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Decision No. 16,861

Appeal of LING LING CHOU from the determination of Carmen Fariña, Chancellor of the New York City Department of Education, to implement an arbitrator’s decision in a disciplinary proceeding brought pursuant to Education Law §3020.

Decision No. 16,861

(January 6, 2016)

Beldock Levine & Hoffman, LLP, attorneys for petitioner, Myron Beldock, Esq., of counsel

Zachary A. Carter, Esq., Corporation Counsel, attorney for respondent, Joseph D. Lockinger, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from the determination of Carmen Fariña, Chancellor of the New York City Department of Education, to implement an arbitrator’s decision to suspend her as principal of P.S. 184M without pay.  The appeal must be dismissed.

In January 2000, the New York State Legislature amended Education Law §3020 by adding a new subdivision three, which authorizes the City School District of the City of New York (“District”) and any employee organization representing employees or titles that are or were covered by any memorandum of agreement executed by the District and the Council of Supervisors and Administrators of the City of New York (the “Council”), on or after December 1, 1999, to negotiate agreements that modify or replace the procedures set forth in Education Law §§3020-a and 2590-j(7).  It further provides that the Commissioner shall review any appeals brought in accordance with such agreements.

Pursuant to Education Law §3020(3), the Council and the District entered into an agreement providing for modified disciplinary procedures (the “Agreement”).  For allegations of misconduct with respect to principals tenured as of July 1, 2000, the parties, in Article VII(J)(4)(a) of the Agreement, established modified disciplinary procedures.[1]  Specifically, the Agreement provides that, at the principal’s option, allegations of misconduct may be presented to an impartial arbitrator who will decide whether just cause exists for the proposed action.  Thereafter, at the request of the principal, the Chancellor may review the arbitrator’s decision, which review must be complete within 15 days of such decision.  The Agreement provides that “[t]he employee shall be provided with written notice of the outcome of the Chancellor’s review.”  If the Chancellor implements the arbitrator’s decision against the principal, the principal may then apply to the Commissioner for review of the arbitrator’s decision.

Pursuant to the Agreement, a written notice of charges and specifications of misconduct and proposed adverse action was prepared and served on petitioner, alleging that petitioner engaged in fraud, criminal conduct, misconduct, neglect of duty, and conduct unbecoming her profession, from the 2000-2001 school year through the 2011-2012 school year, including the respective summer terms.  Petitioner was charged with 21 specifications of misconduct including, but not limited to, allegations of financial wrongdoing, conflicts of interest, failure to supervise and properly train staff, and fraudulently submitting inaccurate student attendance data.  She was suspended without pay, effective July 19, 2011. 

A hearing officer (arbitrator) was appointed and a hearing was conducted on several dates in November and December 2012; January, March, April, June, September, and November 2013; and September 2014.  According to the record, on or about September 10, 2013, the original specifications were amended.  On November 14, 2013, petitioner stipulated to 13 of the 21 specifications, as amended, which relate to student attendance records and improper fundraising activities.[2]  On September 11, 2014, the District agreed to withdraw all charges relating to any criminal acts, fraud, and misrepresentation; four specifications alleging conflict of interest, improper receipt of compensation, and fraud as it relates to a Foreign Language Assistance Program (“FLAP”) grant; and one charge relating to the Department of Youth and Community Development (“DYCD”).  The District did not present evidence with respect to specifications 1, 2, 3, 4, 6, 7, and 15, and the hearing officer dismissed specification 5, which related to alleged improper student enrollment practices. 

On September 22, 2014, the hearing officer issued an interim award, based on the withdrawal of and stipulation to certain charges, reinstating petitioner with full pay and benefits, effective October 1, 2014.  The hearing officer rendered a final decision on June 20, 2015, finding petitioner guilty of the charges alleged and stipulated to in specifications 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, and 21.  The hearing officer determined not to terminate petitioner’s employment, but imposed a penalty of suspension for the period described in the interim award, except that the effective date of reinstatement was modified from October 1, 2014, to July 1, 2014.  The hearing officer declined to award petitioner attorneys’ fees.

By letter dated July 6, 2015, petitioner sought review by the Chancellor of the hearing officer’s June 20, 2015 decision.  Pursuant to Article VII(J)(4)(a)(6) of the Agreement, the Chancellor was required to review the arbitrator’s decision within 15 days and provide written notice of the outcome of her review.  The record indicates that petitioner did not receive any response to the July 6 letter.  Thereafter, on August 19, 2015, petitioner commenced an appeal to the Commissioner from the hearing officer’s determination pursuant to Education Law §3020(3).  I take administrative notice of the decision issued on November 10, 2015 in that appeal and the record contained therein (see Appeal of Chou, 55 Ed Dept Rep, Decision No. 16,848 (“Appeal I”).  I dismissed Appeal I for lack of jurisdiction, declined to award attorneys’ fees for lack of authority, and ordered the Chancellor to review the hearing officer’s decision and provide petitioner with written notice of the outcome of such review within 15 days.

By decision dated November 24, 2015, the Chancellor upheld the arbitrator’s determination and implemented it.[3]  Thereafter, on December 9, 2015, petitioner commenced the instant appeal pursuant to Education Law §3020(3).  On December 16, 2015, a joint response was served on behalf of Chancellor Fariña and the Community School District Superintendent who initiated the arbitration proceeding (“respondents”), in accordance with 8 NYCRR §281.7.  Although petitioner complains that, given the history of this matter, I should reject the joint response, such response was timely submitted in this appeal and is, therefore, accepted for consideration.  The joint response, which was received by my Office of Counsel on December 22, 2015, incorporates by reference the record of prior proceedings which was previously filed in Appeal I on October 19, 2015.[4]    

Petitioner requests that I reverse the Chancellor’s decision upholding the arbitrator’s determination to suspend her without pay.  Petitioner asserts that the charges alleging fraud, theft, conflict of interest and other intentional misconduct were frivolously brought and then withdrawn and that the sustained charges were for practices that “frequently occur and are tolerated” by DOE and, in any event, were remedied prior to the charges being filed.  Petitioner seeks an award of full back pay during her period of suspension and attorneys’ fees.  Petitioner also asserts that, with regard to the conduct of the hearing, the arbitrator erroneously closed the hearing to the public “despite statutory directives to the contrary” and refused to hear “pertinent witness testimony Ms. Chou offered in her defense....” 

Initially, I note that the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).  Therefore, I lack jurisdiction to entertain petitioner’s claim for attorneys’ fees.

With regard to the conduct of the hearing, petitioner claims that the hearing officer erred in closing the hearing after petitioner had elected to have a public hearing, pursuant to Education Law §3020-a(3)(c)(i)(C).  In his decision, the hearing officer explained that the hearing was subsequently closed to the public, in part, due to “potential and actual” violations of the federal Family Educational Rights and Privacy Act.  Even if I were to determine that closure of the hearing to the public was not proper, under these circumstances, petitioner has alleged no harm or prejudice resulting therefrom and, in any case, such error would not be a basis for overturning the suspension imposed upon petitioner.  

Petitioner also claims that the arbitrator refused to hear “pertinent witness testimony Ms. Chou offered in her defense....”  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 asserts her claim in a conclusory fashion and does not set forth what, if any, “pertinent witness testimony” was precluded nor does she establish how such testimony would have impacted her case.  Other than her conclusory assertion, petitioner has failed to set forth facts or citations to the record on which to establish her claim.  Consequently, petitioner has failed to meet her burden of proof in this regard.

Petitioner also states that respondents “inexcusably did not follow the process defined in §3020-a(4)(D)(i-a)(A) for bringing charges of incompetence based solely on a pattern of ineffectiveness.  Instead, a full disciplinary hearing was implemented by respondents without giving petitioner an opportunity to develop a correction plan for alleged inefficiencies, as statutorily required.”  In this regard, I note that Education Law §3020-a(3)(D)(i-a)(A) was the statutory provision relating to expedited hearings on charges of incompetence based solely on a pattern of ineffectiveness that existed prior to July 1, 2015, not Education Law §3020-a(4)(D)(i-a)(A) as erroneously cited by petitioner.  That former provision was deleted by section three of Subpart G of Part EE of Chapter 56 of the Laws of 2015, though it was in effect at the time of petitioner’s hearing.  In any case, although petitioner’s argument is not entirely clear, to the extent petitioner argues that she was entitled to an expedited hearing because she was charged with incompetence based solely on a pattern of ineffectiveness, the record does not support any such claim.  Education Law §3012-c(6), which was referenced in former Education Law §3020-a(3)(D)(i-a)(A), states specifically that, for purposes of disciplinary proceedings pursuant to §§3020 and 3020-a, “a pattern of ineffective teaching or performance shall be defined to mean two consecutive annual ineffective ratings received by a classroom teacher or building principal pursuant to annual professional performance reviews [APPR] conducted in accordance with” Education Law §3012-c.  The disciplinary proceeding at issue in this case did not involve petitioner’s receipt of two consecutive ineffective APPR ratings; rather, the proceeding involved charges and specifications of misconduct against petitioner.  Moreover, to the extent petitioner argues that the opportunity to develop a “correction plan” is “statutorily required,” the requirement of the development and implementation of a principal improvement plan was in former Education Law §3020-a(3)(i-a)(B), which also applied only to expedited hearings on charges of incompetence based solely on a pattern of ineffectiveness.

The record indicates that on November 14, 2013, petitioner stipulated to 13 of the 21 specifications, as amended, which relate to student attendance records and improper fundraising activities.  The arbitrator’s finding of guilt as to the 13 stipulated charges which relate to student attendance records and improper fundraising activities is, therefore, supported by the record.  Accordingly, the primary issue before me is whether a penalty of suspension without pay from July 19, 2011, through July 1, 2014 is appropriate. 

In determining whether to substitute my judgment for that of hearing officer, the standard is whether the discipline imposed is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD2d 745, lv to appeal denied 53 NY2d 603; Appeal of Blake, 48 Ed Dept Rep 270, Decision No. 15,856; Appeal of the Bd. of Educ. of Wellsville Cent. School Dist., 35 id. 523, Decision No. 13,620; Appeal of the Bd. of Ed., City School District of the City of New York, 35 id. 35, Decision No. 13,455).  An appropriate penalty should underscore the inappropriateness of the conduct and serve as a warning against future improper conduct (Appeal of Blake, 48 Ed Dept Rep 270, Decision No. 15,856; Appeal of the Bd. of Educ., Greenburgh CSD No. 7, 34 id. 506, Decision No. 13,397, aff’d 237 AD2d 721).  In this case, the hearing officer noted as follows:

The issue of penalty in Chou raises demanding problems as the Specifications are all encompassing and include those of a varying level of misconduct, neglect of duty, and conduct unbecoming her profession, they may not individually be worthy of anything but minor discipline.  However, collectively they are systematic and reflect an overall pattern and lack of professional judgement [sic]. 

* * *

The charges themselves that Chou admitted to go to the very heart of the administrative process.  She, as a school principal, was charged with ensuring that record keeping, attendance, and fundraising activities, were all properly adhered to.  In each of these instances she completely failed. 

* * *

Although there are no prior disciplinary charges in her record the severity of the misconduct committed mandates a serious penalty.  Her years of service cannot overcome or mitigate the instant charges.  The record supports the contention that the Specifications stipulated to are deserving of an appreciable penalty.  Respondents’ professional judgement [sic] has been seriously challenged and accordingly the charges and stipulations per se render Chou, as of the time of service, unfit to continue as the principal [of] PS 184.  Chou’s actions rise to the level of conduct unbecoming, neglect of duty, and misconduct.  In the instant case, the judgement [sic] of the DOE was correct in terms of the imposition of discipline.

Under these circumstances, I find that suspension without pay from July 19, 2011 through July 1, 2014 is warranted and appropriate to impress upon petitioner the seriousness of the conduct and to discourage her from such conduct in the future.  I agree that the conduct for which petitioner was found guilty goes to the heart of the administrative process and functions.  Consequently, I do not find such penalty to be disproportionate to petitioner’s conduct and, accordingly, I will not substitute my judgment for the penalty imposed by the arbitrator and Chancellor (see Matter of Pell v. Bd. of Educ., 34 NY2d 222, 233; Appeal of Bd. of Educ. of Pine Bush Cent. School Dist., 33 Ed Dept Rep 412, Decision No. 13,097). 

Finally, petitioner complains that respondents’ “behavior ... is the very definition of frivolous conduct” and cites to 22 NYCRR §130-1.1(c) (Rules of the Chief Administrator of the Courts) governing costs and sanctions in judicial actions and proceedings.  She also claims that the charges alleging fraud, theft, conflict of interest and other intentional misconduct were “frivolously brought” and then withdrawn after numerous delays.  Education Law §3020-a(4)(c) provides for an award of costs, including attorneys’ fees, where any of the charges brought are found by the hearing officer to be frivolous.  I note that the hearing officer specifically found that the specifications underlying the charges were not frivolous, noting that the fact that a specification was withdrawn or dismissed does not “equate with a finding that the specification was frivolous.”  Petitioner has not demonstrated that the hearing officer erred in finding that the charges were not frivolous or that the hearing officer abused his discretion in declining to award reasonable costs and reasonable attorneys’ fees.[5]  In any event, to the extent petitioner seeks costs, sanctions, or attorneys’ fees based on her allegations of frivolous conduct and/or charges by respondents, I have noted above that such relief is not available an appeal pursuant to Education Law §310 (see Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).

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

THE APPEAL IS DISMISSED.

END OF FILE


 

[1] The parties do not dispute that the modified procedures are applicable in this instance.

 

[2] Specifications 8(a) and (c), 9, 10(a) and (c), 11, 12(a), (b), and (c), 13(a) and (c), 14, 16(a), (b), and (c), 17(a) and (c), 18, 19(g), 20, and 21(a), (b), and (c).

 

[3] I note that the Chancellor’s decision erroneously states that the arbitrator’s June 20, 2015 final award modified the end date of the suspension period from October 1, 2014 to “July 1, 2012.”  However, as noted above, the arbitrator modified the length of petitioner’s suspension without pay to end on July 1, 2014; thus, the period of petitioner’s suspension without pay ran from July 19, 2011, through July 1, 2014.

 

[4] Section 281.7(a)(2) of the Commissioner’s regulations requires the joint response to be served upon petitioner’s counsel, and that the joint response and record of prior proceedings be transmitted to the State Education Department.  While respondents have submitted the record of prior proceedings as part of Appeal I, respondents note that the following exhibits from the hearing were not found in the Department of Education’s (“DOE”) records: DOE exhibits 24, 51, 53, 54, 56, and 121; and petitioner’s exhibits R2, R3, R4, R5, R7, and R8.  In any event, these exhibits are not necessary to the disposition of the issues raised herein. 

 

[5] I note that the hearing officer also concluded that petitioner’s decision to retain private counsel rather than union counsel was prejudicial to respondent.  I need not consider that conclusion, since the hearing officer determined that the charges were not frivolous.  Therefore, there was no basis for an award of costs and attorneys’ fees under Education Law §3020-a(4)(c).