Decision No. 13,005

(September 14, 1993)

Stephen W. Herrick, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner, a tenured teacher, challenges her suspension in the absence of charges pursuant to Education Law '3020-a. The appeal must be sustained in part.

Petitioner has been employed by respondent since 1980 and has been tenured as a health education teacher since 1985. On February 25, 1993, an assistant superintendent suspended petitioner with pay until further notice. The basis for this suspension was "a series of recent acts of alleged insubordination and unprofessional conduct." However, no charges were filed against petitioner pursuant to Education Law '3020-a.

More than one month later, on March 30, 1993, respondent directed petitioner to submit to a medical examination pursuant to Education Law '913. By letter dated April 6, 1993, petitioner was advised of an April 15, 1993 examination date. She was informed that failure to submit "may result in further appropriate action in accordance with the provisions of the Education Law". Petitioner did not appear for that examination nor for a subsequent examination that respondent scheduled. Respondent then directed petitioner to agree to submit to an examination by June 3, 1993 or face the withholding of her salary commencing on June 4, 1993. Petitioner did not agree to such examination and her salary was withheld. This appeal followed.

Petitioner asserts that her suspension was improper for failure to file charges pursuant to Education Law '3020-a. She seeks back pay of $1,973.52 for the period of June 4, 1993 through the end of the 1992-93 school year, together with reinstatement to her teaching position. Respondent counters that petitioner's suspension was not disciplinary action taken pursuant to Education Law '3020-a, but rather a result of her failure to submit to a medical examination pursuant to Education Law '913. Consequently, respondent asserts, the withholding of petitioner's salary is lawful.

The suspension of a tenured teacher requires the board of education to file written charges with the clerk or secretary of the board of education (Education Law '3020-a). Respondent's suspension of petitioner on February 25, 1993, without the filing of charges, was, therefore, ultra vires and in violation of petitioner's tenure rights.

Furthermore, only the superintendent may suspend an employee consistent with Education Law '3020-a and only until the next regular meeting of the board of education (Education Law '1711(5)(e)). Since the assistant superintendent and not the superintendent suspended petitioner, and because the suspension was not acted upon at a subsequent board meeting, the February 25, 1993 suspension of petitioner is null and void.

A board of education does, however, have a statutory right to order an employee to submit to a medical examination pursuant to Education Law '913, and to suspend the teacher's pay for failure to comply with such a directive (Appeal of El-Araby, 28 Ed Dept Rep 524; Kurzius v. Board of Education, 81 AD2d 827). Petitioner was given three opportunities to agree to submit to a medical examination pursuant to Education Law '913. It was not until June 4, 1993 that her final refusal resulted in the suspension of her pay. Therefore, I find that the suspension of her pay for refusal to submit to an examination is proper.

Since failure to submit to a medical examination may prevent the board of education from carrying out its duty under Education Law '913, a teacher's refusal to submit to such an examination is legitimate grounds for disciplinary action (Appeal of Grossberg, 32 Ed Dept Rep ___, Decision #12956, dated July 9, 1993; Matter of the Board of Education of the Valhalla UFSD, 19 Ed Dept Rep 259; aff'd sub nom). Thus, when an employee refuses to submit to an examination pursuant to Education Law '913, charges of insubordination may be preferred against the teacher pursuant to Education Law '3020-a (Appeal of Almeter, 30 Ed Dept Rep 439; McNamara v. Commissioner of Education, 80 AD2d 669). However, respondent failed to file charges of insubordination against petitioner for refusal to submit to an examination. Accordingly, petitioner cannot be deemed suspended from her position as a tenured employee with the school district. Petitioner must instead be considered an employee on involuntary sick leave pursuant to Education Law '913 (see Appeal of El-Araby, supra).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that any and all references to the February 25, 1993 suspension be stricken from petitioner's records and personnel files.

IT IS FURTHER ORDERED that petitioner be deemed to be on involuntary sick leave pursuant to '913. However, should petitioner acquiesce to an examination in accordance with '913, respondent must commence her pay from the date she agrees to such examination. Nothing, however, in this decision precludes respondent from filing charges against petitioner in accordance with Education Law '3020-a subsequent to such an examination.

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