Tuesday, July 10, 2012

Investigating anonymous allegations of wrongdoing by a public official


Investigating anonymous allegations of wrongdoing by a public official
Application of Crystal Barton for the removal of Ralph R. Hernandez as a member of the Board of Education of the City School District of the City of Buffalo, Decisions of the Commissioner of Education, Decision No. 15,832

Crystal Barton, a high school principal employed by the Board of Education of the City School District of the City of Buffalo (“board”), asked the Commissioner to remove Ralph R. Hernandez from office as a member of the board.

According to the Commissioner’s decision, Hernandez sent a letter "asking that [the Commissioner] initiate an investigation into certain allegations of employee misconduct and/or criminal activity by employees at McKinley High School, where Barton is employed as principal." Hernandez attached an anonymous letter he had received which made numerous allegation of wrongdoing on the part of Barton.

Barton claimed that the letters to the Commissioner amounted to commencement of a disciplinary proceeding against her, and that her rights were violated because the disciplinary proceeding did not comply with Education Law §3020-a.

She also alleged that Hernandez and the board exceeded their authority under Education Law §2554 by sending letters to the Commissioner and that Hernandez and other board members have made statements to the media which were critical of her. She asked the Commissioner to remove Hernandez from the board, and for a declaration that other board members have exceeded their authority under Education Law §2554.

The Commissioner dismissed Barton’s appeal for a number of technical reasons.

As to anonymous allegations, however, such allegations should not be ignored by an appointing authority. A judgment should be made as to the extent of any investigation required based on "reasonable suspicion." In the Shepard v Ward, 547 NYS2d 57, the Appellate said that suspicious behavior coupled with anonymous tips provided a basis for reasonable suspicion.

In Board of Educ. of City School Dist. of City of New York v. Mills, 250 A.D.2d 122, an anonymous letter was the genesis of disciplinary action taken against a physical education teacher. The letter alleged that the teacher was having an inappropriate relationship with a female student. An initial investigation revealed that educator had, in fact, formed a romantic relationship with the student.

During the course of the investigation the teacher refused to be interviewed by a confidential investigator. He was then subpoenaed to appear to give testimony during a prehearing inquiry concerning his relationship with the student.

The teacher appeared with his attorney and, prior to being questioned, was informed that he had an obligation to cooperate with the investigation, that he was being granted use immunity*and that if he failed to answer questions at this stage of the proceeding, his refusal would be construed as a failure to cooperate and would subject him to dismissal.

In spite of having been granted use immunity, the teacher answered only pedigree and background questions, refusing to answer any questions regarding his relationship with the student. The Commissioner upheld the Hearing Panel's determination regarding the teacher's inappropriate relationship with the student and imposed a three years' suspension without pay as the penalty.

* Use immunity   The question of compelling a public officer or employee to testify or risk termination was considered by the Court of Appeals Matt v LaRocca, 71 NY2d 154. In the Matt case the court of appeals held that when a public employee is threatened with termination if he or she refuses to testify under oath, the testimony given by the individual is "cloaked with use immunity."

The Commissioner’s decision in the Barton case is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume48/d15832.htm

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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