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Decision No. 13,041

Appeal of ROBERT L. BLUMENBLATT from action of the Chancellor of the City School District of the City of New York, Dr. Fred Goldberg, as community superintendent, and Sandra Lerner, as deputy community superintendent, regarding termination of services.

Decision No. 13,041

(November 9, 1993)

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondents, Sergio J. Tuero,

Assistant Corporation Counsel, of counsel

SOBOL, Commissioner.--Petitioner appeals respondents' determination to terminate his services as a substitute teacher and to rescind his substitute teacher license. The appeal must be dismissed.

On May 17, 1985, petitioner, a nontenured substitute teacher, was assigned to P.S. 26 in Community School District 10 in the Bronx. On June 11, 1985, he allegedly used corporal punishment against his students in violation of both the rules of the district and the Regulations of the Commissioner of Education. The school principal investigated the complaints he received regarding the incident, spoke with petitioner regarding the complaints and, consequently, terminated his employment. The principal also forwarded statements he had obtained as part of his investigation to the community superintendent and to the Chancellor's office.

On or about June 30, 1985, the school principal executed a Form OP 152 which listed all the instructional personnel for the school, and assigned a rating of "satisfactory" next to petitioner's name. (Respondent later maintained that this form was prepared incorrectly by the principal's secretary, and that petitioner's rating should have been "unsatisfactory".) Believing that he was entitled to an individually executed document showing a rating of "satisfactory", petitioner filed a grievance pursuant to the district's collective bargaining agreement. Petitioner filed several other grievances as well, seeking removal of a letter from his personnel file; alleging that the principal failed to give him 10 days' notice prior to termination of his services in violation of his collective bargaining agreement; and demanding reinstatement to his teaching position.

Petitioner's grievances were resolved throughout 1986 and 1987. The challenged letter was removed from his file. His grievance regarding the 10 day notice was dismissed and his claim for an individual rating was sustained. In January 1987, the deputy superintendent directed the principal to execute an individual rating for petitioner for the school year ending June 1985. On June 10, 1987, the principal rated petitioner's performance, as of June 1985, "unsatisfactory". Petitioner challenged the rating and filed another grievance. On October 23, 1989, respondent sustained petitioner's appeal on the ground that he had not been given a timely rating. Without reviewing the merits of petitioner's rating, the Chancellor ordered that it be changed to "satisfactory."

Previously, in October 1985, a technical assistance conference (TAC) was held pursuant to local procedure, to determine whether to bring disciplinary charges against petitioner for his alleged use of corporal punishment. The TAC committee found probable cause to terminate petitioner's substitute teacher license and recommended to the Chancellor that disciplinary charges be preferred. In November 1985, respondents initiated a Special Circular 31 proceeding to rescind petitioner's substitute teacher license based on his alleged use of corporal punishment and suspended his license effective immediately.

The Special Circular 31 proceeding was commenced on February 18, 1986. The hearing was adjourned several times due to petitioner's simultaneous grievance proceedings and proceedings he brought pursuant to the Freedom of Information Law (FOIL) (Public Officers Law, Article 6). On March 1, 1991, following the Special Circular 31 proceeding, respondent Chancellor notified petitioner that his teaching certificate was terminated.

Petitioner appeals respondents' actions on several grounds. Based upon his receipt of a "satisfactory" rating as a result of his prior grievance, petitioner seeks an order finding his service as a substitute teacher, as of June 1985, satisfactory in all respects and asks that an individual rating form of "satisfactory" be executed. Petitioner also asks that I find that his substitute teacher license and certificate were improperly suspended prior to the hearing on the charges against him. He also claims that it is unlawful to grant tenured teachers due process rights not enjoyed by untenured teachers. He seeks annulment of the decision to terminate his substitute teaching license and reinstatement of the license.

With respect to petitioner's request that his performance for the school year ending June 1985 be deemed "satisfactory" in all respects, petitioner previously challenged his performance rating in a grievance proceeding which the Chancellor sustained on procedural grounds. Having pursued his remedy under the collective bargaining agreement, petitioner is precluded from seeking the same relief before the Commissioner of Education in an appeal brought pursuant to Education Law '310 (Matter of Board of Education of Commack UFSD v Ambach, 70 NY2d 522; Appeal of Garod, 31 Ed Dept Rep 526).

Petitioner also demands that, in addition to the written notice of determination from the Chancellor ordering that his rating be changed to "satisfactory", he receive a newly executed OP 151 individual rating form. However, petitioner sets forth no legal basis for awarding this relief. In fact, petitioner does not even allege that respondents failed to amend his official records to conform to the Chancellor's order. Petitioner, therefore, has not established a legal basis for the relief sought.

Petitioner also claims that, as a general principle, respondents violated his constitutional right to equal protection of the law by failing to afford him the same due process afforded tenured teachers prior to the termination of their services. While the Commissioner of Education will not decide novel issues of constitutional law (Appeal of DePasquale, 30 Ed Dept Rep 361; Appeal of DePold, 26 id. 460), petitioner's claim has been previously addressed and rejected by the United States Supreme Court in Board of Regents v Roth, 408 US 564 (1972). In that case, the Court recognized tenure as a property right, the deprivation of which entitles a tenured teacher to due process protections not enjoyed by nontenured teachers. Therefore, petitioner's general equal protection claim must be dismissed.

Petitioner also claims that his services were improperly terminated without notice or an opportunity to respond, in violation of due process. In addressing the measure of due process owed substitute teachers considered "probationary", the United States Court of Appeals stated in Cantry v. Board of Educ., (470 F2d 1111 [2nd Cir. 1972]:

The mere subjective expectancy of tenure did not entitle appellant to the full scale due process hearing to which a government employee is entitled when his employment falls within the Fourteenth Amendment's protection of liberty and property. See, Perry v Sinderman, 408 US 593 (1972); Board of Regents v Roth, 408 US 564 (1972).

More recently, in Castro v New York City Board of Education (777 F. Supp. 1113 [1990]), a federal district court recognized, once again, that probationary teachers do not hold a property interest under New York State law and, therefore, are not entitled to a hearing prior to dismissal.

In this case, petitioner was not even appointed to a probationary term, but served instead as a per diem substitute teacher. As such, he cannot claim to have even a "subjective expectancy of tenure" and, therefore, has no claim of entitlement to a full due process hearing (Matter of Martin, 25 Ed Dept Rep 21; Matter of Fitzgerald, 13 id. 204). Nevertheless, the record indicates that petitioner received some degree of due process prior to termination of his services. The principal spoke with petitioner regarding the complaints he had received on his use of corporal punishment and even brought one of the complainants to meet with him to discuss the matter. Thereafter, on June 14, 1985, petitioner also received written notice from the school principal informing him of the reasons for his termination. The notice indicated that, based on the seriousness of the complaints and the principal's investigation regarding petitioner's improper use of corporal punishment in the classroom, his services were terminated immediately. This action was consistent with the terms of the collective bargaining agreement applicable to regular and per diem substitute teachers which provided for their immediate termination in emergency situations. In addition, it should be noted that petitioner suffered no financial harm as a result of his termination since, according to the record, he was paid through June 17, 1985, the period in which he was engaged as a substitute. Consequently, I find that petitioner has not established entitlement to any greater measure of due process than he received prior to the termination of his services, and that respondent complied with applicable law and provisions of the collective bargaining agreement.

Petitioner also alleges that respondents improperly suspended his substitute teacher license without notice and an opportunity to be heard. On November 21, 1985, the Chancellor notified petitioner that, based on allegations of his use of corporal punishment, charges were being preferred against him to terminate his license as a substitute teacher. Petitioner received notice of the charges and specifications and was informed that a hearing would be held at which he was entitled to representation by counsel and to cross-examine witnesses. In that letter, the Chancellor further informed petitioner that he was suspended, effective November 21, 1985, pending a final determination after the hearing. The record indicates that petitioner's name was placed on an invalid license list for the duration of the hearing. Petitioner alleges that the suspension of his license during the hearing was improper as it occurred without an opportunity for a hearing prior to the suspension. Petitioner offers no legal basis to support his claim. The record indicates that the suspension was carried out in accordance with procedures set forth in Special Circular 31 which provided for immediate suspension in emergencies with a hearing to follow. Since the improper use of corporal punishment constitutes an emergency situation which would justify a teacher's immediate removal from the classroom, for the same reasons, I find respondents' actions equally proper with respect to the immediate suspension of petitioner's substitute teaching license pending the determination at the hearing.

Petitioner also challenges the Chancellor's determination to rescind his substitute teacher license. Petitioner argues that the procedures followed pursuant to Special Circular 31 were defective in several respects; he also challenges the final decision on the merits.

A review of the record indicates that respondents complied with the procedures set forth in Special Circular 31 in connection with the termination of a license or certificate held by a per diem substitute teacher. Initially, the school principal notified petitioner by letter dated June 14, 1985, that the complaints regarding his alleged use of corporal punishment would be brought to the attention of the Chancellor and community superintendent for appropriate administrative action. In accordance with local procedures set forth in Special Circular 31, a technical assistance conference (TAC) was held to determine whether probable cause existed to prefer charges. Petitioner claims that a TAC conference was not held, but the record does not support such a claim. As a result of the TAC, charges were preferred. Petitioner received written notice of the charges and, commencing on February 18, 1986, a hearing was held, at which petitioner was represented by counsel and cross-examined witnesses. Although petitioner claims that he was denied an opportunity to bring attorney Joel Martel with him to the hearing, the record indicates that petitioner requested Mr. Martel's presence only as an observer and that, in fact, petitioner was represented throughout the hearing by attorney Catherine Levine. Therefore, I find that petitioner's right to counsel was not violated.

Petitioner also complains that the initial notification of the need to terminate his license was not initiated by the community superintendent, as required by Special Circular 31. However, petitioner offers no proof to support his allegation except to point out that respondent failed to produce any initiating document by the community superintendent in this proceeding or in a previous proceeding under the Freedom of Information Law. I note that the TAC recommendation was copied to Dr. Fred Goldberg, who is, in fact, the appropriate community superintendent. Petitioner has the burden of proof. I conclude, therefore, that petitioner not only failed to establish his claim that a procedural error occurred, but even if it did, the error was deminimus and does not constitute a basis to sustain the petition.

Petitioner also challenges on two grounds the final decision to terminate his substitute teacher license. He asserts that, because he received a "satisfactory" rating for the period ending June 1985, the doctrine of resjudicata applies and he, therefore, cannot be dismissed. I note, however, that petitioner was rated "satisfactory" solely on the basis that he had not received a timely rating. Respondents indicate in their answer that, in sustaining petitioner's grievance on his "unsatisfactory" rating, the Chancellor simply held that, because petitioner did not receive a timely rating, his performance would be presumed satisfactory. At the hearing, however, the presumption of a satisfactory performance was rebutted through witness' testimony establishing that petitioner had improperly used corporal punishment against his students. Thus, the evidence presented at the hearing supported the determination to rescind petitioner's substitute teacher license, notwithstanding petitioner's prior "satisfactory" rating.

Petitioner also alleges bias on the part of various administrators connected with the hearing and further claims that the hearing was commenced as a retaliatory measure against him in violation of Labor Law '740. However, petitioner's allegations are conclusory in nature, as he failed to produce any evidence of bias in connection with his hearing. Nor has he established that respondents' actions were baseless or taken in retaliation against him.

Petitioner alleges that respondents maintain a secret file regarding his performance to which he has not been privy. According to petitioner, all of respondents' decisions were, in fact, based on its contents. Respondents deny the allegation and petitioner offers no proof to establish the existence of such a file.

Finally, petitioner alleges that certain administrative officials violated Penal Law '175, claiming that they falsified business records, tampered with public records and offered false instruments for filing. Petitioner bases his claims, in part, on his belief that, because respondents asserted that they were unable to locate certain documents in a prior proceeding under the Freedom of Information Law (FOIL), they must have subsequently altered or created those same documents which were submitted by respondents in this appeal. Initially, I note that respondents' attorney submits in a letter that respondents' inability to produce the documents in the FOIL proceeding was due to substantial office reorganization and restructuring at that time, during which they were unable to locate the documents. Although petitioner challenges the adequacy of such a letter, he does not dispute respondents' explanation and offers no other competent evidence to disprove the authenticity of the documents submitted by respondents for my review in this proceeding. Therefore, I find no basis on which to discount the documents for purposes of this appeal. To the extent that petitioner requests that I find respondents guilty of a crime under the Penal Law, conduct cannot be deemed "criminal" until so proven in an appropriate judicial forum (Appeal of the Board of Cooperative Educational Services of Southern Westchester, 32 Ed Dept Rep 358).

I also note that, in his subsequent submissions of August 1993, petitioner challenges the adequacy of the notice of the Chancellor's final determination in March 1991 to terminate his substitute teacher's license. While I have liberally permitted petitioner to augment the record in this appeal, he may not be permitted to continually add new claims which could have been raised earlier in the proceeding.

Upon review of the extensive record before me, I find that, in terminating petitioner's services as a substitute teacher, respondents complied with applicable due process requirements and, further, find no basis to overturn the Chancellor's determination.