Monday, June 15, 2015

Termination for lack of the proper teaching certificate not a disciplinary action requiring “notice and hearing”


Termination for lack of the proper teaching certificate not a disciplinary action requiring “notice and hearing”
2015 NY Slip Op 04732, Appellate Division, First Department

The Appellate Division rejected a teacher’s attempt to have the court annul the Department of Education of the City of
New York's (DOE) decision to terminate his employment.

The teacher’s employment had been terminated because of his “failing to maintain minimum qualifications” – his teaching certificate.  The Appellate Division ruled that the teacher had not been terminated for disciplinary reasons* and thus he was not entitled to a hearing pursuant to Education Law §3020-a, citing Matter of NYS Office of Children and Family Services v Lanterman.

In Lanterman, 62 AD3d 1118, affirmed 14 NY3d 275, [Ciparick, J., dissenting] the decision explains that an employee terminated after losing the license required to perform the duties of the position was not entitled to a pre-termination disciplinary hearing because “whether a teacher has the statutorily required qualifications for the position is not a disciplinary matter subject to that provision.”

Rather, said the court, "certification is a statutory prerequisite that an individual is required to have to qualify for a teaching position in the public school system; it has nothing to do with discipline and, as such, is not an issue that is subject to arbitration under [the cited] provision of the [collective bargaining agreement].”

In Lanterman  two state employees had challenged their dismissal because they lacked the credentials required for their jobs. The workers had demanded that the question of whether their dismissals were disciplinary actions should be submitted to arbitration. Here the Court of Appeals, citing Matter of Felix v New York City Dept. of Citywide Admin. Servs. 3 NY3d 498, indicated that dismissals based of the lack of "credentials required for [the] job" clearly were not disciplinary actions and “the [Lanterman plaintiffs'] assertion that they were does not have a relationship with their collective bargaining agreement sufficient to justify arbitration of the issue.”

* The court, noting that DOE’s decision to terminate the individual was based on his lack of a proper teaching certificate was not arbitrary and capricious, observed that the teacher had failed to show that when DOE terminated his employment that he had been “retroactively certified.” This suggests that the employer should make some minimum inquiry concerning the employee's possession of a valid license, certification or other instrument required by statute to lawfully perform the duties of the position.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2015/2015_04732.htm




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