Appeal of LING LING CHOU with respect to a disciplinary proceeding brought by the New York City Department of Education, Community School District 1, pursuant to Education Law §3020.

Decision No. 16,848

(November 10, 2015)

Beldock Levine & Hoffman, LLP, attorneys for petitioner, Myron Beldock, Esq., of counsel

Zachary A. Carter, Esq., Corporation Counsel, attorney for respondent, Joseph D. Lockinger, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from an arbitrator’s decision, rendered pursuant to Education Law §3020(3), to suspend her as principal of P.S. 184M without pay.  The appeal must be sustained in part.

In January 2000, the New York State Legislature amended Education Law §3020 by adding a new subdivision three, which authorizes the City School District of the City of New York (“District”) and any employee organization representing employees or titles that are or were covered by any memorandum of agreement executed by the District and the Council of Supervisors and Administrators of the City of New York (the “Council”), on or after December 1, 1999, to negotiate agreements that modify or replace the procedures set forth in Education Law §§3020-a and 2590-j(7).  It further provides that the Commissioner shall review any appeals brought in accordance with such agreements.

Pursuant to Education Law §3020(3), the Council and the District entered into an agreement providing for modified disciplinary procedures (the “Agreement”).  For allegations of misconduct with respect to principals tenured as of July 1, 2000, the parties, in Article VII(J)(4)(a) of the Agreement, established modified disciplinary procedures.[1]  Specifically, the Agreement provides that at the principal’s option, allegations of misconduct may be presented to an impartial arbitrator who will decide whether just cause exists for the proposed action.  Thereafter, at the request of the principal, the Chancellor may review the arbitrator’s decision, which review must be complete within 15 days of such decision.  The Agreement provides that “[t]he employee shall be provided with written notice of the outcome of the Chancellor’s review.”  If the Chancellor implements the arbitrator’s decision against the principal, the principal may then apply to the Commissioner for review of the arbitrator’s decision.

Pursuant to the Agreement, a written notice of charges and specifications of misconduct and proposed adverse action was prepared and served on petitioner, alleging that petitioner engaged in fraud, criminal conduct, misconduct, neglect of duty, and conduct unbecoming her profession, from the 2000-2001 school year through the 2011-2012 school year, including the respective summer terms for said school years.  Petitioner was charged with 21 specifications of misconduct including, but not limited to, allegations of financial wrongdoing, conflicts of interest, failure to supervise and properly train staff, and fraudulently submitting inaccurate student attendance data.  She was suspended without pay, effective July 19, 2011. 

A hearing officer (arbitrator) was appointed and a hearing was conducted on several dates in November and December 2012, January, March, April, June, September, and November 2013, and September 2014.  According to the record, on or about September 10, 2013, the original specifications were amended.  On November 14, 2013, petitioner stipulated to 13 of the 21 specifications, as amended, which relate to student attendance records and improper fundraising activities.[2]  On September 11, 2014, the District agreed to withdraw all charges relating to any criminal acts, fraud, and misrepresentation; four specifications alleging conflict of interest, improper receipt of compensation, and fraud as it relates to a Foreign Language Assistant Program (“FLAP”) grant; and one charge relating to Department of Youth and Community Development (“DYCD”).  The District did not present evidence with respect to specifications 1, 2, 3, 4, 6, 7, and 15, and the hearing officer dismissed specification 5, which related to alleged improper student enrollment practices. 

On September 22, 2014, the hearing officer issued an interim award, based on the withdrawal of and stipulation to certain charges, reinstating petitioner with full pay and benefits, effective October 1, 2014.  The hearing officer rendered a final decision on June 20, 2015, finding petitioner guilty of the charges alleged and stipulated to in specifications 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, and 21.  The hearing officer determined not to terminate petitioner’s employment, but imposed a penalty of suspension for the period described in the interim award, except that the effective date of reinstatement was modified from October 1, 2014, to July 1, 2014.  The hearing officer declined to award petitioner attorneys’ fees.

By letter dated July 6, 2015, petitioner sought review by the Chancellor of the hearing officer’s June 20, 2015 decision.  Pursuant to Article VII(J)(4)(a)(6) of the Agreement, the Chancellor was required to review the arbitrator’s decision within 15 days and provide written notice of the outcome of her review.  The record indicates that petitioner did not receive any response.  Thereafter, on August 19, 2015, petitioner commenced this appeal from the hearing officer’s determination.  Petitioner asserts that the hearing officer’s determination is arbitrary, capricious, irrational, and unsupported by the evidence.  Although not entirely clear, petitioner appears to challenge her suspension without pay, based on her assertion that certain charges were withdrawn and the sustained charges are frivolous.  Petitioner seeks an award of full back pay during her period of suspension and attorneys’ fees.

Initially, I note that the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).  Therefore, I lack jurisdiction to entertain petitioner’s claim for attorneys’ fees.

The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).  Article VII(J)(4)(a)(6) of the Agreement clearly provides that either the superintendent or the principal may request a review of the arbitrator’s decision by the Chancellor, which must be completed within 15 days of the arbitrator’s decision.  The Agreement requires that the Chancellor provide the employee with written notice of the outcome of the review.  Thus, the Agreement contemplates that the Chancellor will review the arbitrator's decision, and render a decision of her own.  

Commissioner’s regulations implementing Education Law §3020(3) are set forth at 8 NYCRR Part 281.  Section 281.5 specifically provides for an appeal to the Commissioner within 15 days from the appellant’s receipt of written notice of the Chancellor’s decision.  Similarly, §§281.6 and 281.7 of the Commissioner’s regulations respectively require the appellant and the respondent to state the date of the Chancellor’s decision.  Section 281.7(b)(5) also requires that the record include the Chancellor’s written decision.  The record before me contains no such decision.  While petitioner has interpreted the Chancellor’s silence as a default, entitling her to appeal the hearing officer’s decision directly to the Commissioner, there is no authority for such an action.  As noted above, both the Commissioner’s regulations and the Agreement contemplate review by the Chancellor and a written determination prior to an appeal to the Commissioner of Education (see Appeal of New York City Department of Education, 46 Ed Dept Rep 199, Decision No. 15,482).  The purpose of such requirement is to provide the Chancellor an opportunity to resolve the issues presented at the local level.  The Chancellor may reject or implement all or part of the hearing officer’s decision, thereby limiting the scope and facilitating the expedited review by the Commissioner required by Education Law §3020(3). 

Therefore, in accordance with the above and pursuant to my authority under Education Law §§301 and 308, I hereby order the Chancellor to review the hearing officer’s decision and provide petitioner with written notice of the outcome of such review within 15 days of the date of this decision in accordance with Article VII(J)(4)(a)(6) of the Agreement.  I note that petitioner retains the right to commence a new appeal to the Commissioner in the event that the Chancellor implements the hearing officer’s decision.  Pursuant to 8 NYCRR §281.5, any such appeal must be instituted within 15 days from petitioner’s receipt of written notice of the Chancellor’s decision.

In light of the foregoing disposition, I need not address the parties’ remaining contentions.[3]

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that Chancellor review the hearing officer’s decision and provide petitioner with written notice of the outcome of such review within 15 days of the date of this decision in accordance with Article VII(J)(4)(a)(6) of the Agreement.

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