Employee disciplined for alleged acts of misconduct that took place 20 years earlier
DeMichele v Greenburgh CSD #7, 167 F.3d 784
Section 3020-a(1) of the New York State Education Law provides that “no charges ... shall be brought more than three years after the occurrence of the alleged incompetency or misconduct, except when the charge is of misconduct constituting a crime when committed.”*
In the DeMichele case, a teacher in the Greenburgh Central School District #7 was found guilty of having inappropriate sexual contact with female students in incidents occurring more than 20 years earlier. The Second Circuit U.S. Court of Appeals sustained the school board’s decision to dismiss the teacher, even though the teacher had not been convicted of any “criminal act.”
Following the same logic as New York State courts that have addressed similar issues involving statutes of limitation under various disciplinary provisions, the federal court observed that the law does not require the individual to be found guilty of a felony in a criminal court for disciplinary charges to be filed after the three-year statute of limitations has expired.
Rather, the law merely characterizes the nature of the allegation. The law says that if a Section 3020-a hearing officer or disciplinary panel finds an individual guilty of an act that fits the definition of a felony under relevant criminal statutes, then a penalty may be imposed even if the disciplinary charges were brought after the three-year statute of limitations has expired (see Re Board of Education of City School District of the City of New York, Opinions of the Commissioner of Education No. 11353.**
The 20-year-old sexual misconduct charges arose after a newspaper reported that Greenburgh #7 teacher Robert DeMichele had been restored to the payroll in 1996 after serving one and one-half year disciplinary suspension. The article noted that the suspension without pay was imposed as a penalty after DeMichele was found guilty of having inappropriate conduct with female students during the 1991-92 and 1992-93 academic years.
After the article appeared, two women contacted district officials and alleged that DeMichele had sexually abused or molested them when they had been students in the district decades earlier -- during the 1972-73 and 1974-75 school years.
There was no dispute that the district was unaware of these allegations prior to its receiving the February 1996 reports. On March 11, 1996, the district initiated a second Section 3020-a disciplinary action against DeMichele. The hearing officer found DeMichele guilty of all but one of seven specifications set out in the charges. As a result, DeMichele was dismissed. The disciplinary determination was reported to the press.
The hearing officers ruled that (1) each instance of misconduct alleged in the second disciplinary proceeding constituted a crime when committed and (2) Section 3020-a does not require that the misconduct actually be the subject of a criminal prosecution. Rather than appeal the hearing officer’s determination, DeMichele sued in federal district court claiming that the second disciplinary action violated his rights under 42 USC. Section 1983. He contended that his rights were violated because:
1. The district forced him to defend charges concerning events that occurred more than 20 years ago, which left him unable to defend himself in violation of his right to due process under the Fourteenth Amendment; and
2. He was deprived of a liberty interest without due process under the Fourteenth Amendment when the district’s prosecutor disclosed the results of the hearing to the media.
In an unpublished decision, a federal district court judge granted the district’s motion for summary judgment and thus dismissed DeMichele’s petition without a hearing on the merits of the complaint. The Circuit Court of Appeals affirmed the lower court’s decision.
The Circuit Court said that to show a violation of due process as a result of delay in a hearing, New York State law requires the subject of an administrative disciplinary proceeding demonstrate that delay in initiating proceedings caused “actual prejudice” to his or her ability to defend against the charges. The court suggested that if the school district had known about the 1970s allegations before 1996 but delayed proceeding with discipline, DeMichele might have been able to show that his ability to defend himself had been compromised.
The court also addressed DeMichele’s claim that the dissemination to the media of the results of his second disciplinary hearing stigmatized him and wrongfully deprived him of his liberty interest under the Fourteenth Amendment. The court noted that this argument rested on the assumption that the results of the disciplinary proceeding were not a matter of public record, but instead were part of his “employment history” which could not be released under New York’s Freedom of Information Law, [Public Officers Law, Article 6, (“FOIL”)].
However, the decision noted that New York courts have found that the disposition of misconduct charges does not constitute part of an employee’s “employment history” as that phrase is used in FOIL, citing LaRocca v. Board of Educ. of Jericho Union Free School District, 632 N.Y.S.2d 576. The Circuit Court ruled that under the circumstances, the dissemination of the background and result of the first disciplinary hearing to the press did not deprived DeMichele of any liberty interest and dismissed the appeal.
* Section 75 of the Civil Service Law, a statutory disciplinary procedure covering employees in the classified service, also provides that there is no statute of limitations with respect to bringing disciplinary action against an individual where the charges of incompetency or misconduct “constitute a crime.”
** Section 3020-a(1) of the Education Law also requires that disciplinary charges be filed “during the period between the actual opening and closing of the school year” during which the employee is normally required to serve.
NYPPL