Monday, July 25, 2011

Suspended employee’s reinstatement conditioned on a written assessment from a licensed therapist

Suspended employee’s reinstatement conditioned on a written assessment from a licensed therapist
Matter of Board of Educ. of the City School Dist. Of the City of N.Y. v Campbell, 2011 NY Slip Op 32018(U), Sup Ct, NY County, Judge Joan A. Madden [Not selected for publications in the Official Reports.]

A tenured teacher employed by the Board of Education of the City was reassigned because of his alleged violation of the Board of Education’s Internet use policy barring accessing pornographic material on a school computer. Ultimate the teacher was served with disciplinary charges pursuant to Education Law 3020-a alleging conduct unbecoming a teacher, neglect of duty, and insubordination based on the teacher’s alleged use of a school computer to access and view pornographic and, or, inappropriate materials.

The hearing officer found that the DOE had failed to demonstrate that the teacher was guilty of the specifications charging him with viewing and downloading pornographic photographs, but held that he was guilty of specifications charging him with downloading and viewing two “inappropriate” photographs. 

In consideration of the teachers 15-year tenure without any prior discipline action having be taken against him, the penalty imposed by the hearing officer was "suspension without pay for the remainder of the school year, or 90 days, whichever is longer.” 

In addition, the hearing officer condition the teacher's return to work upon the teacher's “submitting a written assessment from a licensed therapist to the Department’s Office of Legal Services indicating that therapist “has read this Opinion and Award, has evaluated the Respondent, and that he or she concludes that the [teacher] is not addicted to Internet pornography and that his viewing of Internet pornography, as described herein, will not adversely affect his ability to teach and will not place students at risk.”

The teacher subsequently underwent a psychological examination conducted by a licensed therapist. The therapist’s report was provided to the DOE but Legal Services advised a representative of the Teachers’ Union that the therapist's assessment “does not sufficiently comply with the arbitrator’s directive.”

The teacher then filed a motion seeking a court order directing DOE to return him to his position and submitted the therapist's report to the court for its in-camera inspection.*

Upon review of the therapist's assessment, Judge Madden ruled that “it does not satisfy” the hearing officer’s directive, which required that, following an evaluation of the teacher, the therapist conclude “that [teacher] is not addicted to Internet pornography and that his viewing of Internet pornography will not adversely affect his ability to teach and will not place students at risk.”

The court pointed out that its ruling was supported by the therapist's acknowledgment in his report that he could not determine whether if the teacher was addicted to pornography, characterizing such determination as “nearly impossible,” and that he was only able to state that there “is no evidence that Campbell has an Internet addiction.”

Accordingly, said Judge Madden, a condition required by the Award relevant to the teacher’s reinstatement had not been met and denied the motion without prejudice to the teacher “seeking a further psychological assessment consistent with the Award.”

* In the context of this decision it appears that the term is used to mean "the judge takes a private look at the therapist's report." The term is more typically used to describe the process whereby a judge or hearing officer reviews evidence or documents  in private to determine whether sthe evidence or document is admissible.

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