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Decision No. 17,507

Appeal of JANE DOE,[1] from action of the Board of Education of the Elmont Union Free School District, regarding a personnel action.

Decision No. 17,507

(September 24, 2018)

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wold & Carone, LLP, attorneys for petitioner, Eric Broutman, Esq., of counsel

Colum P. Nugent, Esq., attorney for respondent

Elia, Commissioner.--Petitioner appeals from actions taken by the Board of Education of the Elmont Union Free School District (“respondent”) regarding her placement on administrative leave.  The appeal must be dismissed.

Petitioner is a tenured teacher employed by respondent.  On February 1, 2018, respondent’s superintendent suspended petitioner pending charges pursuant to Education Law §3020-a (“§3020-a”).  This appeal ensued.  Petitioner’s request for interim relief in the form of “an immediate stay of [her] suspension” and an order directing respondent to “allow [her] to return to teaching” was denied on May 29, 2018.

Petitioner argues that, after suspending her, respondent failed to initiate charges at the next regular board meeting.  Therefore, petitioner argues that her continued suspension violates her tenure rights.  Petitioner further argues that she did not engage in improper conduct and that any potential §3020-a charges would be without merit.  Petitioner seeks expungement of any mention of her suspension from her personnel file.

Respondent asserts that, on May 15, 2018, it voted to initiate charges against petitioner pursuant to Education Law §3020-a.  Respondent’s attorney asserts in an affirmation that petitioner will be reassigned to duties within the district during the pendency of the §3020-a proceeding.  Respondent argues that the petition must be dismissed because petitioner’s record contains no reference to her suspension that could be expunged.  Finally, respondent asserts that its suspension of petitioner was appropriate because it is “allowed a reasonable time” between suspension and the filing of §3020-a charges.

First, to the extent petitioner seeks expungement of the superintendent’s suspension from her record, the appeal 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).

In addition to interim relief seeking an immediate stay of her suspension by the superintendent, which was denied on May 29, 2018, petitioner seeks “expungement of any mention” of the suspension beginning February 1, 2018 “until the present.”  Respondent indicates in its answer that no letter, memorandum or other written document referencing petitioner’s suspension was prepared and placed in petitioner’s personnel file.  In a reply, petitioner states that she is “encouraged ... [t]o the extent that it is true that there is no record of her suspension [or] reassignment ....”  Nevertheless, petitioner seeks an order “expunging any such reference if they [sic] exist.”  However, I accept respondent’s assertions in its verified answer and its attorney’s affirmation that there is no record of the suspension in petitioner’s personnel file and I decline to issue an order based on speculation that such a record might exist.  Therefore, to the extent petitioner seeks expungement of any record of the suspension from her personnel file, the appeal has been rendered moot.       In a reply affirmation, petitioner’s attorney acknowledges that respondent has the authority to suspend a tenured teacher such as petitioner once it has filed §3020-a charges, but argues that when it filed such charges on May 15, 2018 respondent took no action to suspend petitioner and that her continued suspension remains illegal.[2]  I note that Education Law §1711(2)(e), which outlines the powers of a superintendent in a union free school district such as respondent’s, gives the superintendent the power “to suspend ... [a] teacher or other employee until the next regular meeting of such board, when all facts relating to the case shall be submitted to such board for its consideration and action” (emphasis added).  A suspension by a superintendent that extends beyond the next regular meeting of the board of education would be ultra vires (see Appeal of Kavanaugh, 55 Ed Dept Rep, Decision No. 16,897; Appeals of Williams, 37 id. 643, Decision No. 13,947).

However, while petitioner’s attorney’s reply affirmation alleges that respondent board did not take action to suspend petitioner on May 15, 2018, petitioner has not provided any evidence, such as board minutes, to corroborate that allegation.  Moreover, on this record, I cannot determine whether respondent has taken any action on another date to suspend petitioner with pay until a final resolution of the §3020-a proceeding.  Under these circumstances, I decline to order petitioner’s reinstatement.  If petitioner believes she continues to be illegally suspended, her recourse is to bring another appeal in an appropriate forum in which both parties will have a full and fair opportunity to address the legality of respondent’s action in suspending petitioner after §3020-a charges were filed.

To the extent petitioner seeks to challenge the merits of her suspension, which are now the subject of a pending §3020-a proceeding, petitioner’s claims must be dismissed for lack of subject matter jurisdiction.  I lack jurisdiction to review determinations made by hearing officers in §3020-a proceedings.  Education Law §3020-a was amended by Chapter 691 of the Laws of 1994 to divest the Commissioner of jurisdiction to review determinations of hearing officers, both final and non-final (Appeal of DeMarco, 48 Ed Dept Rep 252, Decision No. 15,850; Appeal of T.W., 47 id. 400, Decision No. 15,735; Appeal of Fauvell, 47 id. 350, Decision No. 15,720).  Therefore, I lack jurisdiction over both the merits of §3020-a charges and procedural objections related thereto (see Appeal of Lovinsky and Simpson, 57 Ed Dept Rep, Decision No. 17,422).

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

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] Given the pendency of charges pursuant to Education Law §3020-a and the fact that it is unknown whether any eventual hearing will be public or private, petitioner is referred to herein as “Jane Doe” to preserve confidentiality (see Education Law §3020-a[3][c][i][C]; Hoffmann v. Dep’t of Educ. of City of New York, 22 Misc.3d 1105(A); aff’d on other grounds, Hoffmann v. Dep’t of Educ. of City of New York, 21 AD3d 493; lv to appeal den, Hoffmann v. Dep’t of Educ. of City of New York, 5 NY3d 716).

 

[2] While the Commissioner’s regulations do not contemplate submission of a reply affidavit or affirmation in lieu a reply, as petitioner has done, I have nevertheless accepted it for consideration in this appeal (see Appeal of Patel, 57 Ed Dept Rep, Decision No. 17,259).  The reply affidavit is in the nature of a reply, as it responds to respondent’s affirmative defenses.