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January 19, 2011

Duty to file disciplinary charges

Duty to file disciplinary charges
Anonymous v Nassau County, Supreme Court, Nassau County, Justice Phelan [Not selected for publication in the Official Reports]

From time to time the question of whether a public employer acted reasonably when it filed disciplinary charges against an individual is raised in the course of litigation. The Lindenhurst case, brought by a school teacher against whom disciplinary charges had been served and who then sued the district for malicious prosecution, raised this issue.

The Lindenhurst Union Free School District filed Section 3020-a disciplinary charges against one of its teachers, after it was reported that the teacher was a voyeur who looked at photographs of teenage girls to sexually satisfy himself.

A Nassau County police detective had found two envelopes of developed photographs in a parking lot. The pictures were of women, mostly teenagers, clothed or in bathing suits. The detective determined that the teacher, using a fictitious name and address, had brought the film to a processor for developing. Ultimately, the photographs were determined to have been take from the teacher's home.

No criminal charges were filed against the educator but the New York State Education Department was advised of the situation and provided with a copy of a statement in which the detective claimed the teacher had told him that he was a voyeur who looked at photographs to sexually satisfy himself. Eventually this information was transmitted to the superintendent and school board.

The educator was charged with (1) conduct unbecoming a teacher based on allegations that he took photographs of unknowing females for the purpose of using these photos for sexual gratification; and (2) lying to the Associate Superintendent about taking the photos .... As a result the teacher was suspended with pay but ultimately the board dismissed the Section 3020-a charges and reinstated him to his position.

Contending that the board’s action violated his civil rights [42 USC 1983], the teacher sued the district and its superintendent in federal court. Federal District Court Justice Joanna Seybert dismissed his federal claims, holding that the actions taken by the district were reasonable. In the words of the court, [t]he information these defendants had obtained led them to take appropriate and reasonable actions under the circumstances as they knew them to be.

The educator, however, had also filed a state law claim against the district and the superintendent for malicious prosecution. The county and the detective were also named as defendants in the State action. State Supreme Court Justice Thomas P. Phelan ruled that the teacher’s state law claims against the district and the superintendent were barred by the doctrine of collateral estoppel as the federal court clearly determined that defendant School District and Superintendent acted properly in preferring charges pursuant to Education Law Section 3020-a against the teacher.

Justice Phelan said that he agreed with the district’s argument that presented with information that a school teacher engaged in sexual self-stimulation with the aid of photographs of school-aged children -- whether ultimately true or not -- the defendants would have been remiss in their duties had they taken no action at all.

Was the district required to file disciplinary charges against the educator after receiving the report from the Education Department? Not necessarily, as the decision by the Commissioner of Education in the Covino case indicates [Matter of Covino, Decision 11227]. The Covino decision holds that a board is not required to serve disciplinary charges against an individual simply because it is advised of allegations of wrongdoing on the part of the employee.

A parent complained that Covino, a teacher-coach, had been involved in the hazing of a student by other students. The parent wanted the school board to dismiss Covino and a bus driver who was alleged to have been present during the incident. The board’s response to the parent’s complaint was to suspend the teacher from his coaching duties. It did not initiate formal disciplinary action against either the teacher or the driver.

This, however, did not satisfy the parent and he appealed to the Commissioner of Education in an effort to obtain an order requiring the board to initiate disciplinary action seeking removal of the teacher.

Noting that a resident of a school district may file disciplinary charges against a tenured teacher, the Commissioner said that a board of education must have a reasonable basis for its decision whether or not to proceed with the disciplinary action.

The Commissioner decided that board’s investigation of the incident, followed by its relieving the teacher of his coaching duties was sufficient under the circumstances. He ruled that the board had a reasonable basis for the action it took and its decision not to pursue further disciplinary action was neither arbitrary nor capricious.

The test set out by the Commissioner in the Covino decision: did the board investigate the allegations and then make a reasonable determination whether or not to take further action?

The employer, once having completed its investigation, essentially has the following options available to it:

1. Decide that filing disciplinary charges or taking other administrative action against the individual is unwarranted;

2. Decide that there is insufficient evidence to justify the filing of disciplinary charges but that some other administrative action, such as counseling the individual, is appropriate.

3. Decide that filing disciplinary charges against the individual is appropriate under the circumstances.

If the employer determines that it is appropriate to bring disciplinary action against an employee, may it demand that the individual resign or be served with charges? In a word: YES!

In Rychlick v Coughlin, 63 NY2d 643, a case involving a tenured State employee, the Court of Appeals said the employer could threaten the employee with disciplinary action if he or she did not resign. The court pointed out that threatening to do what the appointing authority had a legal right to do -- file disciplinary charges against the individual -- did not constitute coercion so as to make the resignation involuntary.

Sometimes the employer will agree not to reveal the reasons underlying its demanding the employee’s resignation to potential employers in the future. The employer’s ability to agree that the reasons leading to the demand for the resignation shall remain confidential has been tempered, however.

In response to the so-called silent resignation in cases involving child abuse in an educational setting by a school employee, the New York State Legislature has declared that making an agreement to maintain confidentiality in resignation situations where allegations of child abuse have been leveled against an individual is against the public policy of this State.

A new provision, Education Law Section 1133, bars a school administrator or superintendent from agreeing to withhold the fact that an allegation of child abuse in an educational setting was involved in the separation of the employee or volunteer in return for the individual’s resignation or agreement to a suspension from his or her position.

A violation of Section 1133 is a Class D felony and, in addition, shall also be punishable by a civil penalty not to exceed $20,000.

In addition, Subdivision 3 of Section 1133 provides that “[a]ny superintendent of schools who in good faith reports to law enforcement officials information regarding allegations of child abuse or a resignation as required by this article shall have immunity from any liability, civil or criminal, which might otherwise result by reason of such actions.”
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The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State, is available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic handbook.


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