January 22, 2016

Opening a disciplinary hearing to the public and other procedural matters addressed in an appeal to the Commissioner of Education

Opening a disciplinary hearing to the public and other procedural matters addressed in an appeal to the Commissioner of Education
Appeal of Ling Ling Chou from a disciplinary proceeding brought pursuant to Education Law §3020. Decisions of the Commissioner of Education, Decision No. 16,861

Carmen FariƱa, Chancellor of the New York City Department of Education, implemented the arbitrator’s decision to suspend Ling Ling Chou from her position as principal of P.S. 184M without pay.  The Commissioner, in dismissing the appeal, addressed a number of issues, including the following:

Opening the arbitration hearing to the public:
With regard to the conduct of the hearing, Ms. Chou claimed that the hearing officer erred in closing the hearing after she had elected to have a public hearing, pursuant to Education Law §3020-a(3)(c)(i)(C). 

The Commissioner noted that in his decision, the hearing officer explained that the hearing was subsequently closed to the public, in part, due to “potential and actual” violations of the federal Family Educational Rights and Privacy Act.  She then said the “Even if I were to determine that closure of the hearing to the public was not proper, under these circumstances, Ms. Chou has alleged no harm or prejudice resulting therefrom and, in any case, such error would not be a basis for overturning the suspension imposed upon Ms. Chou.”  

Refusal to hear “pertinent testimony”
Ms. Chou alleged that the arbitrator refused to hear “pertinent witness testimony. However, in  an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief. 

Here, said the Commissioner, Ms. Chou asserted her claim in a conclusory fashion and did not set forth what, if any, “pertinent witness testimony” was precluded nor did she establish how such testimony would have impacted her case.  Other than her conclusory assertion, Ms. Chou, the Commissioner said that she failed to set forth facts or citations in the record on which to establish her claim.  Consequently, the Commissioner ruled that Ms. Chou failed to meet her burden of proof in this regard.

Failure to follow the §3020-a disciplinary process
Ms. Chou, said the Commissioner, contended that the New York City Department of Education “inexcusably did not follow the process defined in §3020-a(4)(D)(i-a)(A) for bringing charges of incompetence based solely on a pattern of ineffectiveness. Instead, a full disciplinary hearing was implemented by [the Department] without giving petitioner an opportunity to develop a correction plan for alleged inefficiencies, as statutorily required.” 

The Commissioner explained that Education Law §3020-a(3)(D)(i-a)(A) was the statutory provision relating to expedited hearings on charges of incompetence based solely on a pattern of ineffectiveness that existed prior to July 1, 2015, not Education Law §3020-a(4)(D)(i-a)(A) as erroneously cited by Ms. Chou.  That former provision was deleted by section three of Subpart G of Part EE of Chapter 56 of the Laws of 2015, though it was in effect at the time of petitioner’s hearing.  

In any event, to the extent that Ms. Chou argued that she was entitled to an expedited hearing because she was charged with incompetence based solely on a pattern of ineffectiveness, the Commissioner decided that the record did not support any such claim. 

The decision is posted on the Internet at:

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