Application of Lawrence Schriebman v. for an Order Pursuant to Article 75 & 78 of the CPLR & the Educ. Law Vacating in Part an Arbitration Award in Favor of The
| Decision Date | 29 March 2005 |
| Docket Number | Index Number 103280/04 |
| Citation | 2005 NY Slip Op 30594 (U) |
| Parties | Application of LAWRENCE SCHRIEBMAN, Petitioner, For an Order Pursuant to Article 75 and 78 of the CPLR and the Education Law Vacating In Part An Arbitration Award in Favor of THE NEW YORK CITY DEPARTMENT OF EDUCATION and THE CITY OF NEW YORK, Respondents. |
| Court | New York Supreme Court |
Decision, Order & Judgment
Petitioner Lawrence Schriebman ("Schriebman"), a former principal, now employed by the Department of Education of the City School District of New York ("BOE") as an assistant principal, commenced this proceeding, pursuant to CPLR section 7510, seeking a judgment vacating an arbitration award ("Award"). The Award found Schriebman guilty of disciplinary charges arising from his inappropriate behavior towards a student and inadequate performance as a principal. Specifically, the Award held that Schriebman had grabbed a student and pushed him into a wall; had received an unsatisfactory performance evaluation for the 2001-2002 school year; had failed to follow time and leave procedures; and had been excessively absent. Accordingly, the Award ordered Schriebman's removal as principal, and directed that he be reinstated to an assistant principal position.
Respondents oppose Schriebman's application and cross-move to dismiss. They also move to confirm the arbitral Award.
Schriebman was employed by BOE as the Principal of Junior High School 82X ("JHS 82X") in the Bronx, New York. He was appointed as principal in 1997, and received tenure.
Schriebman's school was designated in 1994 as a School Under Registration Review ("SURR") based on standardized test results. As a result, Schriebman's school came under supervision of the Chancellor's District in 1999 and was administratively closed in 2002.
In December of 1999, a BOE representative spoke to Schriebman regarding student suspensions at his school, the conversation focusing on his alleged "strict enforcement of school rules" and his statistics regarding suspensions which were "too high." Schriebman's February 2001 mid-year review was satisfactory, although he was advised that he could improve his performance in a few areas. Schriebman was again criticized about his student disciplinary practices in May 2001.
Effective May 21, 2001, Schriebman was removed from his position as principal by letter dated May 18, 2001. Schriebman was reassigned to the Chancellor's Central DistrictOffice in Brooklyn. Shortly thereafter, Schriebman received an unsatisfactory performance evaluation ("U-rating") for the 2000-2001 school year.
Schriebman was informed that he would remain in the District Office pending the investigation into allegations of misconduct based on, among other things, disciplinary incidents involving students at petitioner's school who claimed he used excessive force. Schriebman allegedly was not informed of specifics regarding the allegations against him prior to his removal.
The BOE's Office of Special Investigations ("OSI") conducted an investigation of the allegations against Schriebman. Schriebman was interviewed by the OSI investigator on October 23, 2001. On November 20, 2001, he was provided with a copy of a report issued by the OSI, dated October 29, 2001. According to Schriebman, the report and investigation by OSI on which it was based were "unfair and incomplete."
Schreibman denied the allegations to Dr. Sandra Kase, Superintendent of the Chancellor's District and provided her with additional information, purportedly seeking to disprove the allegations that had been raised against him. Schreibman was informed that the allegations were upheld, and that he "engaged in 'serious unprofessional conduct unbecoming aprincipal.'" In a series of written correspondence between Schreibman and the BOE, Schreibman alleged that he was retaliated against because of his "position on school safety" and his "refusal to accept a settlement of allegations" against him.
By letter dated June 19, 2002, Schreibman was advised by Chad Vignola, then General Counsel to the Chancellor of the BOE, that:
probable cause has been found against you on the charges preferred against you. In addition, a recommendation has been made by Dr. Sandra Kase, Superintendent of the Chancellor's District, that you be suspended pursuant to the provisions of Education Law [Sec.} 3020-a and the CSA contract.
The letter went on to say that Mr. Vignola had determined:
that the nature of the charges against you requires your immediate removal from your assigned duties. Therefore, in accordance with Education Law 3020-1, I hereby suspend you without pay effective as of the close of business, Friday, June 21, 2002, pending the hearing and determination of the charges preferred against you.
Schreibman received his second U-rating for the 2001-2002 school year.
The BOE issued charges against Schreibman on June 19, 2002. The charges involved allegations of corporal punishment, conduct unbecoming his profession and the U-rating for the 2000-2001 school year, and being insubordinate and excessively absent during the 2001-2002 school year.Schreibman filed a request for a hearing on June 22, 2002.
As a result of the June 19, 2002 letter from Chad Vignola, Schreibman began his 30-day removal period without pay pursuant to the provisions of the CSA contract which provides for the removal without pay or demotion during the pendency of charges against a principal. According to Schreibman, the CSA provision "contravenes the provisions of New York State Education Law which provide that suspension shall be with pay except in cases involving criminal conduct." Schreibman returned to work on July 22, 2002.
Dr. Sandra Kase informed Schreibman by letter dated September 3, 2002, that the aforementioned suspension without pay was extended pending the hearing regarding the charges preferred against him. The BOE began the arbitration process in September of 2002.
Schreibman was charged with several charges of corporal punishment, charges stemming from his U-rating for the 2000-2001 school year, abusing his discretion as principal during the 2000-2001 school year, failure to submit monthly time sheets during the 2001-2002 school year, and excessive absence during the 2001-2002 school year. Arthur A. Reigel ("Arbitrator") was appointed as arbitrator to oversee the arbitral process. Arbitrator was also appointed as the arbitrator in a related proceeding wherein Schreibman allegedthe BOE's violation of a provision of the Memorandum of Agreement ("MOA") signed on December 16, 1999, and entered into between the CSA and the BOE. The Arbitrator held in favor of the BOE's interpretation of the contract provision, and denied Schreibman payment during the arbitration of his misconduct charges at issue in the instant petition.
Schreibman submitted a motion to dismiss the charges prior to the hearing process. The motion to dismiss was based on provisions of the MOA. The Arbitrator, on October 12, 2002, denied the motion to dismiss on the grounds that the claims made were outside the scope of his authority. Specifically, the Arbitrator noted that interpretation of a section of the MOA, which petitioner alleged the BOE violated, must be resolved through the grievance process covered under the contract governing the parties, and is not a subject of arbitration. Schreibman subsequently filed a grievance alleging the BOE's violation of the MOA, which was denied after adjudication through the contract's grievance provision.
A pre-hearing conference was held on October 11, 2002. Thereafter, there was a series of hearings on the merits before the Arbitrator on October 28, November 15, 25, December 10, 12, 2002, January 27, 29, February 12, 13, May 9, 16, June 2, 4, September 23, October 15, 30, November 6, 10, and 13, 2003. On December 15, 2003, closing oral arguments werepresented.
At each of the hearings, which were open to the public, Schreibman was represented by counsel and attended the proceedings. He was represented by George Shebitz, Esq. and Steven Landis, Esq. of Shebitz, Berman & Cohen, P.C. Schreibman's counsel offered evidence and argument and examined and cross-examined witnesses as well as presented Schreibman's case. Schreibman testified on his own behalf. A transcript of the hearings was made.
Schreibman and the BOE attempted to settle this matter during the course of the proceedings, but were unable to effectuate a final settlement.
Thus, based on the evidence presented at the hearing, on February 16, 2004, a seventy-page Award ("Award") was issued. The Award, among other things, cites the charges and specifications preferred against petitioner, the pre-hearing stages of the 3020-a process, including the OSI investigation, and recounts the evidence presented by both parties at the nineteen-day hearing.
The BOE's witnesses included students in Schreibman's school who alleged that they had been subjected to inappropriate corporal punishment. Schreibman had testified on his own behalf and introduced evidence in an effort to rebut the charges against him. The Award concluded with afinding that Schreibman was guilty of specifications 4, 5(1a), 5(2a), 5(4a, b), 5(5a), 5(6a-c), 5(7a-c), 5(11), 5(12), 7, 8 and 9, and ordered him demoted to the position of assistant principal. Specifically, Schreibman was found guilty of corporal punishment- grabbing a student and pushing him into a wall; charges relating to petitioner's U-rating for the 2000-2001 school year1; failure to follow instructions for submitting monthly time sheets for the 2001-2002 school year, and excessive absenteeism for the 2001-2002 school year.
Schreibman was found not guilty of the remaining charges of corporal punishment; being ineffective at maintaining the Chancellor's minimum standards regarding school performance; ineffectively managing school resources; poor staff development; limiting staff feedback; poorly communicating with the...
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