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Decision No. 13,390

Application of YVONNE MCCALL for an order withholding public funds from the Board of Education of the City School District of the City of Albany pursuant to Education Law '306.

Decision No. 13,390

(March 31, 1995)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Stephen W. Herrick, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a tenured teacher employed by respondent, seeks an order withholding public funds from the Board of Education of the City School District of the City of Albany. The petition must be dismissed.

Employed by respondent since 1980, petitioner 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 ("McCall I"), I annulled that suspension because respondent failed to comply with Education Law '3020-a, and ordered that any reference to the February 1993 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, respondent filed 28 charges against petitioner pursuant to Education Law '3020-a. Subsequently, respondent found petitioner guilty of 25 of the 28 charges and terminated her employment. Petitioner commenced a second appeal to challenge her dismissal. In Appeal of McCall, 34 Ed Dept Rep 29 ("McCall II"), I annulled the dismissal because respondent failed to comply with my previous decision requiring respondent to examine petitioner pursuant to '913 prior to filing charges. I also annulled respondent's findings of guilt because they were devoid of analysis. I further found that respondent failed to notify petitioner of the specific charges lodged against her. In McCall II, I ordered that petitioner be awarded back pay and that she remain suspended with pay pending the filing of new charges. I further held that the new charges must not repeat or refer to charges that formed the basis of the illegal February 1993 suspension. On October 4, 1994, respondent filed new charges against petitioner. This appeal followed.

Petitioner asserts the October 4, 1994 charges are untimely. She also asserts that such charges are not new, as required in McCall II. Petitioner further argues that respondent, by failing to seek a reopening of the Commissioner's decision in McCall II, willfully disobeyed the Commissioner's order. For relief, petitioner seeks an order withholding payment of public money to respondent. Respondent counters that there was no willful violation of the Commissioner's order because new charges were filed in accordance therewith.

There is no merit to petitioner's contention that the October 4, 1994 charges are old charges. Petitioner's claim that they are illustrates her confusion about the meaning of my prior decision in McCall II. Her assertion that respondent is precluded from mentioning any incidents stated in previously dismissed charges is simply wrong. In my previous decision, I stated that any new charges could not refer directly or indirectly to the February 1993 suspension. My previous decision did not preclude respondent from filing new charges which reference incidents mentioned in the previous charges except in incidents leading up to the February 1993 suspension. As stated previously in Appeal of McCall II, the only qualification is that new charges must comply with all applicable statutes of limitations and the requirements of Education Law '3020-a. I ordered the filing of new charges to give petitioner an adequate opportunity to defend against them. The October 4, 1994 charges preferred against petitioner ensured her right to defend against them in accordance with Education Law '3020-a. Accordingly, I find respondent's October 4, 1994 charges to be new in accordance with my previous order.

Education Law '306(2) allows the Commissioner to withhold from any district its share of public money of the State for willfully disobeying any provision of law or any decision, order or regulation. To be considered willful, respondent's actions must have been intentional with a wrongful purpose (Application of McCall, 34 Ed Dept Rep 29; Application of Landgrebe, 32 id. 49). However, a board member who acts in good faith on the advice of counsel cannot be found to have the requisite willfulness to warrant the withholding of public funds (Appeal against the actions of BOCES, Third Supervisory District, Suffolk County et, al., 32 Ed Dept Rep 519; Matter of Gross v. Board of Education, 46 Misc. 2d 987; Matter of Rojek and Spadone, 24 Ed Dept Rep 434; Matter of Young, 24 id. 313).

The record reflects that on advice of counsel, respondent voted on October 4, 1994 to prefer charges against petitioner pursuant to Education Law '3020-a. As noted above, those new charges complied with my previous order. Moreover, even if these charges were not new, because respondent acted in apparent good faith upon advice of counsel, its actions could not be deemed willful and, accordingly, do not warrant the withholding of public funds.

Additionally, petitioner's contention that respondent violated the Commissioner's order by failing to seek reopening of the previous decision is without merit. No party is required to seek a reopening of a prior decision pursuant to 8 NYCRR 276.8. Accordingly, respondent's failure to seek a reopening was not in violation of the Commissioner's order.

Finally, petitioner's assertions that the charges are untimely and must be dismissed are not issues within my jurisdiction. Petitioner's request to have me dismiss the charges requires my review of the merits. However, pursuant to an amendment to Education Law '3020-a, effective September 1, 1994, review of '3020-a determinations, including all motions regarding the sufficiency and timeliness of charges, is no longer within the jurisdiction of the Commissioner of Education.

THE APPLICATION IS DENIED.

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