NYC school principal’s appeal of a disciplinary action brought by the NYC Department of Education pursuant to Education Law §3020 sustained in part

NYC school principal’s appeal of a disciplinary action brought by the NYC Department of Education pursuant to Education Law §3020 sustained in part

Decisions of the Commissioner of Education, Decision #16,848

A NYC school principal [Principal] was found guilty of certain disciplinary charges by an arbitrator pursuant to Education Law §3020(3), appealed the arbitrator’s determination.

The Commissioner ruled that the Principal’s appeal must be sustained in part, noting that Education Law §3020, as amended by adding a new subdivision 3, the City School District of the City of New York and any employee organization representing employees or titles that are or were covered by any memorandum of agreement executed by the District and the Council of Supervisors and Administrators of the City of New York to negotiate agreements that modify or replace the procedures set forth in Education Law §§3020-a and 2590-j(7).  §3020(3). The Commissioner also noted that “the Commissioner shall review any appeals brought in accordance with such agreements.”

Pursuant to Education Law §3020(3), the Council and the District entered into an agreement [Agreement] establishing a modified disciplinary procedures that, to the extent relevant in this appeal, provided that “at the principal’s option, allegations of misconduct may be presented to an impartial arbitrator who will decide whether just cause exists for the proposed action.”

The agreement further provides that, at the request of the principal, the Chancellor of the New York City Department of Education [Chancellor] may review the arbitrator’s decision, “which review must be complete within 15 days of such decision.”  The Agreement provides that “[t]he employee shall be provided with written notice of the outcome of the Chancellor’s review.”  If the Chancellor implements the arbitrator’s decision against the principal, the principal may then apply to the Commissioner of Education for review of the arbitrator’s decision.

The arbitrator issued a final decision on June 20, 2015, finding Principal guilty of certain charges and specifications and imposed a penalty of suspension, such suspension to terminated effective July 1, 2014. 

Although the Principal wrote asking the Chancellor seeking a review the arbitrator’s decision within 15 days and providing her with a written notice of the outcome of the Chancellor’s review in timely fashion, the record indicates that Principal did not receive any response.  On August 19, 2015, the Principal commenced this appeal from the hearing officer’s determination, contending that the arbitrator’s determination was arbitrary, capricious, irrational, and unsupported by the evidence. 

The Commissioner said that she would not render an advisory opinion on an issue before it becomes justiciable, explaining that Article VII(J)(4)(a)(6) of the Agreement clearly provides that either the superintendent or the principal [1] may request a review of the arbitrator’s decision by the Chancellor and if such a request is timely made, [2] requires the Chancellor to complete such review within 15 days and which further requires the Chancellor to provide the employee with written notice of the outcome of the review.  

Thus, said the Commissioner, the Agreement contemplates that the Chancellor “will review the arbitrator's decision, and render a decision of her own.” 

Noting that Commissioner’s regulations implementing Education Law §3020(3) are set out in 8 NYCRR Part 281 and are consistent with provisions in the Agreement, the Commissioner said that record before her contained no such decision by the Chancellor. 

Although the Principal interpreted the Chancellor’s silence as a default, entitling her to appeal the hearing officer’s decision directly to the Commissioner, the Commissioner said that there was no authority for such an action. 

Accordingly, the Commissioner ordered “the Chancellor to review the [arbitrator’s] decision and provide [the Principal] with written notice of the outcome of such review within 15 days of the date of [the Commissioner’s] decision in accordance with Article VII(J)(4)(a)(6) of the Agreement.”

The Commissioner also noted that the Principal “retains the right to commence a new appeal to the Commissioner in the event that the Chancellor implements the hearing officer’s decision” within 15 days from the Principal’s receipt of written notice of the Chancellor’s decision in the event the Principal is unhappy with the Chancellor’s decision.

 

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16848

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Public Officers Law §36 provides for the removal of an individual from public office for self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust

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Libordi v Isaman, 2015 NY Slip Op 08552, Appellate Division, Fourth Department

Francis Libordi initiated an action in the Appellate Division, 4^th Department, pursuant §36 of the Public Officers Law in an effort to have Kenneth Isaman, a public officer, removed from his position of Town Supervisor of the Town of Hornellsville.*

Libordi alleged that Isaman had been involved in “self-dealing” and had a conflict of interest arising from his employment by an insurance agency that did business with the Town while serving as Town Supervisor. The Appellate Division said that Isaman "conclusively refuted those allegations” and that Libordi failed to present evidence to raise a triable issue of fact with respect to such allegations.

Libordi also alleged another conflict of interest in that Isaman voted at Town Board meetings in favor of appointing his wife to positions with the Town Board, and approving the salaries for her positions.

Noting "[R]emoval from office pursuant to Public Officers Law §36 is an extreme remedy reserved for officials engaged in self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust," the court said that [1] Isaman admitted that he should have abstained from those votes and [2] his failure to do so "does not constitute the type of conduct that would warrant removal from office."

The court then unanimously dismissed Libordi’s action.

* Any citizen resident in the jurisdiction, or the appropriate district attorney, may file an application seeking the removal of a public officer enumerated in §36 of the Public Officers Law with the Appellate Division in the appropriate judicial department. §36 requires that a copy of the application and the charges upon which the application is to be made must be served upon the officer at least 8 days prior to such filing. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08552.htm