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Decision No. 14,325

Appeal of THE BOARD OF EDUCATION OF THE GREENBURGH ELEVEN UNION FREE SCHOOL DISTRICT from the determination of a hearing panel convened pursuant to Education Law "3020-a concerning charges against Stephen Boyer, a tenured physical education teacher.

Decision No. 14,325

(March 16, 2000)

Ehrlich, Frazer & Feldman, Esqs., attorneys for petitioner, Jacob S. Feldman, Esq., of counsel

Sussman, Bergstein, Wotorson & Whateley, Esqs., attorneys for respondent, Michael H. Sussman and Stephen Bergstein, Esqs., of counsel

MILLS, Commissioner.--The Board of Education of the Greenburgh Eleven Union Free School District ("petitioner") appeals the determination of a hearing panel convened pursuant to Education Law "3020-a, which found Stephen Boyer ("respondent") guilty of certain misconduct and imposed a fine in the amount of $10,000. This appeal must be dismissed.

On January 13, 1994, respondent was employed as a tenured physical education teacher in petitioner’s district. During a swimming class at the school, two students became embroiled in a dispute. After the students were separated by another employee, respondent allegedly acted in an unprofessional manner in attempting to control one of the students. On February 24, 1994, petitioner found probable cause to bring disciplinary charges against respondent pursuant to Education Law "3020-a, alleging incompetence, neglect of duty, and conduct unbecoming a teacher.

A hearing panel conducted six hearing sessions between October 7, 1994, and June 14, 1995. On August 28, 1995, the panel unanimously found respondent not guilty of incompetence and conduct unbecoming a teacher. By a vote of 2 to 1, it found that respondent had been guilty of neglect of duty. Finally, the panel unanimously imposed a fine in the amount of $10,000.

On September 12, 1995, petitioner voted to appeal the panel decision to the Commissioner of Education. This appeal was purportedly commenced October 3, 1995.

Petitioner requests that I find respondent guilty of all three charges, and allow it to terminate him. Respondent seeks no affirmative relief, and requests that I simply dismiss the appeal.

In early 1995, the Greenburgh Eleven Federation of Teachers and several individual members of that organization commenced an Article 78 proceeding in Supreme Court, Westchester County, to challenge alleged violations by petitioner of the Open Meetings Law (Public Officers Law ""100 et seq.). By an amended petition dated November 29, 1995, that proceeding was extended to challenge petitioner's September 12, 1995 decision to appeal the hearing panel’s above described decision to impose a $10,000 fine upon respondent. On July 31, 1996, the Supreme Court rendered a determination which stated, in pertinent part:

Accordingly, and in light of respondents' pattern of numerous violations of the Open Meetings Law and the irrefutably willful and flagrant manner in which they continue to do so, the remedy must be the most severe allowed to this Court and the Court hereby declares any and all actions taken by the respondent board at the meetings held on November 11, 1994 and September 12, 1995 to be null and void.

 

Matter of John Goetschius, et al., v. Board of Education of the Greenburgh Eleven UFSD, Supreme Court, Westchester County, Nastasi, J., Index No. 2861/95, July 31, 1996. This determination was brought to the attention of my Office of Counsel by respondent's attorneys on August 15, 1996. On or about August 23, 1996, petitioner served and filed a notice of appeal to the Appellate Division, Second Department. My Office of Counsel learned of that action on September 3, 1996. It appears that on December 6, 1996, petitioner sought to ratify its September 12, 1995, vote purportedly authorizing this appeal (an action which has provoked another Article 78 proceeding and another determination annulling that board action, also).

The Supreme Court's July 31, 1996, determination nullifying petitioner's actions of September 12, 1995, was subsequently affirmed by the Appellate Division, Second Department (Matter of Goetschius, et al., v. Board of Education of the Greenburgh Eleven UFSD, 244 AD2d 552). Although the Appellate Division’s decision apparently resolving this matter was rendered in November 1997, my

 

Office of Counsel only became aware of this resolution in February 2000 as a result of its further inquiry to the parties pursuant to 8 NYCRR "276.5.

The instant appeal must be dismissed in view of petitioner’s failure to properly authorize this action. Petitioner’s purported authorization of September 12, 1995, has been judicially annulled and that annulment has been affirmed on appeal. Petitioner's attempt to reauthorize the appeal on December 6, 1996, which has also been judicially annulled, occurred more than 30 days after the hearing panel's determination of August 28, 1995. As a result, no properly commenced, timely appeal has been initiated within the time limitation set forth in 8 NYCRR "275.16.

I am deeply distressed that the parties and their counsel failed to keep my Office of Counsel apprised of the procedural progress of the appeal which followed Justice Nastasi's July 31, 1996, determination. Had they done so, this appeal could have been disposed of quite some time ago. I, therefore, admonish the parties to be more scrupulous in meeting their responsibility to forward relevant information in a timely fashion in future matters before the Commissioner of Education.

 

THE APPEAL IS DISMISSED.

END OF FILE