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Friday, April 05, 2013

Arbitration award remanded “for the imposition of an appropriate lesser penalty” based on the court’s finding that employee was not guilty of one of the Specifications of the Charges filed against her


Arbitration award remanded “for the imposition of an appropriate lesser penalty” following the court’s finding that employee was not guilty of one of the Specifications of the Charges filed against her

Specification A-1 of the charges preferred against a tenured New York City school  teacher by the New York Department of Education [DOE] alleged that she had engaged in the scheme to avoid payment of non-resident tuition by enrolling her granddaughter in the school at which she taught. The arbitrator found the school teacher guilty of that Specification, among others, and imposed the penalty of dismissal.

Supreme Court confirmed the arbitration award but on appeal the Appellate Division unanimously vacated the arbitrator’s finding that the teacher was guilt of Specification 1-A-1 of the charges. Accordingly, the Court vacated the penalty of termination and remanded the matter for the imposition of an appropriate penalty.

According to the decision, DOE had conceded at the hearing that teacher's granddaughter was entitled to a tuition-free education in New York City public schools and the hearing officer made no finding that the child was not a City resident. Further, said the Appellate Division, the record did not establish that the child was not a City resident.

Thus, said the court, there was no rational basis upon which to conclude that teacher had engaged in a scheme with the purpose of defrauding DOE out of non-resident tuition.

On the other hand, the court noted that the teacher conceded, and there was substantial evidence in the record to support a finding of guilt with respect to Specification 1-B of the Charges filed against her -- that she acted in concert to file a false instrument.

Specification 1-B alleged that the teacher had engaged in a scheme to use a school aide's address to enroll her granddaughter in the school at which she taught, and that she improperly obtained the school's services (Specification 1-A-2), as the child should not have been enrolled in that school.

The Appellate Division remanded the matter “for the imposition of an appropriate lesser penalty.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_02333.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/

A Reasonable Penalty Under The Circumstances 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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