Thursday, April 28, 2016

The suspension of a tenured teacher requires the board of education to serve written disciplinary charges against the teacher within a reasonable amount of time


The suspension of a tenured teacher requires the board of education to serve written disciplinary charges against the teacher within a reasonable amount of time
Appeal of Kavanaugh v Board of Education of the Hamburg Central School District, et al, Decisions of the Commissioner of Education, Decision No. 16,897

Martha A. Kavanaugh, a tenured teacher, appealed the decision of the Hamburg Central School District Board of Education placing her on "administrative leave and/or suspend[ing] her with pay” effective January 15, 2014. The noticed placing Kavanaugh in such status stated that the School Board was “investigating [her] conduct as a school district employee” and that “[w]hile on leave, you are not permitted on District grounds, including any school buildings.” 

On September 2, 2015, the School Board served disciplinary charges against Kavanaugh pursuant to Education Law §§3020 and 3020-a alleging “incompetence/neglect of duty and insubordination.” Kavanaugh requested an administrative hearing on these charges which the Commissioner’s decision indicates “appear to be pending” at the time the Commissioner considered Kavanaugh’s Education Law §310 appeal.

In this appeal Kavanaugh contended that the School Board’s action placing her on “administrative leave” on January 14, 2014, and thereafter extending her “suspension” on March 2, 2015, without filing disciplinary charges against her were unlawful.*

As redress, she asked the Commissioner to [1] declare such action by the Board null and void; [2] direct the Board to reinstate her to her former position; and [3] direct the Board to expunge any reference to the alleged unlawful suspension or to any disciplinary actions relating to that period of time from her personnel records.**  Additionally, Kavanaugh sought reimbursement of legal fees she had incurred as a result of the suspension; a declaration that Board’s actions violate both the Education Law and the Board members’ oath of office; that the Commissioner reprimand the respondents in this appeal; and an order directing such respondents to publicly apologize to her.

The School Board, in rebuttal, argued, among other things, that its placement of Kavanaugh on administrative leave was proper in all respects; that Kavanaugh failed to establish that Board acted in an arbitrary and capricious manner, and that Kavanaugh failed to state a claim. 

Addressing a number of procedural objections advanced by the School Board, the Commissioner ruled that as the Board’s action challenged by Kavanaugh “clearly affected [her] directly and she is asserting an adverse effect upon her personal and property rights as a result of being removed from her teaching duties,” Kavanaugh had standing to maintain her appeal.***

In response to the School Board’s argument that Kavanaugh’s challenging the Board’s actions of January 14, 2014 and March 2, 2015 regarding placing, or continuing, her on leave and/or suspending her with pay was untimely, the Commissioner ruled that Kavanaugh’s appeal was not untimely as these actions by the Board, if proven, would constitute a continuing wrong, commenting that “[t]he continuing wrong doctrine applies when the ongoing action is itself an unlawful action….”

Noting that the suspension of a tenured teacher requires a board of education to file written charges with the clerk or secretary of the board, the Commissioner ruled that “the suspension of a tenured teacher without the filing of such charges is ultra vires[acting beyond one's legal power or authority] and, thus, constitutes a continuing wrong” and, accordingly, Kavanaugh’s appeal was not untimely.

Addressing the merits of Kavanaugh’s appeal, the Commissioner again observed that “the suspension of a tenured teacher requires the board of education to file written charges within a reasonable amount of time, and that the suspension without the filing of charges is ultra viresand in violation of the individual’s tenure rights.” In this instance, said the Commissioner, a tenured teacher was suspended more than 19 months before disciplinary charges were served on her and she was prohibited from coming on school property and could not consult with her colleagues during this period.

Conceding that the School Board correctly asserted that a board of education has the right to place an employee on administrative leave pending an investigation and/or pending disciplinary charges being filed against an employee, the Commissioner said that, on this record, she found that the School Board’s actions constitute an unlawful suspension in the absence of the timely filing of disciplinary charges against Kavanaugh.  Accordingly, the Commissioner ruled that as the School Board did not act within a reasonable amount of time to prefer charges against Kavanaugh after removing her from teaching duties, “such removal must be deemed null and void and expungement is warranted.”

The Commissioner then directed “that any and all references to the January 14, 2014 placement of [Kavanaugh] on administrative leave and March 2, 2015 suspension be stricken from [Kavanaugh’s] records and personnel files [but that] nothing herein shall be construed as nullifying [the School Board’s] September 2, 2015 action to prefer charges pursuant to Education Law §3020-a."

* Kavanaugh did not challenge the §3020-a charges preferred against her by School Board on September 2, 2015 that were then the subject of the pending administrative hearing. 

** Kavanaugh also sought reimbursement of legal fees she incurred as a result of the suspension; a declaration that Board’s actions violate both the Education Law and the defendant Board members’ oath of office; that the Commissioner reprimand certain of the defendants; and the Commissioner order the School Board and the School Superintendent publicly apologize to her. The Commissioner indicated that she had no authority to provide such relief in an appeal pursuant to Education Law §310 were she to decide such relief, in whole or in part, was warranted.

*** The Commissioner dismissed that aspect of the Kavanaugh’s appeal that concerned the placement of a memorandum in her file pertaining to the assignments she was given while on leave and, or, suspension as untimely, explaining that Kavanaugh “commenced this appeal approximately three months after the issuance of the memorandum and offers no legal excuse for the delay.”

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume55/d16897

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