Pursuant to Article 75 of the CPLR

Index No. 21557/98


Notice of Petition to Vacate Findings and Recommendations of the Panel Selected to Hear and Determine Disciplinary Proceedings under Section 3020-a of the Education Law


SUPREME COURT STATE OF NEW YORK
COUNTY OF KINGS


Application of DAVID ROEMER,


Petitioner


-against-


Board of Education of the City School District of the City of New York,


Respondent


For an Order Pursuant to Article 75 of the CPLR Vacating the Findings and Recommendations of the Panel Selected to Hear and Determine Proceedings Pursuant to Section 3020-a of the Education Law


PETITION BY:


Petitioner David Roemer


PLACE, DATE AND TIME OF HEARING:


Supreme Court State of New York, County of Kings, 360 Adams Street, New York on July 29, 1998- IAS Part to be Assigned at the Courthouse at 9:30 a.m.


RELIEF SOUGHT:


Order pursuant to CPLR 7511 Vacating Findings and Recommendations of Panel Selected to Hear and Determine Disciplinary Proceedings under Section 3020-a of the Education Law


PAPERS IN SUPPORT OF PETITION:


Petition of David Roemer verified June 24, 1998 and the exhibits annexed thereto


DEMAND FOR OPPOSING PAPERS:


Pursuant to CPLR Rule 2214(b) and 22 NYCRR Section 202.8(c), all answering affidavits and briefs must be served upon Joel Field, Esq., attorney for Petitioner at least seven (7) days prior to the date set for the hearing of this petition


DATE OF NOTICE OF PETITION:


JUNE 24, 1998


NOTICE OF PETITION ADDRESSED TO:


Board of Education of the City School district of the City of New York ,110 Livingston Street Brooklyn, New York


NOTICE OF PETITION SERVED BY:


Joel Field, Esq.


Joel Field
9th Floor
50 Main Street
White Plains, New York 10606


(914)997-7400


The petition of David Roemer, a resident of the County of Kings, State of New York respectfully shows and alleges to this Court as follows:


1. This is a proceeding brought under Article 75 of the CPLR and more specifically pursuant to CPLR 7511 for the purpose of vacating the findings and recommendations of the panel selected to hear and determine disciplinary charges filed against me by the respondent Board of education of the City School District of the City of New York ("Respondent") pursuant to the procedure mandated under Section 3020-a of the Education Law. I am the petitioner herein and in the Section 3020-a proceedings, the respondent.


2. I am seeking on the basis of several grounds to vacate the findings and recommendations of the statutory mandated panel:


  • I contend that the panel and more particularly the hearing officer in rendering a written decision more than thirty days after the last day of the final hearing exceeded his and/or its powers contrary to CPLR 7511(b)(iii);
  • I contend that the employer panel member Dorothy Petrucelli in concurring in the hearing officer's recommendation of termination prior to his rendering a written decision so imperfectly executed the award contrary to CPLR 7511(b)(iii) that a final and definite award with respect to my termination has not been made;
  • I contend that the panel, statutorily mandated to consider the disciplinary charges, in concluding that I had rendered incompetent teaching services without finding as a prerequisite for such a conclusion that a valid educational experience had not occurred within my classroom and when in fact learning had occurred, misconstrued controlling law and thereby rendered an arbitrary decision.

3. I was, until terminated by the Superintendent of Brooklyn High Schools on June 12, a tenured high school physics teacher. I was appointed in 1984 and acquired tenure after satisfactorily completing my probationary period in 1987. I was considered until assigned in 1994 to Edward R. Murrow High School a satisfactory and dedicated teacher.


4. Respondent Board of Education of the City School District of the City of New York is the governing body charged with the general control, management and responsibility of the schools of the City School District of the City of New York. Respondent's principal place of business is located in Kings County.


5. I was served in and about November 1996 with disciplinary charges, Exhibit A, brought pursuant to Section 3020-a of the Education Law. I was accused in the charges of having rendered incompetent and inefficient services in the 1994-95 and 1995-96 school years.


6. Upon information and belief the applicable test as set forth by decisions of the Commissioner of Education in determining whether a teacher has rendered incompetent service is whether a valid educational experience has occurred within the teacher's classroom or in other words whether learning has taken place. Upon further information and belief if a valid educational experience has occurred, learning has taken place, a teacher maybe unsatisfactory but is not incompetent.


7. The charges, the outgrowth of the disagreement between myself and the principal of Edward R. Murrow, Saul Bruckner ("Bruckner"), with respect to the method I was to use in teaching physics, pertained to teaching methodology.


8. As a result of my exercising my right under Section 3020-a to have the disciplinary charges heard by a three member panel, Exhibit B, a panel comprised of Howard Edelman as hearing officer, Doris Shaffer as employee panel member and Dorothy Petrucelli as employer panel member was selected to conduct hearings on the charges


9. Hearings at which the hearing officer presided were conducted on June 13, 1997, October 17, 1997, November 13 and 25, 1997, December 17, 1997, January 29, 1998 and February 12, 1998. The parties were permitted to file briefs postmarked by March 25th, after which an executive session of the panel was scheduled for April 6th. Upon information and belief the executive session was conducted as scheduled and no further sessions, either executive or otherwise were held.


10. Upon information and belief the final session of the proceeding was held no later than April 6, 1998 and therefore under Section 3020-a a decision had to be rendered by the hearing officer by no later than May 6, 1998.


11. On or about June 1st, the hearing officer completed an opinion consisting of findings and recommendation that I be terminated. Exhibit C. The hearing officer finding that I was culpable of the charges preferred against me, concluded that I should be dismissed from my position as a high school physics teacher. Both the employer and employee panel members concurred in the findings. The employee panel member however dissented from the conclusion that I be terminated.


12. Although the panel found that I was culpable of the charges that had been preferred against me - rendering incompetent and inefficient services in the 1994-95 and 1995-96 school years, it neither found nor concluded that my teaching services were such that a valid educational experience had not occurred in my classroom.


13. The employee panel member, finding that the charges as developed during the hearing, did not warrant discharge, concluded that I should return to teaching physics at Edward R. Murrow under a period of probation with the understanding that I comply with school policy. Alternatively the employee panel member would have me transfer to another high school. Exhibit D.


14. Upon information and belief the employer panel member concurred with the hearing officer's findings and conclusion that I be terminated on May 12, 1998, Exhibit E, almost three weeks before the hearing officer completed his opinion consisting of his findings and recommendations.


15. On or about June 5, 1998, the hearing officer's opinion together with the employee panel member's dissent as to penalty was received by the New York State Education Department, Exhibit F.


16. I received the hearing officer's opinion consisting of his findings and recommendations in hand on June 15th. The opinion, though sent by certified mail, return receipt requested, had been misdirected to Rockville Center and had been left in my mail box.


17. Section 3020-a of the Education law sets forth the powers of the hearing officer and the panel. Section 3020-a(4)(a) in pertinent part provides that:


The hearing officer shall render a written decision within thirty days of the last day of the final hearing or in the case of an expedited hearing within ten days of such expedited hearing and shall forthwith forward a copy thereof to the Commissioner of education who shall immediately forward copies of the decision to the employee and to the clerk or secretary of the employing board.


18. Upon information and belief the final hearing of the panel occurred on April 6th, the executive session. The hearing officer's powers extended to thirty days thereafter or to May 6th. The hearing officer in rendering his decision dated June Ist, rendered it more than thirty days after the final hearing and therefore in rendering it exceeded his powers.


19. Section 3020-a(4)(b) of the Education Law provides that the decision of the hearing officer shall be implemented by the employing board. Upon information and belief the decision of the split panel that I be terminated was not implemented by the respondent but rather by others.


20. Upon information and belief the implementation of a decision to terminate a pedagogue by a board of education under Section 3020-a must be at a public meeting as a board of education is only able to conduct its business through such a meeting.


21. Upon information and belief respondent did not conduct a public meeting after the hearing officer's decision had been rendered until June 17, or five days after the Brooklyn High School superintendent had terminated petitioner. Moreover upon information and belief the only executive session conducted by respondent prior to June 17 was June 3, prior to the time that the hearing officer rendered his decision. Respondent, having never implemented the decision of the hearing officer, my termination, the hearing officer's decision notwithstanding has been improper.


22.There has been no prior application for the relief requested herein.


WHEREFORE, petitioner David Roemer demands that judgment be entered vacating the findings and recommendation of the panel selected to hear and determine the disciplinary charges filed against petitioner by respondent Board of Education of the City School District of the City of New York and further that the respondent Board of Education of the City School District of the City of New York be directed to reinstate petitioner to his position as a tenured teacher of high school physics together with back pay and all other emoluments of employment from the date of his termination to the date of his reinstatement and that petitioner be granted such other and further relief as to the Court may be deemed to be just and proper in the circumstances.


Dated: White Plains, New York


June 24, 1998