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Monday, June 22, 2015

Administrative decision adversely affecting employee that considered allegations not set out in the charges vacated

Administrative decision adversely affecting employee that considered allegations not set out in the charges vacated
2015 NY Slip Op 04764,
Appellate Division, First Department

Supreme Court’s denial of a probationary teacher’s [Probationer] the petition to [1] annul the Board of Education’s [BOE] determination sustaining the Probationer’s an unsatisfactory rating (U-rating) as a teacher for the 2006-2007 school year, and [2] dismissing the proceeding, was unanimously reversed, on the law, by the Appellate Division. The Appellate Division then vacated Probationer’s U-rating for the 2006-2007 school year and remanded the matter to the BOE for “further proceedings consistent” with its ruling.

After discussing the events leading to Probationer’s U-rating, the court noted:

1. Probationer was informed that her file would be reviewed for a determination of whether her services as a probationary teacher would be discontinued and whether her teaching license would be terminated as of the close of business on July 15, 2007 “.based on professional attitude and professional growth; attention to records and reports; unsatisfactory classroom performance; poor planning and preparation; skill in adapting instruction to the individual needs of the students; evidence of pupil growth in knowledge and skills;" and

2. This letter constituted the charging document that was the basis of the ensuing hearing.

In particular the Appellate Division noted “missing from the charging document was any mention of excessive absences.”

An “officially designated” committee, composed of three members, conducted a review of [1] the decisions to issue Probationer’s U-rating for the 2006-2007 school year; to discontinue her probationary service; and [2] to revoke her New York City teaching certificate.

The majority of the committee concurred as to the recommendation to discontinue Probationer’s probationary service. However, said the Appellate Division, "[r]ecognizing that [Probationer] is young and inexperienced and that she had to take over a new class, which may have been more of a challenge than she could handle," the committee "reached unanimous non-concurrence on the recommendation to terminate all license(s)/certificate(s) held by [Probationer]."

Ultimately Probationer was advised that a "reviewed the report of [the committee] concerning the recommendation that all your teaching certificate(s)/licenses be terminated . . . and that your probationary service as a Teacher of Common Branches be discontinued," and the recommendation had been sustained. The Appellate Division noted that this determination was made “notwithstanding the unanimous view” of the committee that the recommendation to terminate all [Probationer’s] licenses/certificates … should not be adopted.”

One of the elements referred to in this “ultimate” ruling was the Probationer’s alleged “excessive absence” not withstanding, as the Appellate Division pointed out, no mention of  alleged excessive absences were setout in the “charging document.”

Probationer sought judicial relief in a prior proceeding which resulted in a Supreme Court concluding that the petition to review the termination of Probationer's probationary employment was time-barred. However the court granted Probationer’s petition to the extent of annulling the unsatisfactory rating and the revocation of Probationer’s teaching license. The court then remanded the matter for a new hearing on Probationer’s unsatisfactory rating and the imposition of a penalty.*

Supreme Court, in this earlier proceeding, also ruled the Probationer had not been provided with adequate notice that absenteeism was a basis for BOE’s taking adverse action against her and thus that its reliance on Probationer’s attendance record in making a final determination violated due process.

Nevertheless, on remand, BOE again relied on “evidence of absenteeism,” as did Supreme Court in upholding Probationer’s U-rating in the proceeding giving rise to this appeal.

The Appellate Division said that Supreme Court in this second Article 78 proceeding acted in a manner that was arbitrary and capricious, explaining that “While the evidence of pedagogical deficiency — apart from the evidence of absenteeism — might, by itself, be sufficient to warrant the U-rating, that is for [BOE] to decide.”

The Appellate Division ruled that if on remand BOE “declines to sustain [Probationer’s] unsatisfactory rating, [BOE] is free to reconsider the termination of her probationary employment.”

However, in the event BOE sustains the unsatisfactory rating, it is precluded from imposing the penalty of revocation of Probationer’s teaching license because the judgment in the first Article 78 proceeding directed that the penalty, if any, should be something less than revocation of Probationer's license, and BOE did not appeal from that judgment.

Noting that “it is significant that the wrongful admission of evidence in this case occurred after a specific direction from [Supreme Court] that evidence of absenteeism was not authorized, based on the charges,” the Appellate Division again remand the matter to BOE for its reconsideration of Probationer’s performance rating for the 2006-2007 school year “based solely on the evidence related to the charges of which [Probationer] received proper notice.”

* The Supreme Court’s decision in that action is posted on the Internet at:

The Appellate Division's decision is posted on the Internet at:

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