondent filed 28 charges against petitioner pursuant to Education Law '3020-a, alleging incompetence and misconduct. Those charges were based on petitioner's alleged failure to comply with respondent's directive to undergo an examination pursuant to Education Law '913, the lowering or withholding of students' grades, the failure to attend meetings, the refusal to accept a teaching assignment, the failure to admit students to classes, the failure to report to a reassigned appointment after the February 1993 suspension and the defiance of the February 1993 suspension by entering the Albany High School and refusing to leave. On October 4, 1993, petitioner requested a hearing on the charges. On January 10, 1994, petitioner withdrew her request for a hearing.

On January 26, 1994, respondent advised petitioner by letter that due to petitioner's withdrawal of her hearing request, respondent would assess the charges and fix an appropriate penalty on January 31, 1994. That letter further stated:

...the Board will consider only those charges or specifications thereof that are consistent with the Commissioner of Education's Decision (13,005) dated September 14, 1993.

In a letter dated February 1, 1994, respondent informed petitioner that she had been found guilty of 25 of the 28 charges. Respondent further informed petitioner that her employment was terminated. Charges XXIII, XXV and XXVI were not sustained. This appeal and application followed.

Petitioner asserts that the charges filed against her are untimely. Petitioner also asserts that the charges should have been amended to specify which charges respondent intended to pursue in light of the Commissioner's prior decision. She seeks reinstatement, back pay and the removal of the board of education for failure to comply with the prior decision of the Commissioner.

Respondent contends that petitioner has not properly commenced her application for its removal pursuant to Education Law '306. Further, respondent argues there is no basis for the removal proceeding because there was no violation of the Commissioner's decision and, in the alternative, any board action was taken on advice of counsel. Respondent further argues that the charges upon which petitioner was found guilty were not amended because "... the time provisions and service and filing requirement of '3020-a would ... have all commenced anew." In defense of the allegation of its failure to comply with the prior Commissioner's decision, respondent asserts that after several unsuccessful attempts to have petitioner examined pursuant to Education Law '913, respondent decided to discontinue such attempts and instead filed '3020-a charges.

As a preliminary matter, petitioner has failed to name any board member individually, although she seeks their removal. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner must be joined as a party (Application of Aarseth, 32 Ed Dept Rep 626; Appeal of Basile, 32 id. 330; Appeal of Osterman, 30 id. 290). Because a ruling in petitioner's favor would adversely affect all the board members, her failure to join them individually, requires the dismissal of her application for non-joinder of necessary parties.

The application to remove the board must be dismissed on the merits as well. Section 277.1 of the Commissioner's regulations requires that an application seeking removal of a school officer, set forth:

the willful violation of law, neglect of duty, or willful disobedience of a decision, order or regulation of the commissioner charged against the officer and the facts by which it is established;... [which] must be set forth with such certainty as to time, place and all other pertinent details, as to furnish the officer with precise information as to what he is expected to meet;....

Education Law '306 authorizes the Commissioner of Education to remove a trustee or member of the board of education for wilful violation or neglect of duty under the law (Education Law '306; Application of Marshall, et al., 33 Ed Dept Rep 26; Application of Steenrod, 32 id. 490). To be considered wilful, respondent's actions must have been intentional with a wrongful purpose (Appeal of Landgrebe, 32 Ed Dept Rep 49; Appeal of Griffin, 31 id. 221). However, a board member who acts in good faith on the advice of counsel cannot be found to have the requisite wilfulness to warrant removal from office (Appeal of Landgrebe, supra; Appeal of Griffin, supra; Application of Cotroneo, 29 Ed Dept Rep 421). The record reflects that any action taken by individual board members in this case was on advice of counsel. Therefore, any alleged violation of law or order of the Commissioner is not grounds for their removal.

With regard to the charges initiated by respondent, a teacher is entitled to written charges specifying in detail the allegations supporting such charges (Education Law '3020-a; Soucy v. Board of Ed. of North Colonie CSD, 41 AD2d 984, app. d'ssd 33 NY2d 624). The charges must be sufficiently precise to enable the employee to adequately prepare and present a defense (Adamson v. Haldane CSD, 77 AD2d 652). The charges filed on September 14, 1993 were never amended after the September 14, 1993 Commissioner's decision. By respondent's own admission, the charges were not amended specifically to avoid recommencing time, service and filing requirements. The failure to amend the charges prior to respondent's findings deprived petitioner of her right to notice of the specific charges that were to be considered on January 31, 1994. Moreover, after being informed by respondent that it would only consider charges consistent with the September 14 Commissioner's decision, respondent found petitioner guilty of some of the very charges it stated it would not consider. For example, Charges XXII, XXIII, XXIV, XXVI and XXVII either directly or indirectly reference the February 1993 suspension, which I stated in the previous decision must be expunged from petitioner's records. Therefore, such charges were improper, should have been deleted, and the finding of guilt on them must be overturned.

Furthermore, numerous charges reference petitioner's failure to acquiesce to a medical examination pursuant to Education Law '913. The September 14, 1993 Commissioner's decision nullifies these charges by stating:

However, should petitioner acquiesce to an examination in accordance with '913, respondent must commence her pay from the date she agrees to such examination. Nothing, however, in this decision precludes respondent from filing charges against petitioner in accordance with Education Law '3020-a subsequent to such an examination.

This language clearly contemplates that petitioner would be afforded the opportunity to acquiesce to a '913 examination without penalty. Moreover, the record reflects that before and subsequent to the September 14, 1993 Commissioner's decision, petitioner did acquiesce to being examined pursuant to Education Law '913. Therefore, the charges relating to petitioner's refusal to acquiesce to a '913 examination which occurred prior to the rendering of the Commissioner's decision are improper. Accordingly, the finding of guilt on Charges I, II, IV and V, which relate to petitioner's failure to comply with '913, must be overturned.

Moreover, respondent failed to comply with the September 14, 1993 Commissioner's decision by filing '3020-a charges against petitioner prior to having her examined pursuant to '913. The decision clearly states that charges may be filed subsequent to a '913 examination. By their own admission, respondent asserts that after several unsuccessful attempts to have petitioner examined pursuant to Education Law '913, due to the unavailability of a school district selected physician, respondent decided not to continue to attempt to examine petitioner and instead filed '3020-a charges.

With regard to respondent's written findings of guilt, a decision which is devoid of analysis and fails to state the facts upon which the decision is based must be annulled (Kinsella v. Board of Education, 378 F Supp 54, aff'd without opinion 542 F.2d 1165; Appeal of the Board of Education of the Greenburgh CSD, 33 Ed Dept Rep 526; Appeal of Cauley, 33 id. 502; Matter of Driscoll, 15 id. 200). Respondent's decision in this case is devoid of reasoning and fails to state even one fact upon which it is based. The decision must, therefore, be annulled and petitioner must remain suspended with pay pending a decision in accordance with Education Law '3020-a.

Since the charges were filed prior to the completion of a '913 examination, in contravention of my September 14, 1993 decision, and because I find the determination inadequate to support a substantive review consistent with Education Law '310, I make no determination on the merits of the substantive claims raised in this proceeding.

I have reviewed petitioner's remaining contentions and find them without merit.

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that petitioner be awarded back pay from the January 31, 1994 dismissal and that she remain suspended with pay pending the filing of new charges by respondent consistent with applicable statutes of limitations and the requirements of Education Law '3020-a.

IT IS FURTHER ORDERED that any new charges filed by respondent against petitioner pursuant to Education Law '3020-a shall not include any direct or indirect reference to the February 1993 suspension.

THE APPLICATION FOR REMOVAL IS DISMISSED.

END OF FILE