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Decision No. 13,947

Appeal of JEANNE B. WILLIAMS from action of the Board of Education of the City School District of the City of New York, Chancellor Rudolph F. Crew and Superintendent Granger Ward regarding teacher discipline.

Appeal of JEANNE B. WILLIAMS from action of the Board of Education of the City School District of the City of New York regarding teacher discipline.

Decision No. 13,947

(May 29, 1998)

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Andrea Fastenberg, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges disciplinary actions taken against her as an employee of the City School District of the City of New York. Because both appeals are based on the same facts and seek the same relief, they are consolidated for decision. The appeals must be sustained in part.

Prior to the events that are the basis of this appeal, petitioner was a tenured science teacher at the Park West High School in respondents' school district. By letter dated January 26, 1995, Patricia Black, Superintendent of Manhattan High Schools, notified petitioner that she was being temporarily reassigned to the Superintendent's office pending the preferral of charges against her for insubordination. Petitioner alleges that as of February 1, 1995, she was suspended with pay, although she continued to have assigned duties in the Superintendent's office.

On September 25, 1996, in executive session, the Board of Education found probable cause to prefer charges against petitioner. She received a copy of a "Notice of Determination of Probable Cause on Charges Brought Against Tenured City School District Employee: Section 3020-a Education Law," with two specifications, both alleging to constitute a neglect of duty as follows:

Neglect of duty;

Conduct unbecoming one's position, or conduct prejudicial to the good order, efficiency or discipline of the service;

Substantial cause that renders the employee unfit to perform one's obligations properly to the services; and

Just cause for charges under Education Law ' 3020.

Specification I was based on events that occurred between October 24, 1994 and January 26, 1995, when petitioner taught science at the Park West High School. Specification II was based on absenteeism and tardiness during the 1995-96 school year when petitioner was assigned to the Superintendent's office.

Petitioner also received a letter dated September 26, 1996, from Chancellor Rudolph F. Crew notifying her that probable cause had been found on the preferred charges, advising her that she would be suspended with pay as of September 27, 1996, pending a hearing and determination of the charges against her, and directing her to report to the Office of the Superintendent of Manhattan High Schools on September 30, 1996 for reassignment.

These appeals ensued. Petitioner's requests for interim relief pending a determination on the merits were denied on November 12, 1996 and January 25, 1997.

Petitioner contends that the Board, the Chancellor, and the Superintendent of Manhattan High Schools violated Education Law ' ' 2508(5), 2509(2), 3020(1) and 3020-a(2)(b). She claims that her tenure and due process rights were violated when, on January 27, 1995, she was removed from her teaching assignment without a hearing and that her reassignment should have been reported to the City Board. She also claims that all facts related to her February 1, 1995 suspension should have been submitted to the Board for its consideration and action at its next meeting on February 15, 1995. She contends that since January 27, 1995, she has been assigned to work in an inadequate space -- a corridor adjacent to the Superintendent's office -- as punishment. She argues that since the charges and specifications were not filed in a timely manner, her due process rights were violated. She asks that the charges and specifications be nullified and that she be restored to her active teaching status.

Respondents contend that the charges were timely because they were brought within three years of the misconduct, as required by Education Law ' 3020-a, and that ' 3020-a does not require the superintendent to bring charges to the board at its next meeting. Respondents argue that they did not violate petitioner's due process rights because Education Law ' 2566 permits reassignment. Respondents further argue that if, arguendo, petitioner's claims were meritorious, the appeals are premature and should not be brought until after a determination on the merits of the ' 3020-a proceeding.

Education Law ' 3020-a, "Disciplinary procedures and penalties," provides, in pertinent part:

All charges against a person enjoying the benefits of tenure . . . shall be in writing and filed with the clerk or secretary of the school district or employing board . . . . [N]o charges under this section shall be brought more than three years after the occurrence of the alleged incompetency or misconduct, except when the charge is of misconduct constituting a crime when committed.

Upon receipt of the charges, the clerk or secretary of the school district or employing board shall immediately notify said board thereof. Within five days after receipt of charges, the employing board, in executive session, shall determine . . . whether probable cause exists to bring a disciplinary proceeding . . . .

The employee may be suspended pending a hearing on the charges and the final determination thereof. The suspension shall be with pay . . . .

Petitioner's alleged misconduct began on October 24, 1994. The board of education met in executive session to discuss the charges on September 25, 1996. Thus, the charges were brought within three years of the alleged misconduct, as required by Education Law ' 3020-a. Similarly, petitioner's September 27, 1996 suspension is provided for by ' 3020-a, since it followed the perferral of charges and a finding of probable cause. Therefore, I find nothing improper in respondents' actions on and after September 25, 1996.

However, during the period from January 27, 1995 through September 24, 1996, petitioner was either reassigned or "suspended with pay" and assigned to duties in the Superintendent's office. Although respondents deny that petitioner was suspended with pay as of February 1, 1995, they argue that whether petitioner was reassigned or suspended "is a distinction without difference."

Education Law ' 2566, powers and duties of superintendents of schools in the city school districts of New York, Buffalo, Rochester, Syracuse, and Yonkers, provides that a superintendent has the power and duty:

[T]o transfer teachers from one school to another, or from one grade of the course of study to another grade in such course, and to report immediately such transfers to said board for its consideration and action; [and]

[T]o report to said board of education violations of regulations and cases of insubordination, and to suspend . . . [a] teacher . . . until the next regular meeting of the board, when all facts relating to the case shall be submitted to the board for its consideration and action.

Therefore, whether respondents reassigned or suspended petitioner, such action should have been reported to the board no later than the next regular board meeting for its consideration and action (See also, Appeal of McCall, 33 Ed Dept Rep 148; Appeal of Almeter, 30 id. 439). Rather, petitioner was in this reassigned/suspended status from January 27, 1995 through September 24, 1996 -- 20 months -- before she was suspended pursuant to ' 3020-a.

Because neither petitioner's January 27, 1995 reassignment nor her alleged February 1, 1995 suspension were acted upon in a timely manner, those actions must be deemed null and void.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that any and all references to the January 27, 1995 reassignment and February 1, 1995 suspension be stricken from petitioner's records and personnel files. However, nothing herein should be construed as nullifying respondents' actions pursuant to Education Law ' 3020-a.

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