Appeal of NADAV ZEIMER with respect to a disciplinary proceeding brought by the New York City Department of Education, pursuant to Education Law §3020.

Decision No. 17,357

(March 26, 2018)

Glass Krakower LLP, attorneys for petitioner, Jordan F. Harlow, Esq., of counsel

Zachary A. Carter, Esq., Corporation Counsel, attorney for respondent, Diana M. Murray, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from an arbitrator’s decision, rendered pursuant to Education Law §3020(3), to suspend him as principal of Harlem Renaissance High School 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”).[1]  For allegations of misconduct with respect to principals tenured as of July 1, 2000, Article VII(J)(4)(a) of 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.  Upon issuance of the arbitrator’s decision and at the request of the principal or community school district superintendent, the Chancellor shall review the arbitrator’s decision within 15 days.  The Agreement further provides that “[t]he employee shall be provided with written notice of the outcome of the Chancellor’s review.”[2]  If the Chancellor of the City School District of the City of New York (“Chancellor”) implements the arbitrator’s decision against the principal, the principal may then appeal 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.  This notice alleged that, during the 2015-2016 and 2016-2017 school years, petitioner engaged in neglect of duty; conduct unbecoming of his position; a violation of the by-laws, rules, and regulations of the Chancellor, DOE, school, and/or district; misconduct; and insubordination.  Petitioner was charged with nine specifications of misconduct including, but not limited to, allegations of wrongdoing, conflicts of interest, and making false representations.  He was suspended without pay, effective June 22, 2017. 

An arbitrator was appointed, and a hearing was conducted on several dates in August, September, and October 2017. 

On December 5, 2017, the arbitrator issued an opinion and award, sustaining specifications 1(1) and 1(4), and dismissing specifications 1(2), 1(3) and specifications 2 through 9 based on insufficient evidence.  The arbitrator determined that the appropriate penalty for the proven misconduct is suspension without pay for the period which petitioner had already served during the pendency of the proceeding.  The arbitrator further ordered petitioner reinstated, effective immediately.

By letter dated December 15, 2017, petitioner requested that the Chancellor review the arbitrator’s December 5, 2017 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 render a written decision.  There is no indication in the record that the Chancellor rendered such a decision.  Thereafter, on or about January 18, 2018, petitioner commenced this appeal from the arbitrator’s determination.  Petitioner asserts that, “subject to and without waiving [his] right to challenge the substantiated specifications in a later proceeding, to the extent that the Chancellor determines that [petitioner] should be granted some form of backpay, [petitioner] is not challenging the substantiated findings.”  Petitioner seeks an award of full back pay during his period of suspension.  In the alternative, petitioner requests that the matter be remanded to the arbitrator “for the appropriate penalty.”

I must first address a procedural issue.  Section 281.7(a) of the Commissioner’s regulations requires that the Chancellor and community school district superintendent prepare and serve a joint response, within 10 days from service of an appeal, and immediately transmit the record of prior proceedings to the State Education Department (“Department”).  The record indicates that petitioner served the instant appeal on January 18, 2018.  By letter dated February 6, 2018, my Office of Counsel informed the City of New York’s Office of Corporation Counsel (“Corporation Counsel”), that no response to petitioner’s appeal was filed within the time allotted and that the decision-making process would not be delayed.  Thereafter, by letter dated February 8, 2018, Corporation Counsel requested an extension of time in which to respond to the appeal.  By letter dated February 8, 2018, my Office of Counsel denied such request and advised that an application could be made to serve a late response in the appeal, but that the decision-making process would not be delayed until such papers were received.  By facsimile letter dated February 22, 2018, corporation counsel submitted a “late response” on behalf of “Appellee Board of Education of the City School District of the City of New York, operating as the New York City Department of Education.”[3]  Although petitioner’s counsel is copied on the “late response” letter by facsimile, no affidavit of service is attached.  Moreover, no record of proceedings was transmitted to the Department as required by §281.7(a).  Based on the foregoing, I decline to accept the late response.

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).  The Agreement provides that either the community school district 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.  If so requested, the Agreement requires the Chancellor to provide a written decision of the outcome of the review.  Thus, the Agreement contemplates that the Chancellor will review the arbitrator’s decision and render a written decision upholding or denying the arbitrator’s decision and explaining her reasoning. 

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 identify 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.  Indeed, other than respondent’s three-page response and a copy of the arbitrator’s decision, the record contains no record of proceedings below.  To the extent petitioner has interpreted the Chancellor’s silence as a default, entitling him to appeal the arbitrator’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 Chou, 55 Ed Dept Rep, Decision No. 16,848; Appeal of New York City Department of Education, 46 id. 199, Decision No. 15,482).  As noted in Appeal of Chou, (55 Ed Dept Rep, Decision No. 16,848), in which respondent was a party, 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 arbitrator’s decision, thereby limiting the scope and facilitating the expedited review by the Commissioner required by Education Law §3020(3).  Respondent is reminded of its obligation to ensure that this requirement – review by the Chancellor and a written determination – is met prior to an appeal to the Commissioner in all future proceedings.

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 arbitrator’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 arbitrator’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.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the Chancellor of the City School District of the City of New York review the arbitrator’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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