Brady v. A Certain Teacher
| Decision Date | 05 September 1995 |
| Citation | 166 Misc.2d 566,632 N.Y.S.2d 418 |
| Parties | , 104 Ed. Law Rep. 459 Brian BRADY, et al., Individually and as Members of the Board of Education of Patchogue-Medford Union Free School District, et al., Plaintiffs, v. A CERTAIN TEACHER, et al., Defendants. |
| Court | New York Supreme Court |
Wasserman & Steen (Lewis M. Wasserman, of counsel), Patchogue, for Plaintiffs.
James R. Sandner (Paul H. Janis and Sherry B. Bokser, of counsel), New York City, for Defendants.
The plaintiff, Patchogue-Medford Union Free School District, has commenced this action seeking judgment declaring that sections 3012 and 3020-a of the Education Law violate Article VIII, Section 1 of the New York State Constitution insofar as they require a school board to pay salary, benefits and other emoluments of employment to a teacher who has been suspended and who is rendering no services during the pendency of disciplinary proceedings; further declaring that section 3015 of the Education Law requires that when a Board of Education suspends a teacher during the pendency of a disciplinary proceeding pursuant to section 3020-a of the Education Law and the teacher refuses or fails to render meaningful service that the district shall withhold payment of salary, benefits and emoluments; further declaring that to the extent that sections 3012 and 3020-a of the Education Law mandate payment of salary to teachers who are suspended during the pendency of disciplinary proceedings and who have failed to perform contracted services under a collective bargaining agreement, such mandate is violative of the Contract Clause, Article I, section 10 of the United States Constitution; further declaring that sections 3012 and 3020-a of the Education Law violate Article XI, Section 1 of the New York State Constitution in that the burden of proof set forth upon boards of education which seek to terminate employment of tenured teachers limits the right of students to obtain public education and instruction; and further declaring that the plaintiff is entitled to recover from the teacher monies paid to the teacher for salary, benefits and other emoluments for the period March 31, 1991 to the date of the second amended complaint (May 4, 1995) upon the theory of unjust enrichment.
The teacher in question has been employed by the school district since September 1971 as a secondary school health teacher. He is certified to teach both secondary biological services and health and has taught at both the middle and high schools during his employment in the district. The district commenced a disciplinary proceeding against the teacher by a Statement of Charges dated December 19, 1994. This action was commenced by service of a Summons and Complaint dated March 1, 1995. A Second Amended Complaint, dated May 4, 1995, has been served. The charges relate to conduct as early as March 1st, 1991, and as late as November 15th, 1994. A substantial portion of the charges relate to the quality of the education provided by the defendant to the students of the Patchogue school district during a period of some three years. The charges also allege conduct which, if established, might constitute insubordination and also assert that on numerous occasions the defendant reported late for work and/or failed to appear for work.
The teacher continued to teach from 1971 until June of 1994, when he was removed from the classroom because, in the words of the Superintendent of Schools, "I determined it was in the students' best interest that he be kept away from them". Paragraphs 101 through and including 115 of the Statement of Charges refer to conduct allegedly occurring from March through June of 1994. The conduct alleged generally refers to inappropriate comments made by the teacher and claims that the teacher was unable to work because of family illness and personal illness. After being removed from the classroom in June of 1994, and until the charges were preferred in December of 1994, the teacher was assigned to work in the District Office, and on June 8, 1994 was informed by the Superintendent that he would be assigning the teacher to perform office work related to the health education curriculum.
On June 8, 1994 the teacher was provided with a high school health text book, the New York State Syllabus for Health Education and Curriculum Forms which had been used in the past by Frank J. DiMartino who was employed as the Academic Director at the Patchogue-Medford Union Free School District. The teacher was asked to rewrite and update the district's high school health education curriculum. One can only speculate as to why a copy of the curriculum which the teacher had been asked to update and rewrite was not provided to him at that time. On June 13, 1994 the teacher asked Mr. DiMartino for a copy of the video listings from the district's curriculum material center and a copy of the district's recently revised health seven curriculum. It took two days for those materials to be provided to the teacher. When the teacher showed Mr. DiMartino possible outlines, he was told that they were deficient and should reflect "more substantive work product". On June 17th Mr. DiMartino determined the materials provided were not acceptable, were sketchy and incomplete, and at that time Mr. DiMartino concluded that the teacher had refused to perform services for the district for which he was being paid.
Notwithstanding this conclusion, when school started in September 1994 Edward Cinelli, the new academic director for the plaintiff school district, met with the teacher and directed him once again to rewrite and update the high school curriculum for health and this time added the middle school health curriculum, thereby asking the teacher to create one integrated curriculum document. This time the teacher was provided with the Health Syllabus for grades K-12, the 1990 Health Curriculum for grades 10 through 12, the Health Education Department Handbook, and the 1987 Health Education Curriculum from BOCES for grades 7 through 12. After some five months of the teacher working on the curriculum, meetings with Mr. Cinelli, comments, recommendations and criticisms by Mr. Cinelli, Mr. Cinelli found the efforts of the teacher to be inadequate. If any writings were provided to the teacher as to the quality of his performance during this period, none have been provided to the Court. Mr. Cinelli concludes his affidavit by asserting that the teacher had failed to produce dozens and dozens of lesson plans, as required by his December 16, 1994 directive. On March 1, 1995 the Superintendent ordered the teacher to leave the district office, where the teacher was working on the health curriculum, and not to report to work.
In passing it is also necessary to note that notwithstanding the contention of the district that it is entitled to withhold pay because of the refusal of the teacher to perform work between June of 1994 and March of 1995, the rather detailed Statement of Charges fails to contain a single allegation as to job performance relative to that time frame.
Once a public school teacher has obtained tenure the individual cannot be deprived of the constitutionally protected property interest in the right to continued employment and compensation without due process of law (see Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 [1985]; Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 [1972]; Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 [1972]. Similarly, it has been consistently held that compensation is a matter of such substantive right on the part of the teacher that it cannot be taken away except pursuant to explicit statutory or collective bargaining authorization, and that the pay of a teacher suspended pursuant to section 3020-a[2] of the Education Law pending hearing and determination of disciplinary charges may not be withheld (see e.g. Matter of Winter v. Board of Educ. for Rhinebeck Cent. Sch. Dist., 79 N.Y.2d 1, 580 N.Y.S.2d 134, 588 N.E.2d 32 [1992]; Matter of Derle v. North Bellmore Un. Free Sch. Dist., 77 N.Y.2d 483, 568 N.Y.S.2d 888, 571 N.E.2d 58 [1991]; Matter of Adlerstein v. Board of Educ. of City of New York, 64 N.Y.2d 90, 485 N.Y.S.2d 1, 474 N.E.2d 209 [1984]; Matter of Board of Educ. of City of Rochester v. Nyquist, 48 N.Y.2d 97, 421 N.Y.S.2d 853, 397 N.E.2d 365 [1979]; Matter of Jerry v. Board of Educ. of City of Syracuse, 35 N.Y.2d 534, 364 N.Y.S.2d 440, 324 N.E.2d 106 [1974].
This case law history is reflected in section 3020-a[2][b] of the Education Law, as amended effective August 25, 1994, which governs disciplinary procedures against persons enjoying the benefits of tenure and which provides
the employee may be suspended pending a hearing on the charges and the final determination thereof. The suspension shall be with pay, except the employee may be suspended without pay if the employee has entered a guilty plea to or has been convicted of a felony crime concerning the criminal sale or possession of a controlled substance ... or a felony crime involving the physical or sexual abuse of a minor or student.
(McKinney's Cons. Laws of NY, Book 16, Education Law § 3020-a[2][b] ).
Having set forth the statute challenged, and the case law which such statute codifies, the Court shall now address the constitutional challenges. At the outset, the Court observes that there are several principles of statutory construction and interpretation as pertain to constitutional challenges which are applicable here. First, that "[t]he courts should not strike down a statute as unconstitutional unless such statute clearly violates the Constitution" (McKinney's Cons Laws of NY, Book 1, Statutes § 150[a]. Second, that "[s]tatutes are presumed valid and constitutional and the one challenging the statute has the burden of showing to the contrary" (McKinney's Statutes § 150[b]....
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