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In the Matter of the Arbitration Between

June 15, 2012

IN THE MATTER OF THE ARBITRATION BETWEEN BOARD OF EDUCATION OF DUNDEE CENTRAL SCHOOL DISTRICT, PETITIONER-RESPONDENT, AND AND DOUGLAS COLEMAN, RESPONDENT-APPELLANT. (APPEAL NO. 1.)


Appeal from a judgment of the Supreme Court, Yates County (W. Patrick Falvey, A.J.), dated October 1, 2010.

Matter of Matter of Board of Educ. of Dundee Cent. School Dist. (Coleman)

Decided on June 15, 2012

Appellate Division, Fourth Department

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 Official Reports.

PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND SCONIERS, JJ.

The judgment granted in part the petition to vacate portions of the Hearing Officer's award.

It is hereby ORDERED that the judgment so appealed from is affirmed without costs.

Memorandum: Pursuant to Education Law § 3020-a, petitioner filed two disciplinary charges with 16 specifications against respondent, a tenured Social Studies teacher employed by petitioner. Respondent moved to dismiss six specifications on the ground that the conduct encompassed by those specifications had been the subject of counseling memoranda placed in respondent's personnel file. The memoranda warned respondent "of the serious consequences of any future incident[s] . . . ." It is undisputed that the specific conduct addressed in the memoranda did not recur before the disciplinary charges were filed. The Hearing Officer granted respondent's motion, concluding that "it would be both improper and unfair under the just cause protocol to permit and entertain formal charges, identical in nature to those at issue in the foregoing counseling memoranda, [because], by all accounts, the matters have not repeated." We note that two of the dismissed specifications concerned respondent's drawing of a cartoon of two "aliens" on the test of a student with a disability and writing the names of the student and her special education teacher next to the "aliens." Respondent was also accused of writing sexually inappropriate terms on a final exam in which he asked the students to define various vocabulary terms.

During the hearing, two specifications were withdrawn, and the Hearing Officer sustained six of the remaining specifications related to four incidents in which respondent threatened to kill a student; physically demonstrated a torture technique on a female student lying on respondent's desk; gave inappropriate and, in some instances, derogatory nicknames to students, despite previous warnings to refrain from such conduct; and ignored fair and consistent grading practices while exhibiting favoritism in grading practices. The Hearing Officer imposed a penalty of a six-month suspension without pay "but with continued medical insurance benefits."

Petitioner commenced this proceeding pursuant to Education Law § 3020-a (5) and CPLR 7511 challenging the penalty, the continuation of health benefits and the dismissal of the six specifications. Petitioner contended, inter alia, that the penalty of a six-month suspension was "excessively lenient"; that the Hearing Officer exceeded his authority under Education Law § 3020-a in ordering petitioner to continue to pay for respondent's health insurance during the period of suspension; and that the Hearing Officer's decision to dismiss the six specifications was irrational.

In appeal No. 1, respondent appeals from a judgment granting the petition in part (Matter of Board of Educ. of the Dundee Cent. School Dist. v Coleman, 29 Misc 3d 1204[A], 2010 NY Slip Op 51684[U], *4-*5). Supreme Court concluded, inter alia, that the Hearing Officer erred in dismissing the six specifications and lacked statutory authority to direct petitioner to pay for respondent's health insurance during the period of suspension (id. at *3-*4). The court therefore ordered respondent to reimburse petitioner for any such costs that had been previously paid by petitioner and remitted the matter for further consideration on the reinstated six specifications (id. at *4-*5). Inasmuch as the court was remitting the matter with respect to those specifications, it determined that it would be premature to address the issue of the appropriate penalty (id. at *4).

Upon remittal, the Hearing Officer sustained, in whole or in part, three of the six specifications, but he reimposed the same penalty, finding that respondent had previously been disciplined for the conduct at issue in those specifications through the counseling memoranda. Thus, the Hearing Officer concluded that "[i]t would be inherently unfair and totally contrary to the just cause protocol to issue further discipline to the [r]espondent for actions that were never repeated" (emphasis added).

Petitioner commenced a second proceeding pursuant to Education Law ยง 3020-a and CPLR 7511 to vacate the Hearing Officer's decision to the extent that the Hearing Officer determined that the penalty of a six-month suspension was appropriate and failed to comply with the prior judgment. Petitioner contended, inter alia, that the penalty imposed was "excessively lenient" and that the refusal to impose any additional penalty was irrational. In appeal No. 2, respondent appeals from a judgment granting the petition and determining that the Hearing Officer's decision regarding the penalty lacked a rational basis "due to his improper reliance on the premise that [petitioner] had to prove [respondent] repeated the misconduct that gave rise to the counseling memoranda before [the Hearing Officer] would consider [petitioner's] request for a ...


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