Labor & Employment Law

Crystal Barton, a high school principal employed by the Board of Education of the City School District of the City of Buffalo (?board?), asked the Commissioner to remove Ralph R. Hernandez from office as a member of the board.

According to the Commissioner?s decision, Hernandez sent a letter "asking that [the Commissioner] initiate an investigation into certain allegations of employee misconduct and/or criminal activity by employees at McKinley High School, where Barton is employed as principal." Hernandez attached an anonymous letter he had received which made numerous allegation of wrongdoing on the part of Barton.

Subsequently, the board?s president advised the Commissioner that an investigation was underway within the district regarding the matters raised in the anonymous letter.

The Commissioner, while approving the ?in-district investigation,? advised the school district that the State Education Department would conduct its own investigation concerning one aspect of the case, allegations of improprieties relating to an English 11 Regents? examination.

Ultimately the State Education Department issued its report with respect to the English 11 examination, concluding that there was no credible evidence that students had been provided with the examination questions in advance, and closed the matter.

As to the district?s ?in-district? investigation, it concluded that allegations regarding theft of services and improper hiring of relatives as paid substitutes at McKinley were unfounded and the district?s Special Independent Investigator later issued his final report with respect to all other outstanding allegations, and ?found no actionable wrongdoing.? As a result of these several determinations, no disciplinary or other action was taken against Barton.

Barton, however, claimed that the letters to the Commissioner amounted to commencement of a disciplinary proceeding against her, and that her rights were violated because the disciplinary proceeding did not comply with Education Law §3020-a. She also alleged that Hernandez and the board exceeded their authority under Education Law §2554 by sending letters to the Commissioner and that Hernandez and other board members have made statements to the media which were critical of her. She asked the Commissioner to remove Hernandez from the board, and for a declaration that other board members have exceeded their authority under Education Law §2554.

The Commissioner dismissed Barton?s appeal for a number of technical reasons.

As to Hernandez, the Commissioner found that service of the notice of her appeal upon Hernandez was defective. In addition, the Commissioner said that the appeal had to be dismissed ?because the notice of petition is defective.? Commissioner?s regulation §277.1 requires that the notice of petition accompanying a removal application specifically advise the school officer that the application is being made for his or her removal from office, and prescribes the form of such notice. In this case, said the Commissioner, Barton failed to give such notice and, instead, used the notice prescribed under §275.11(a). A notice of petition that fails to contain the language required by §277.1(b) is fatally defective, and does not secure jurisdiction over the intended.

As to Barton?s request that the Commissioner ?Declare that the ongoing public appearances by members of the Board of Education are unbecoming the professional conduct of a Board of Education and/or members of a Board of Education in the State of New York and likewise exceed the authority granted to them by §2554 of the Education Law ...? he noted that ?It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310.?

As the ?relief? sought by Barton in this regard ?is exclusively declaratory in nature,? and Barton made no request that the Commissioner ?prescribe or enjoin any conduct on the part of the board? the Commissioner said that the appeal ?must be dismissed as to the board.?

Anonymous allegations, however, should not be ignored by an appointing authority. A judgment should be made as to the extent of any investigation required based on "reasonable suspicion." In the Shepard v Ward, 547 NYS2d 57, the Appellate said that suspicious behavior coupled with anonymous tips provided a basis for reasonable suspicion.

In Board of Educ. of City School Dist. of City of New York v. Mills, 250 A.D.2d 122, an anonymous letter was the genesis of disciplinary action taken against Andre Cadet, a physical education teacher. The letter alleged that Cadet was having an inappropriate relationship with a female student. An initial investigation revealed that Cadet had, in fact, formed a romantic relationship with the student.

During the course of the investigation Cadet refused to be interviewed by a confidential investigator for the SCI. Cadet was subpoenaed to appear at the office of the SCI to give testimony during a prehearing inquiry concerning his relationship with the student. Cadet appeared with his attorney and, prior to being questioned, was informed that he had an obligation to cooperate with the investigation, that he was being granted use immunity and that if he failed to answer questions at this stage of the proceeding, his refusal would be construed as a failure to cooperate and would subject him to dismissal.

In spite of having been granted use immunity, Cadet answered only pedigree and background questions, refusing to answer any questions regarding his relationship with the student. The Commissioner upheld the Hearing Panel's determination regarding Cadet's inappropriate relationship with the student and imposed a three years' suspension without pay as the penalty.

The full text of the Commissioner?s decision in the Barton case is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume48/d15832.htm

Full post as published by New York Public Personnel Law on September 25, 2008 (boomark / email).