Monday, October 17, 2011

Statutory rights to due process in a disciplinary action


Statutory rights to due process in a disciplinary action  
Matter of Soleyn v New York City Department of Educ., 2011 NY Slip Op 32604(U), Supreme Court, New York County, Docket Number: 106290/10, Judge: Emily Jane Goodman. Not selected for publications in the Official Reports.

Although Earl Soleyn, a teacher employed by the New York City Department of Education, was informed of his right to a disciplinary hearing, and participated in the proceeding with counsel, he challenged the process claiming that he was denied due process because disciplinary charges were not initially reviewed by the governing school board for a finding of probable cause. Instead, Soleyn contended, his school principal made the finding of probable cause.

Soleyn also alleged that his right to due process was violated because the disciplinary action was heard by a single arbitrator not withstanding his request that a three-member panel hear the charges filed against him.

As to Solon’s claim that the school board, rather than his principal, was required to make a finding of probable case, Judge Goodman said that Education Law §3020-a (1), in pertinent part, provides that "[a111 charges against a person enjoying the benefits of tenure . . . shall be in writing and filed with the clerk or secretary of the school district or employing board . . . after receipt of charges, the employing board, in executive session, shall determine by a vote of a majority of all the members of such board, whether probable cause exits to bring a disciplinary proceeding against an employee pursuant to this section.

Here, however, the Department contended that due process was not violated because on August 16, 2007, then-Chancellor Joel Klein delegated, pursuant to Education Law §2590h(19), the power to initiate and resolve disciplinary charges against teaching and supervisory staff members who have completed probation, to all high school principals.

Although Soleyn argued that such delegation would mean that the accuser makes the finding of probable cause, Judge Goodman disagreed and held that Chancellor Klein’s delegation did not constitute a violation of due process, where, as here, the ultimate fact finder is a neutral decision maker.

Addressing Soleyn’s claim that his due process rights were violated because the matter was heard by a single arbitrator, instead of a three-member panel, Judge Goodman said that the Department had rebutted this argument by citing Article 23 Section G of the DOE-UFT Collective Bargaining Agreement, which provides for a single arbitrator. 

Probably the seminal case addressing the impact of a collective bargaining agreement’s establishing alternate disciplinary procedures to those set out in law is Matter of Antinore v State of New York, 40 NY2d 6. Here the Court of Appeals ruled that a union could bargain away the employee’s statutory disciplinary rights if the alternate procedure so negotiated provided constitutional due process protections equivalent to those available under the statute.

The Soleyn decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2011/2011_32604.pdf

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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