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Decision No. 14,986

Appeal of D.M. from action of the Department of Education of the City School District of the City of New York regarding teacher discipline.


 (November 25, 2003)


Michael Cardozo, Corporation Counsel, attorney for respondent, Sara Mason, Esq., of counsel  

MILLS, Commissioner.--Petitioner appeals the appointment by the Department of Education of the City School District of the City of New York ("respondent") of a single hearing officer, rather than a three-member panel, to hear disciplinary charges against her.  The appeal must be dismissed.

Petitioner is a tenured guidance counselor employed by respondent.  Pursuant to Education Law "3020-a, on March 12, 2003, petitioner was notified that disciplinary charges had been filed against her, including charges based on incompetence.  On March 21, 2003, petitioner requested a hearing on the charges, and also requested that the charges be heard by a three-member panel in accordance with "3020-a(2)(c).

Petitioner"s request for a three-member panel was denied, and on March 25, 2003 a single arbitrator was appointed to act as hearing officer and conduct the hearing.  Petitioner filed a motion on March 29, 2003 to dismiss several of the charges, and reiterated her demand for a three-member panel.  Respondent opposed the demand, on the ground that alternative disciplinary procedures contained in the latest collective bargaining agreement ("cba") between respondent and the United Federation of Teachers ("UFT") had extinguished the right of teachers in Education Law "3020-a to demand a three-member panel to hear disciplinary charges involving incompetence.

At a prehearing conference on April 3, 2003, the hearing officer expressed doubt as to whether his authority included making a determination regarding petitioner"s right to have her disciplinary charges heard by a three-member panel.  This appeal ensued.  Petitioner"s request for interim relief was denied on May 2, 2003.

Petitioner simultaneously commenced an Article 78 proceeding in New York County Supreme Court, to enjoin respondent from proceeding with the disciplinary hearing unless it appointed a three-member panel to hear the charges.  On April 28, 2003, petitioner obtained a temporary restraining order staying the arbitration, pending a determination on her Article 78 petition that was returnable on May 12, 2003.  The court issued an order and judgment on July 23, 2003 staying the arbitration until a decision is issued in this appeal to the Commissioner.

Petitioner contends that she is entitled to have the disciplinary charges heard by a three-member panel, and that she is entitled to select one of the members of the panel, because the charges against her include alleged pedagogical incompetence (Education Law "3020-a[2][c]; 8 NYCRR "82-1.4).  Respondent asserts that the cba between respondent and UFT established alternative disciplinary procedures, which were codified in Appendix C to the cba.  Respondent explains that Appendix C establishes a list of rotating single arbitrators, and eliminates the right of pedagogical employees covered by the cba to request a three-member panel.

The appeal must be dismissed because petitioner has elected to pursue her remedy in another forum.  It appears that the Supreme Court proceeding described above relates to the same set of facts and raises essentially the same issues as are raised in this appeal. Clearly, it is contrary to the orderly administration of justice to have multiple tribunals making determinations concerning the same controversy (Appeal of Phillips, 38 Ed Dept Rep 165, Decision No. 14,008; Appeal of Campbell, 33 id. 132, Decision No. 13,000; Appeal of Regent, et al., 27 id. 398, Decision No. 11,988).  In fact, petitioner has twice obtained interim relief from Supreme Court, which retains jurisdiction over this dispute.

I also note that petitioner failed to join the UFT as a party to this appeal, despite the fact that the UFT negotiated and is a party to the cba at issue.  Clearly, an interpretation of the cba would impact the rights of the UFT.

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