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MATTER FRANK J. MACCHIAROLA v. TEACHERS' RETIREMENT BOARD NEW YORK CITY ET AL. (07/10/80)

SUPREME COURT OF NEW YORK, SPECIAL TERM, KINGS COUNTY 1980.NY.43897 <http://www.versuslaw.com>; 430 N.Y.S.2d 528; 104 Misc. 2d 1131 July 10, 1980 IN THE MATTER OF FRANK J. MACCHIAROLA, PETITIONER,v.TEACHERS' RETIREMENT BOARD OF NEW YORK CITY ET AL., RESPONDENTS. IN THE MATTER OF RONALD DREW, PETITIONER, V. FRANK J. MACCHIAROLA, AS CHANCELLOR, ET AL., RESPONDENTS James R. Sandner and Paul H. Janis for Ronald Drew, petitioner-respondent. David M. Wirtz and Joyce Brauer for Frank J. Macchiarola, respondent-petitioner. Allen G. Schwartz, Corporation Counsel (David Jalosky of counsel), for Teachers' Retirement Board of New York City, respondent. Arthur S. Hirsch, J. Author: Hirsch


Arthur S. Hirsch, J.

Author: Hirsch

 OPINION OF THE COURT

In April, 1980, the media spotlight fell upon one Ronald Drew, a tenured teacher employed within the New York City school district for over 20 years. The teacher was arrested and indicted for selling obscene photographs depicting children involved in various forms of deviant sexual conduct and intercourse. The acts of which Mr. Drew is accused basically constitute the crime of "promoting an obscene sexual performance by a child."

The public outcry was extensive in reaction to the repugnant nature of the alleged crime. The teacher has been indicted, but has not yet been tried on the obscenity charges. The court recognizes the seriousness of these criminal charges and comprehends the public anger that has been engendered. If, after a criminal trial, a jury, from the evidence, finds Mr. Drew to be guilty as charged, it would indicate the defendant to be a person of low and depraved morals and one who, in the personal opinion of this court, should not be permitted to remain in the school system teaching our children.

But this court is not involved in the issues of his guilt or innocence, nor is it the intent of the court to prosecute or judge the acts for which Mr. Drew has been indicted. Our laws wisely presume innocence until proof at trial indicates guilt. To preserve the integrity and credibility of the law, this court must and will render a decision only on the issues before it and will do so dispassionately.

To comprehend the narrow question of law that is before the court as a result of two separate but related applications made by the parties regarding the dismissal and pension rights of the teacher, it is necessary to view the fact pattern preceding the submission of the applications and the history of the law involved.

THE FACTS

Charged with three counts of obscenity, Ronald Drew was indicted on March 28, 1980 by a Queens County Grand Jury. The indictment left the teacher vulnerable to the bringing of charges against him by his employer, the board of education, for conduct unbecoming a teacher, which conduct would render him unfit to properly perform his duties. On April 15, 1980, shortly after his indictment and before the board started disciplinary proceedings, Mr. Drew, for obvious reasons, submitted an application for leave of absence and terminal leave forms, in which he stated his intent to have terminal leave (or retirement) commenced as of May 2, 1980. The community superintendent of the community school board in the district in which Drew taught was advised of the indictment and the basis thereof. Notwithstanding that the case was pending and scheduled for criminal trial and that normally administrative agencies do not hold disciplinary trial proceedings until after a verdict in a criminal matter, the situation that arose in this instance provoked a different response. Here, the teacher's exigent desire for immediate retirement was in direct conflict with the pressing resolve of the chancellor and the board of education to prevent that retirement in order to retain jurisdiction of their employee for disciplinary purposes, with discharge and elimination of pension their desired goal.

The community board was urged by the chancellor to fulfill their legal obligations and commence proceedings under sections 2590-j and 3020-a of the Education Law, preferring charges against Drew. The board refused and made it known that at least half of the board was opposed to taking disciplinary actions against the indicted teacher. The chancellor, upon the refusal of the local board, superseded the local community board and appointed three trustees to replace the board for the purpose of administrating its affairs. The trustees acted, and on April 19, 1980, found probable cause for charges against Drew that he was guilty of conduct unbecoming a teacher. Drew was relieved of his classroom duties. On April 21, the hearing on charges against the tenured school district employee was begun and on that same day, the chancellor obtained a temporary restraining order in the first of the actions before this court, Matter of Macchiarola v Teachers' Retirement Bd. of N. Y. City, directing the retirement board not to accept Drew's application pending a determination of the matter on its merits. On May 5, 1980, the teacher sought to restrain the continuation of the disciplinary proceeding, but that relief was denied by Mr. Justice Gerald Held.

Despite much legal maneuvering on both sides to delay or expedite the disciplinary proceedings, according to the interests of the respective parties, a hearing was conducted before a hearing panel pursuant to Education Law, albeit under unusually hasty conditions, where, on May 14, 1980, the panel unanimously found that the chancellor's appointed trustees had sustained their burden of proof as to the disciplinary charges against Drew, and consequently, he was dismissed. The second of the applications before this court, Matter of Drew v Macchiarola, was initiated by Drew with the aforementioned motion for a temporary restraining order regarding the disciplinary proceeding. It is brought to challenge the legality and propriety of the action of the chancellor in his suspension of the community school board, charging violations in 10 separate causes of action, including impropriety in the composition and conduct of the panel finding probable cause and in the proceedings followed by the disciplinary panel.

A subsequent motion was made by the chancellor to add necessary parties to the Drew application. However, a concomitant motion was made by the teacher to discontinue that application without prejudice, pursuant to CPLR 3217 (subd [b]), on grounds that the essential nature of Drew's claim has changed subsequent to the culmination of the disciplinary hearing and his dismissal, and that he desires to re-evaluate his position, determining whether to continue with legal action in this forum or in another forum or whether to continue at all.

After hearing the parties and examining the papers submitted, the court concludes that the substantial rights of the board of education would not be impaired or prejudiced by the discontinuance (Schimansky v Moduline Inds., 79 Misc. 2d 888, affd 50 A.D.2d 634; Louis R. Shapiro, Inc. v Milspemes Corp., 20 A.D.2d 857) and therefore the petition by the teacher to withdraw his petition is granted, without prejudice and without costs.

All that is now before the court is the petition of the chancellor against the retirement board and Drew, where it is alleged that, pursuant to section 3019-a of the Education Law, respondent teacher must give his employer, the board of education, 30 days' notice of his intent to retire and that the teachers' retirement board was without power to accept the retirement application because of petitioner's failure to serve said notice. The cardinal question of law to be determined in ...


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