Appeal of the New York City Department of Education, on behalf of Community School District 13, with respect to a disciplinary proceeding brought against Alfonzo Forrest, a/k/a Alphonzo Forrest, Principal of P.S. 256, pursuant to Education Law �3020(3).

 

Decision No. 15,482

 

(October 31, 2006)

 

Michael Best, Esq., General Counsel, attorney for petitioner, Judy E. Nathan, Esq., of counsel

 

Bruce K. Bryant and David Grandwetter, Esqs., attorneys for respondent

 

MILLS, Commissioner.--Petitioner, the New York City Department of Education, on behalf of Community School District 13, brings this appeal seeking termination of Alfonzo Forrest, a/k/a Alphonzo Forrest ("respondent"), as principal of P.S. 256.� The appeal must be dismissed.

In January of 2000, the Legislature amended Education Law �3020 by adding a new subdivision three:

3.        Notwithstanding any inconsistent provision of law, the procedures set forth in section three thousand twenty-a of this article and subdivision seven of section twenty-five hundred ninety-j of this chapter may be modified or replaced by agreements negotiated between the city school district of the city of New York and any employee organization representing employees or titles that are or were covered by any memorandum of agreement executed by such city school district and the council of supervisors and administrators of the city of New York on or after December first, nineteen hundred ninety-nine.� Where such procedures are so modified or replaced: (i) compliance with such modification or replacement procedures shall satisfy any provision in this chapter that requires compliance with section three thousand twenty-a, (ii) any employee against whom charges have been preferred prior to the effective date of such modification or replacement shall continue to be subject to the provisions of such section as in effect on the date such charges were preferred, (iii) the provisions of subdivisions one and two of this section shall not apply to agreements negotiated pursuant to this subdivision, and (iv) in accordance with paragraph (e) of subdivision one of section two hundred nine-a of the civil service law, such modification or replacement procedures contained in an agreement negotiated pursuant to this subdivision shall continue as terms of such agreement after its expiration until a new agreement is negotiated.� Notwithstanding any inconsistent provision of law, the commissioner of education shall review any appeals authorized by such modification or replacement procedures within fifteen days from receipt by such commissioner of the record of prior proceedings in the matter subject to appeal.� Such review shall have preference over all other appeals or proceedings pending before such commissioner.

Pursuant to the authority granted by subdivision three, on December 16, 1999, the Council of Supervisors and Administrators of the City of New York, Local 1, American Federation of School Administrators, AFL-CIO (the "CSA") and the Board of Education of the City School District of the City of New York (the "Board") entered into an agreement ("the Agreement") providing for modified disciplinary procedures.� With respect to principals, the parties, in Section 7(A)(ii) of the Agreement, provided in pertinent part:

a. Allegations of Misconduct.� Allegations of misconduct may be brought at any time.� Upon receipt of a written notice of allegations of misconduct and proposed adverse action, a principal may be removed from his or her position without pay or demoted with reduced pay pending an arbitrator's decision.� At the principal's option, the allegations may be presented to the arbitrator who will render a decision as to whether there is just cause for the proposed adverse action.� The arbitrator's decision shall be rendered within thirty (30) days of the notice of the allegations.� The arbitrator's decision shall be binding unless overturned by the Commissioner of Education of the State of New York (the "Commissioner").� If the arbitrator determines that the charges are unfounded, the principal shall be restored to his/her position with full pay; however, the imposition of the penalty may continue for up to 30 days from the time of the arbitrator's decision.

b. (omitted)

c. (omitted)

d. Chancellor Review.� The Chancellor upon the request of the Superintendent or the principal may review the arbitrator's decision, which review must be completed within 15 days of the arbitrator's decision.� The employee shall be provided with written notice of the outcome of the Chancellor's review.� The Chancellor may decline to implement an arbitrator's decision disciplining a principal.� If the Chancellor implements the arbitrator's decision against the principal, the principal may apply to the Commissioner for a review of the arbitrator's decision.� The Chancellor may review an arbitrator's decision that does not sustain the Superintendent's charges.� In such a case, if the Chancellor disagrees with the arbitrator's decision the matter shall be transmitted to the Commissioner for a determination.

e. Commissioner's Review.� The Commissioner shall review the arbitrator's decision when it is transmitted to him or her.� The Commissioner shall issue a decision within 15 days of transmittal.� The Commissioner's decision shall be subject to an Article 78 review.

On January 18, 2006, respondent was involved in an incident involving two students.� Pursuant to Section 7(A)(ii)(a) of the Agreement, a written notice of allegations of misconduct and proposed adverse action was prepared and served on him.� Specifications included: (1) striking and screaming at a student; (2) threatening a second student who witnessed the incident; (3) engaging in inappropriate verbal harassment of the second student; and (4) having an agreement with the parents of the first student allowing him to impose physical discipline on that student, while failing to report that agreement to the proper authorities.

Pursuant to the Agreement, an arbitration hearing was conducted on several dates in February and March of 2006.� Closing arguments were presented on March 16, 2006 and the arbitrator rendered his final decision on April 22, 2006.� The arbitrator found respondent guilty of the first three specifications, but not guilty as to the fourth specification.� He directed that respondent, who had been suspended without pay since January 18, 2006, should remain suspended without pay for the balance of the academic year, through June 30, 2006, and further directed that respondent, at his own expense, enroll in, and successfully complete, a course in stress and/or anger management before the end of the 2006 calendar year.� He further ruled that respondent should be restored to his position as principal of P.S. 256 at the commencement of the 2006-2007 academic year.

Upon the conclusion of the arbitration, it does not appear that any party requested that the Chancellor review the arbitrator's decision pursuant to Section 7(A)(ii)(d) of the Agreement, nor does it appear that the Chancellor reviewed the arbitrator's decision on his own initiative.� Rather, it appears that petitioner commenced a special proceeding (The Board of Education of the City School District of the City of New York for a Judgment Pursuant to �3020-a(5) of the Education Law and Article 75 of the Civil Practice Law and Rules v. Alfonzo Forrest) in Supreme Court, New York County.� On September 7, 2006, the Court denied the application (Hon. Robert D. Lippmann, J.S.C.), as follows:

Upon the foregoing papers, the Board of Education brings a petition to vacate penalties made by the Hearing Officer in an April 24, 2006 decision in a hearing pursuant to the Education Law �3020-a[sic].� The argument is that the head master should be terminated for having spanked a student with his belt.� The hearing officer suspended the principal for the balance of the year 2005-2006.� The Board of Education had 15 days to appeal to the Chancellor and it failed to do so within the allowed time period.

Accordingly, the application is denied.� The Respondent is reinstated to his post as Principal of P.S. 256 with full salary and benefits back to July 1, 2006.

This constitutes the decision and order of the court.

Justice Lippmann's decision and order was entered September 12, 2006, and was served, with notice of entry, on or about September 26, 2006.

���� Petitioner then tried to commence this appeal by attempting to serve respondent at his residence on October 10, 2006.� The process server, finding no one at home, affixed a copy of the papers to the door of the house.� The following day, October 11, 2006, the process server again visited respondent's residence, and left a copy of the appeal papers with a person who identified herself as respondent's mother.� The process server also mailed a copy of the appeal to respondent on October 11, 2006.

���� Petitioner submits this appeal seeking the penalty of termination of employment, rather than the suspension without pay imposed in the arbitrator's decision.� Petitioner acknowledges that this appeal was filed "more than 15 days after the DOE's receipt of the [arbitrator's] decision."

���� The appeal must be dismissed.� Section 7(A)(ii)(d) of the Agreement clearly provides that either the Superintendent or the principal may request a review of the arbitrator's decision by the Chancellor, which must be completed within 15 days of the arbitrator's decision.� The Chancellor may also review an arbitrator's decision that does not sustain the charges on his own initiative.� However, in either case, the Agreement contemplates that the Chancellor will review the arbitrator's decision, and render a decision of his own.� For that reason, both ��281.6 and 281.7 of the Commissioner's regulations require both the appellant and the respondent to state the date of the Chancellor's decision.� Section 281.7(b)(5) also requires that the Chancellor's written decision be made a part of the record.� The record before me contains no such decision.

���� Moreover, the New York County Supreme Court previously interpreted the Agreement and determined that the Board of Education had failed to make a timely appeal to the Chancellor, thereby precluding further review.� This determination has not been appealed.� In effect, petitioner is asking me to overrule the determination made by the Supreme Court, which I have no authority to do.� Petitioner is bound by the result of the Article 75 proceeding it initiated, and I am therefore constrained to dismiss this appeal.

���� Even if I were not constrained to dismiss this appeal based upon the Supreme Court's determination, I would dismiss it for improper service.� Part 281 makes no provision for service upon an individual respondent who is neither the Chancellor nor the Community School District Superintendent who initiated the arbitration proceeding, or a person designated by them.� Pursuant to Commissioner's regulation �275.8(a), which governs the manner of service in appeals generally, a respondent must be personally served, or, "if he cannot be found upon diligent search, by delivering and leaving the same at his residence with some person of suitable age and discretion, between six o'clock in the morning and nine o'clock in the evening, or as otherwise directed by the commissioner."� Petitioner's affidavit of service in this matter indicates only one attempt to serve respondent personally on October 10, 2006, before serving the person who identified herself as his mother on October 11.� This is not a "diligent search."� In addition, the affidavit of service fails to state that service occurred between the hours of 6:00 a.m. and 9:00 p.m.� Section 275.8 does not authorize so-called "nail and mail" service by affixing papers to respondent's door and by subsequent mailing.

���� The use of force by a teacher or administrator against a student is a very serious matter.� It is not something that can be overlooked or tolerated in our schools.� However, in this particular case, because of the prior determination of the Supreme Court, and the procedural errors discussed herein, including the absence of a determination by the Chancellor, I have no alternative but to dismiss the appeal.

 

THE APPEAL IS DISMISSED.

END OF FILE