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In re Application of Brower

Supreme Court, New York County

March 9, 2012

In the Matter of the Application of Bari A. Brower, Petitioner
v.
New York City Department of Education, Respondent

For Petitioner Noah Kinigstein Esq.

For Respondent Jeremy Huntone, Assistant Corporation Counsel.

LUCY BILLINGS, J.S.C.

This proceeding seeks to reverse respondent's unsatisfactory rating of petitioner's performance as a teacher, its termination of her probationary employment as a teacher, and its revocation of her license to teach first through sixth grades.

I. THE PETITION TO REVIEW THE TERMINATION OF PROBATIONARY EMPLOYMENT IS TIME-BARRED.

This court may not review respondent's termination of petitioner's probationary employment because more than four months elapsed between her receipt of respondent's notice dated July 16, 2007, terminating that employment, and her commencement of this proceeding. C.P.L.R. § 217(1); Kahn v. New York City Dept. of Educ., __ N.Y.3d __, N.Y.L.J. 1202542278544, at *2, 18-19 (Feb. 14, 2012); Anderson v. Klein, 50 A.D.3d 296 (1st Dep't 2008); Friedland v. New York City Dept. of Educ., 39 A.D.3d 395, 396 (1st Dep't 2007); Lipton v. New York City Bd. of Educ., 284 A.D.2d 140, 141 (1st Dep't 2001). Therefore the court proceeds to review respondent's further actions that petitioner challenges: an unsatisfactory rating for the 2006-2007 school year and the revocation of her teaching license. Kahn v. New York City Dept. of Educ., __ N.Y.3d __, N.Y.L.J. 1202542278544, at *9 n.3, 16.

II. RESPONDENT'S FAILURE TO PRODUCE A COMPLETE RECORD OF THE ADMINISTRATIVE PROCEEDINGS REQUIRES A REMAND.

Respondent's failure to preserve and provide a complete record of its administrative hearing on the unsatisfactory rating and revocation violated its own regulatory procedures. C.P.L.R. § 7803(3); N.Y.C. Dept. of Educ. Chancellor's Regulation C-31 § 3.2.4. Respondent's inability to produce a hearing transcript, in violation of lawful procedures, requires the court to annul respondent's determination and remand the proceeding for a new hearing to be conducted in compliance with those procedures. C.P.L.R. § 7804(e). E.g., Costantino v. Goord, 38 A.D.3d 657, 658 (2d Dep't 2007).

This result is especially warranted because the Interim Acting Deputy Chancellor, who made the final decision that both terminated petitioner's probation and rated her performance unsatisfactory, precipitating revocation of her license, did not attend the hearing. Based solely on the incomplete transcript, he nonetheless reversed the unanimous recommendation of the Chancellor's Committee, who heard the evidence, not to revoke petitioner's license. Thus the incomplete record not only precludes the court's adequate review, but also precluded the Interim Acting Deputy Chancellor from making a decision upon consideration of the full record. Lacking that adequate and necessary basis, his final administrative decision was arbitrary as well as in violation of the Chancellor's Regulations. C.P.L.R. § 7803(3); Goodwin v. Perales, 88 N.Y.2d 383, 392 (1996); Purdy v. Kreisberg, 47 N.Y.2d 354, 358 (1979); Pell v. Board of Educ., 34 N.Y.2d 222, 231 (1974); Soho Alliance v. New York State Liq. Auth., 32 A.D.3d 363 (1st Dep't 2006).

III. REVOCATION OF PETITIONER'S TEACHING LICENSE IS AN EXCESSIVE PENALTY.

Respondent imposed the severe penalty, beyond termination of petitioner's probation, of revoking her teaching license. The Interim Acting Deputy Chancellor imposed this penalty against the hearing committee's unanimous recommendation, after a single official observation following petitioner's mid-year transfer into a new grade and more difficult class, which had lacked a permanent teacher and been covered by various substitute teachers. Petitioner received a satisfactory rating after her only prior official observation, with her prior class.

Neither the determination July 16, 2007, by the Community Superintendent for petitioner's school district, nor the June 15, 2007, notice of the review and consideration of discontinuance, specified absenteeism as a basis for petitioner's unsatisfactory rating or for revoking her license or discontinuing her employment. Nor do the determinations by the Chancellor's Committee and the Interim Acting Deputy Chancellor refer to absenteeism. Insofar as the Interim Acting Deputy Chancellor based his decision on "file documents and testimony, " which may refer to absenteeism, such a belated and obscure reference hardly constitutes timely or adequate notice to petitioner of the charges against her. V. Answer Ex. 14.

Due process requires that petitioner "be given notice of the charges and evidence against [her] and an opportunity to appear to rebut the charges, " Strom v. Erie County Pistol Permit Dept., 6 A.D.3d 1110, 1111 (4th Dep't 2004); to prepare adequately to defend the charges; and "to submit proof in response." Pacicca v. Allesandro, 19 A.D.3d 500, 501 (2d Dep't 2005). See Wolfe v. Kelly, 79 A.D.3d 406, 410 (1st Dep't 2010); Mayo v. Personnel Review Bd. of Health & Hosps. Corp., 65 A.D.3d 470, 472-73 (1st Dep't 2009); Gordon v. LaCava, 203 A.D.2d 290, 291 (2d Dep't 1994); Benson v. Board of Educ. of Washingtonville Cent. School Dist., 183 A.D.2d 996, 997 (3d Dep't 1992). In particular:

In the context of an administrative hearing, the charges need to be "reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him... and to allow ...

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