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Decision No. 16,427

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Application of MICHAEL P. THOMAS for the removal of Geraldine Taylor-Brown as High School Superintendent and Cathleen Black as Chancellor of the New York City Department of Education.

Decision No. 16,427

(October 11, 2012)

Michael A. Cardozo, Corporation Counsel, attorney for respondents, Celine Chan, Esq., of counsel

KING, JR., Commissioner.--Petitioner seeks the removal of Geraldine Taylor-Brown (“Taylor-Brown”) from her position as high school superintendent and Cathleen Black from her position as Chancellor[1]  (“Chancellor Black,” collectively “respondents”) of the New York City Department of Education (“DOE”).  The application must be denied.

Petitioner is a certified, tenured mathematics teacher at DOE’s Manhattan Center for Science and Math (the “school”).  In his petition, he describes a number of events that occurred at the school beginning with the 2007-2008 school year.[2]   He asserts that during that school year, he reported David Jimenez (“Jimenez”), the school’s principal, for alleged violations including failure to identify at-risk students as required by Title I of the federal Elementary and Secondary Education Act (20 USC §6301, etseq.) and scoring irregularities on New York State Regents mathematics examinations.

Petitioner claims that, as a result of reporting the alleged violations, Jimenez retaliated against him resulting in several disciplinary letters being placed in his personnel file, a DOE-ordered medical examination and, in April 2008, removal from the school to a “temporary assignment center.”  Petitioner was restored to service at the school on September 8, 2009.

By letter to Taylor-Brown dated February 7, 2011, petitioner stated that he believed Jimenez engaged in conduct unbecoming his position and requested that Taylor-Brown initiate charges against Jimenez pursuant to Education Law §3020-a.  Petitioner’s letter states that he would appeal to the Commissioner of Education within 30 days of the date of the letter if charges were not brought against Jimenez in a timely manner.  Also on that date, petitioner wrote to Chancellor Black and stated that she “has the ultimate responsibility for ensuring integrity of the school system.”  Petitioner requested that Chancellor Black direct Taylor-Brown to examine his documentation and “if warranted, approve the timely initiation of Education Law §3020-a charges against Principal Jimenez.”

Petitioner did not receive a response from Taylor-Brown or Chancellor Black, and by letter dated February 28, 2011 to Taylor-Brown, stated that he believed she had neglected her duties as a superintendent and that he would petition the Commissioner for her removal in accordance with Education Law §306.  By separate letter of the same date, petitioner informed Chancellor Black that he believed she had neglected her duty to ensure the integrity of the school system and that he would therefore petition the Commissioner for her removal.  This application for removal ensued.

Petitioner alleges that respondents neglected their duty to ensure the integrity of the school system when, after receiving petitioner’s February 7, 2011 letters, they failed to initiate disciplinary charges against Jimenez.

Respondents allege that the application fails to state a cause of action, and that the application is untimely and moot.  Respondents also allege that petitioner failed to join necessary parties and that the application is barred by the doctrines of collateral estoppel and resjudicata.

The application for the removal of Chancellor Black must be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Chancellor Black resigned from her position effective April 7, 2011, thereby making petitioner’s application for her removal moot (see Appeal of DeMarco, 50 Ed Dept Rep, Decision No. 16,199).

Taylor-Brown asserts that the application is untimely because the most recent challenged decision or act about which petitioner complains occurred in October 2009, when he inspected his personnel folder and sought to have various documents removed from it.[3] 

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id. 383, Decision No. 15,892).  In addition, a removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810).  Petitioner alleges that Taylor-Brown’s wrongdoing is her failure to act in response to his February 7, 2011 letter.  Respondent generally denies petitioner’s claim and asserts that all four of petitioner’s February 2011 letters “were properly forwarded to the [Special Commissioner of Investigation].”  However, the record contains no evidence indicating that petitioner was made aware of such action in response to his letters.  The affidavit of service filed with the petition reflects that the application was personally served on March 10, 2011.  Accordingly, under these circumstances, I decline to dismiss the appeal as untimely.

Taylor-Brown also asserts that the application must be dismissed because it failed to name and serve Jimenez and Assistant Principal Charles Kwan (“Kwan”).  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Taylor-Brown contends that Jimenez and Kwan are necessary parties because petitioner is seeking to have her initiate disciplinary charges against them and petitioner’s failure to join them requires dismissal of the application.  I disagree.  The relief sought in the instant matter is the removal of Taylor-Brown for her alleged failure to take action in response to petitioner’s February 7, 2011 letter.  Neither Jimenez’s nor Kwan’s rights would be adversely affected by a determination in favor of petitioner in this matter.  The relief sought by petitioner only affects Taylor-Brown.  Additionally, petitioner’s February 7, 2011 letter only sought to have Jimenez charged with disciplinary violations, he did not ask either respondent to initiate charges against Kwan.  Therefore, under the circumstances of this case, neither Jimenez nor Kwan are necessary parties.

Taylor-Brown also argues that petitioner’s claims are barred under the doctrines of collateral estoppel and resjudicata.  Pursuant to the doctrines of collateral estoppel or resjudicata, claims or issues raised in an appeal pursuant to Education Law §310 which are identical to claims or issues that have been adjudicated and dismissed by a court of competent jurisdiction or in a previous appeal brought pursuant to Education Law §310 will not lie (seee.g.Appeal of Anderson, 51 Ed Dept Rep, Decision No. 16,259; Appeal of Reese, et al., 49 id. 328, Decision No. 16,044; Appeal of Morris, et al., 36 id. 405, Decision No. 13,761).  Petitioner’s two previous appeals raised different issues arising from the same initial set of facts: alleged retaliation after petitioner reported the alleged misuse of Title I funds by Jimenez and scoring irregularities on the New York State Regents mathematics examination by Jimenez and Kwan (Appeal of Thomas, 50 Ed Dept Rep, Decision No 16,193; Appeal of Thomas, 50 id., Decision No. 16,090).  While this application also stems from the same underlying set of facts and circumstances as petitioner’s other appeals, the ultimate issue of whether or not Taylor-Brown wrongfully failed to act in response to his February 7, 2011 letter, thus warranting her removal, is not the same issue raised in petitioner’s previous appeals and I therefore decline to dismiss the application under the doctrines of collateral estoppel or resjudicata.

Nonetheless, the application must be dismissed on the merits.  A member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Application of Schenk, 47 id. 375, Decision No. 15,729).  To be considered willful, respondent’s actions must have been intentional and with a wrongful purpose (Appeal of Christiano, 50 Ed Dept Rep, Decision No. 16,217; Appeal of Giardina, 46 id. 524, Decision No. 15,583; Appeal of Johnson, 46 id. 67, Decision No. 15,443).  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioner alleges that Taylor-Brown neglected her duty to ensure the integrity of the school system by failing to initiate disciplinary charges against Jimenez.  As noted above, the parties disagree over whether petitioner’s February 2011 letters were forwarded to the Special Commissioner of Investigation for the New York City School District (“SCI”) for further action. 

Nevertheless, petitioner has failed to meet his burden of proof.  Petitioner does not establish how Taylor-Brown’s failure to file an Education Law §3020-a charge against Jimenez, at the request of petitioner who claims retaliation, constituted a willful violation or neglect of duty under the Education Law, requiring her removal under Education Law §306.  Also, as petitioner admits in his reply, the same allegations were forwarded to SCI in September 2008 and that referral did not result in disciplinary charges against Jimenez.  On these facts, petitioner has not established that Taylor-Brown was under a legal obligation to initiate Education Law §3020-a charges against Jimenez.  Indeed, I note that petitioner’s February 7, 2011 letter to Chancellor Black acknowledged this when he requested that she, “if warranted, approve the timely initiation of Education Law §3020-a charges against Principal Jimenez.” 

On the record before me, I find that petitioner has failed to demonstrate that Taylor-Brown has willfully neglected her duties.  Petitioner has therefore failed to establish any basis for Taylor-Brown’s removal and the application must be denied.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPLICATION FOR REMOVAL IS DENIED.

END OF FILE.

[1] Dennis M. Walcott is currently the Chancellor of the New York City Department of Education.

[2] These events were, in part, the subject of two previous appeals brought by petitioner: Appeal of Thomas, 50 Ed Dept Rep, Decision No. 16,193 and Appeal of Thomas, 50 id., Decision No. 16,090.

[3] These events were addressed in Appeal of Thomas, 50 Ed Dept Rep, Decision No. 16,193.