January 13, 2009
IN THE MATTER OF THE, PETITIONER OF LESLEIGH B. NORGROVE, PETITIONER,
THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, AND JOEL I. KLEIN, AS CHANCELLOR OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, RESPONDENTS.
The opinion of the court was delivered by: Joan A. Madden, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
In this Article 78 proceeding, petitioner, a tenured mathematics teacher of 28 years, seeks to annul the determination of respondents Board of Education of the City School District of the City of New York and Joel I. Klein (collectively the "Board of Education") which terminated his employment; petitioner also seeks retroactive reinstatement with full back salary, including interest, and all benefits. For the reasons delineated below, the petition is granted.
The following facts are not disputed unless otherwise noted. By letters dated December 20 and 21, 2006, the Board of Education advised petitioner that "a serious allegation has been made against you," and "[p]ending the outcome of the investigation . . . you are reassigned" to "Region 8 Human Resources." These letters were hand-delivered to petitioner at work and neither letter has an address for petitioner.
On May 11, 2007, while petitioner was working at the Region 8 Human Resources Center (the "Reassignment Center"), he received by hand-delivery from the Board of Education, a document entitled "Notice of Charges" ("First Notice"), which stated as follows:
In view of your unprofessional conduct while a teacher at Automotive High School, an Empowerment School located in Brooklyn during 2005-2006 and 2006-2007 school years, the following charges are being preferred:
1. Just Cause for disciplinary action under Education Law §3020-a;
2. Incompetent and inefficient service;
3. Conduct unbecoming Respondent's position, or conduct prejudicial tothe good order, efficiency or discipline of the service;
4. Substantial cause rendering Respondent unfit to perform his obligationsproperly to the service;
5. Violation of Chancellor's Regulation A-421;
6. Violation of Chancellor's Regulation A-420;
8. Neglect of duty; and
9. Just cause of termination.
By this notice you are hereby informed of the nature of the complaint. I will be preferring and filing the above charges. You will be informed of the procedures involved in the Trial of Charges.
The Board of Education submits affidavits of service that the First Notice was personally delivered to petitioner at work, and that it was also sent via certified and regular mail addressed to petitioner at "428 Worthman Avenue, Apt. No.1, Brooklyn, New York, 11207." Petitioner concedes he received the hand-delivered copy, but denies receipt of the certified and regular mailed copies. He explains that he last resided at Worthman Avenue more than five years ago, and since 2003, he had resided at his current address, 22 Covert Street, Apt #3R, Brooklyn, New York, 11207. While petitioner asserts that the Board of Education's Office of Salary Services lists his correct address at 22 Covert Street, the Board of Education asserts that it used the Worthman Avenue address "because that was the address BOE [Board of Education] had in its HRS [Human Resource System] for the petitioner in May of 2007."
On May 16, 2007, the Board of Education issued a "Notice of Determination of Probable Cause on Charges Brought Against Tenured School District Employee, Section 3020-a Education Law" ("Second Notice") addressed to petitioner at the Worthman Avenue address. The Second Notice advised that the Board of Education "has found there is probable cause on the attached charges preferred against you," and that "[w]ithin ten days of receipt of these charges, you must elect to request a hearing before an impartial hearing officer, or your will waive your right to such a hearing." The Second Notice also advised that if petitioner did "not request a hearing to contest these charges, the maximum penalty that will be imposed will be termination." The notice included a form for requesting a hearing and detailed twelve separate factual "Specifications," in which petitioner allegedly "rendered incompetent and inefficient service, engaged in verbal abuse and unprofessional conduct."*fn1
The Board of Education asserts that it sent the Second Notice to the Worthman Avenue address by certified and regular mail, and that the regular mailed copy was not returned and the certified mailed copy was returned "unclaimed."Petitioner asserts that he never received the Second Notice since it was not sent to his correct address, and as a result he could not have submitted a timely request for hearing.
On or about August 31, 2007, Michael Best, Esq., General Counsel to the Board of Education, sent petitioner a "Notice of Inquest" by certified and regular mail to the Worthman Avenue address. The letter advised as follows:
On May 16, 2007, you were served with Education law Section 3020-a charges by regular and certified mail. Under the law, you have ten days to request a hearing on the charges or waive your right to a hearing. We have confirmed your failure to request a hearing with the New York State Education Department. Since you have failed to request a hearing in a timely manner, your right to a hearing is deemed waived.
For informational purposes only, you are hereby advised that the charges preferred against you are now subject to disposition at the next regularly scheduled meeting of the Panel for Education Policy to be held on September 24, 2007 at 6:00 pm at the Tweed Court House, 52 Chambers Street, New York, NY 10007.
The Board of Education asserts that the regular mailed copy of the Notice of Inquest was not returned, and that the certified mail copy was returned "unclaimed." Petitioner asserts that he never received the Notice of Inquest since it was not sent to his correct address.
On October 12, 2007, Chancellor Joel I. Klein, Chairperson of the Panel for Education Policy, wrote to petitioner at the Worthman Avenue address, detailing the events that occurred since the charges were preferred against him on May 16, 2007, specifically the notices sent to him and his failure to respond and request a hearing.*fn2 The letter advised that "[i]n a memorandum dated August 30, 2007, the Office of Legal Services notified the Panel for Educational Policy (hereinafter the Panel') that at a trial on these charges, the evidence against you would have consisted of" testimony by specific individuals as to certain conduct. The letter listed the individuals' names, summarized the substance of their testimony, and stated that "[b]ased on the representations of the Office of Legal Services, the Panel makes the following findings of fact," which basically adopted the testimony as described. The letter listed the Panel's findings*fn3 and stated that the Panel concluded that "effective immediately, your services with the New York City Department of Education are terminated."
On October 18, 2007, petitioner received by hand delivery at the Reassignment Center, a letter from the Board of Education which stated in its entirety as follows: "Pursuant to the 3020-a disciplinary proceeding decision you are hereby terminated from your employment with the Department of Education effective October 18, 2007." This letter was hand-delivered to petitioner at work, but was addressed to him at the Worthman Avenue address. Petitioner states that when he received the termination letter, he directly informed his union representative, John Settle, that he had been terminated and that he had never received "formal charges" or "notice of his rights under the Education Law." Petitioner states that his union representative contacted the Board of Education to request a hearing, and that such request was denied.*fn4Petitioner subsequently filed a Notice of Claim on January 18, 2008, and asserts that "approximately thirty (30) days have elapsed since that time and Respondents have refused to adjust such claim."
On February 15, 2008, petitioner commenced the instant Article 78 proceeding, challenging the termination of his employment. Petitioner contends that the Board of Education failed to comply with the notice requirements of Education Law §3020, which provides that "[n]o person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in section 3020-a." Particularly, petitioner argues that he was not provided with the statutorily required "Notice of Charges" specifying the charges in detail, the penalty to be imposed and his rights under Education Law §3020-a. Petitioner asserts that he was provided only with a "Notice of the Nature of the Charges, incorrectly styled as Notice of Charges," that such document bears an incorrect address from over four years prior," and that he did not receive "anything by certified or registered mail with regard to any threatened disciplinary proceedings."
Petitioner contends that since he was not provided with notice as to his right to request a hearing on the charges, the Board of Education's "unilateral determination to terminate [his] employment without the due process hearing as provided for under Education Law §3020-a deprives [him] of property rights in his tenured position without due process of law, and is arbitrary, capricious, an abuse of discretion, a violation of lawful procedure, and a violation of the rights guaranteed to Petitioner under the due process clause of the New York State Constitution." Petitioner also contends that under Education Law §3020-a(2)(d), the Board of Education is statutorily obligated to consider whether his failure to timely request a hearing is "excused."
Education Law §3020 recognizes that a tenured teacher has a constitutionally protected property interest in his or her right to continued employment which cannot be deprived without due process. See Holt v. Board of Education of Webutuck Central School District, 52 NY2d 625 (1981); Abramovich v. Board of Education of Central School District No. 1 of the Towns of Brookhaven and Smithtown, 46 NY2d 450, cert den 444 US 845 (1979); Novillo v. Board of Education of Madison Central School District, 17 AD3d 907 (3rd Dept), lv app den 5 NY3d 714 (2005); Elmore v. Plainview-Old Bethpage Central School District, Board of Education, 273 AD2d 307 (2nd Dept 2000). The procedures for disciplining and terminating a tenured teacher are set forth in Education Law §3020-a. See Pollock v. Kiryas Joel Union Free School District, 52 AD3d 722 (2nd Dept 2008); Chawki v. New York City Department of Education, 39 AD3d 321 (1st Dept), lv app den 9 NY3d 810 (2007). Section 3020-a(2)(a) provides that if disciplinary charges are to be preferred [a] written statement specifying the charges in detail, the maximum penalty which will be imposed by the board if the employee does not request a hearing or that will be sought by the board if the employee is found guilty of the charges after a hearing and outlining the employee's rights under this section, shall be immediately forwarded to the employee by certified or registered mail, return receipt requested or by personal delivery to the employee.
Section 3020-a(2)(c) provides that "[w]ithin ten days of receipt of the statement of charges, the employee shall notify the clerk or secretary of the employing board in writing whether he or she desires a hearing on the charges." Section 3020-a(2)(d) provides that the "unexcused failure of the employee to notify the clerk or secretary of his or her desire for a hearing within ten days of the receipt of the charges shall be deemed a waiver of the right to a hearing," and "[i]f the employee waives his or her right to a hearing the employing board shall proceed, within fifteen days, by a vote of a majority of all members of such board, to determine the case and fix the penalty, if any, to be imposed."
Here, as a tenured teacher, petitioner was entitled to the procedural due process protections afforded under Education Law §3020-a, as detailed above. Specifically, after the charges were submitted in writing and filed with the Board of Education and the Board of Education determined that probable cause for the charges existed, the Board was required by statute to forward to petitioner immediately, via certified or registered mail, or personal delivery, a written statement specifying the charges in detail and outlining his rights, including his right to a hearing and the maximum penalty if he did not request a hearing within 10 days. See Education Law §3020-a(2)(a); Matter of Robert Pollock v. Kiryas Joel Union Free School, supra; Chawki v. New York City Department of Education, supra.
Contrary to the Board of Education's assertion, the First Notice that was personally delivered by hand to petitioner on May 11, 2007, did not satisfy the substantive requirements of section 3020-a(2)(a). That notice included a brief list of the charges which merely informed petitioner as to the "nature of the complaint," but it neither specified the details of the charges, nor advised petitioner of his right to a hearing and the maximum penalty if he did not request a hearing within 10 days, as required under section 3020-a(2)(a).
The Second Notice dated May 16, 2007 satisfied the substantive requirements of section 3020-a(2)(a) by providing the details as to twelve separate incidents, and advising petitioner of his right to request a hearing and that the failure to do so in ten days would result in his waiving that right with a maximum penalty of termination. That notice, however, was mailed to petitioner via certified and regular mail, at the Worthman Avenue address, where petitioner claims he has not resided since 2003.*fn5 For that reason, petitioner asserts that he never received the Second Notice and was denied due process in that he did not receive notice of the charges or his right to a hearing in compliance with Education Law §3020-a(2), since the certified mailing of Second Notice was sent to an outdated and incorrect address.
The Board of Education responds that it complied with due process in that: 1) the address at Worthman Avenue was the address the Board of Education had for petitioner in its Human Resource System; 2) petitioner was responsible for updating his address and the Board of Education's records indicate that he did not do so until after he was terminated*fn6; 3) the certified mailings of the Second Notice of May 16, 2007 and the August 31, 2007 Notice of Inquest were returned "unclaimed"; and 3) those notices were also sent to petitioner via regular mail and were not returned.
Although due process does not require actual notice before the government may extinguish a person's property interest, "due process requires the government to provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" Jones v. Flowers, 547 US 220, 226 (2006) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 US 306, 314 ); accord Harner v. County of Tioga, 5 NY3d 136, 140 (2005); Kennedy v. Mossafa, 100 NY2d 1, 9 (2003); Silverstein v. Minkin 49 NY2d 260, 263, rearg den 50 NY2d 929 (1980). In Jones v. Flowers, supra, the United States Supreme Court recently held that when the government becomes aware prior to the taking that its attempt at notice has failed, due process requires the government to "take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so." Id at 225.
Jones involved the certified mailing of a notice of tax sale to a property owner, that was returned unclaimed. The record indicated that the property owner moved out of the house when he and his wife separated, and seven years later, the Arkansas Commissioner of State Lands (the "Commissioner") sent him a certified letter as to the tax delinquency, at the address of the property; two years after that, another certified letter was sent to him at the same address, advising that his house would be sold if he did not pay his taxes. The certified letters were returned marked "unclaimed," and the Commissioner took no further steps to notify the property owner.
The United States Supreme Court concluded that "[t]he Commissioner's effort to provide notice to [the property owner] of an impending tax sale of his house was insufficient to satisfy due process given the circumstances of this case." Id at 239. The Court found that "[a]lthough the State may have made a reasonable calculation of how to reach [the property owner], it had good reason to suspect when the notice was returned that [the property owner] was no better off than if the notice had never been sent.' Deciding to take no further action is not what someone desirous of actually informing' [the property owner] would do; such a person would take further reasonable steps if any were available." Id at 230 (quoting Malone v. Robinson, 64 A2d 33, 37 [DC App 1992]). "What steps are reasonable in response to new information depends upon what the new information reveals." Id.
Analyzing the "new information," the Court in Jones reasoned that the return of the certified letters marked "unclaimed" meant either that the property owner still lived at the property but was not at home when the postal carrier called and did not retrieve the letter at the post office, or that the property owner no longer resided at that address. Id at 234. Based on that information, the Court determined that several additional reasonable steps at notice were available, including resending the notice by regular mail, posting the notice on the front door or addressing otherwise undeliverable mail to "occupant." Id at 234-235.
Although Jones involves an issue of due process and notice in the context of tax sale of real property, petitioner's protected property interest in his tenured teaching position and his right to due process are no less significant. Applying the holding in Jones, this court concludes that the Second Notice sent by certified mail was insufficient to satisfy due process, as once that notice notice was returned marked "unclaimed," the Board of Education became aware that its attempt at notice had failed, and due process required the Board of Education to take additional reasonable steps to notify petitioner.*fn7 Moreover, under the circumstances presented, additional reasonable and practicable steps were plainly available.
The Education Law permits service of the notice by two methods in the alternative, by certified or registered mail, or by personal delivery. Education Law §3020-a(2)(a). The Board of Education utilized both methods in serving petitioner with the various notices involved in this proceeding. Specifically, the December 2006 letters initially advising petitioner of his reassignment, and the final letter in October 2007 as to his termination, were hand delivered to petitioner at work, while all other notices in the interim period between those dates, regarding the charges, petitioner's right to a hearing, and his having waived that right, were sent via certified and regular mail to an outdated address.
As held in Jones, when the certified mail was returned unclaimed, the Board of Education became aware that the notice was ineffective, which triggered an obligation on the Board of Education's part to take additional steps to effect notice, by redelivering the Second Notice to petitioner personally at his place of work. Personal delivery at work was the one additional reasonable and practical step to effect notice, which was clearly available to the Board of Education, since the Board of Education employed petitioner at all times, had direct first-hand knowledge of his work location, and had previously effectuated service on petitioner by such means.
The Board of Education's additional regular mailing of the notice does not alter this conclusion, in view of the circumstances presented in this proceeding. Although the Court in Jones found that one additional reasonable step addressed to the possibility that the owner had moved, was to resend the notice by regular mail so that a signature was not required, in Jones the government had no knowledge of the owner's actual whereabouts. In sharp contrast, whereas here the Board of Education employed petitioner and knew exactly where he was working, once the certified mail was returned unclaimed, the one practicable and reasonable follow-up measure calculated to make actual notice likely, was personal delivery to petitioner at work.
The Board of Education argues that petitioner was obligated to update his address and that he did not do so until after he was terminated. The identical argument was raised and rejected in Jones, on the grounds that even if the property owner fails to comply with a statutory obligation to keep his address updated, the government cannot be relieved of its constitutional obligation to provide adequate notice. Id at 232. In any event, the Board of Education does not dispute petitioner's assertion that its Office of Salary Services lists his correct address at Covert Street.
Based on the foregoing, this court concludes that the Board of Education's determination to terminate petitioner's employment must be annulled for not complying with the requirements of due process, and petitioner is entitled to reinstatement with back salary and benefits.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the petition is granted, and respondents' determination terminating petitioner's employment is annulled, and respondents shall reinstate petitioner forthwith with full salary and benefits retroactive to November 26, 2007.*fn8
This constitutes the decision, order and judgment of the court.