Board of Education of the City School District of the City of New York,
1. Whether judges of the United States District Court for the Eastern District of New York and the United States Court of Appeals for the Second Circuit in dismissing petitioner’s lawsuit acted so irrationally as to undermine confidence in federal courts because the respondent prosecuted patently fraudulent, illegal, and malicious disciplinary charges against the petitioner in order to subvert an agreement to conciliate a disagreement about teaching methods.
2. Whether the lower courts erred in ruling that New York Education Law § 3020-a(5) does not deprive tenured teachers of equal protection of the law and due process of law in violation of the Constitution of the United States of America in that it limits the grounds for appealing decisions rendered in disciplinary hearings to grounds that apply to voluntary arbitrations and not the grounds found in common law and codified in the laws of New York State.
Board of Education of Carlsbad Municipal Schools v. Harrell, No. 20,856, 1994.NM.40160, ¶¶ 97, 98, 118 N.M. 470, 882 P.2d 511 (N.M. 1994) (VersusLaw)
Thompson v. City of Louisville, et al. 362 U. S. 199 (1960)
Vargas v. City of New York, Docket No. 03-7311, 2004.C02.0000835, ¶ 24, 377 F.3d 200 (2d Cir. 2004) (VersusLaw)
Education Law § 3020-a(3)(c)(ii)
Education Law § 3020-a(4)(b)
Education Law § 3020-a(5)
The judgment of the Second Circuit was entered on September 23, 2005. A petition for a rehearing en banc filed on October 3, 2005, was denied on February 23, 2005. The jurisdiction of this court is invoked under 28 U.S.C. § 1254(1). Since 28 U. S. C. § 2403(b) may apply, notification has been given to the New York Attorney General.
Paragraphs 1 to 3: As a result of changes in 1994, Education Law § 3020-a(5) violates the constitutional due process and equal protection rights of tenured teachers because it does not allow appeals of decisions made by disciplinary panels on the grounds given in Article 78 of the New York Civil Practice Law and Rules.
Paragraphs 4 to 6: I began teaching in 1984, and I was a tenured teacher at high schools operated by the DOE in Brooklyn. In September 1994, I was appointed to Edward R. Murrow High School, where I taught a course titled Regents Physics. At the new school my supervisors rated my lessons as unsatisfactory.1
Paragraph 7: On November 4, 1994, the UFT requested conciliation over the “approach that should be used in the teaching of physics” because “His [Roemer’s] observations have been critical because of a lack of developmental lesson plan” (Exhibit 13). This request was made pursuant to a provision in the collective bargaining agreement titled “Professional Conciliation” (Exhibit 15). On December 2, 1994, the DOE sent a letter to Mrs. Coppin accepting the request to conciliate “on behalf of the teachers at Edward R. Murrow” and saying,“A conciliator will be assigned if you are unable to get the parties to agree.” (Exhibit 14).2
Paragraph 8: On May 29, 1995, I filed a grievance according to procedures in the collective bargaining agreement against Mrs. Coppin and my supervisors for improperly threatening “to file charges against me for incompetence in a 3020a procedure in violation of our agreement to conciliate.” (Exhibit 19).
Paragraphs 9 to 15: I was given a teaching program in Regents Physics for the 1995–1996 school year.3 On January 16, 1996, Mr. Pappas told me “the Grievance Committee of the AdCom [Administrative Committee] has decided to remand this grievance (Case #13511) back to Professional Conciliation” (Exhibit 29). On February 29, 1996, the DOE assigned me to nonteaching duties.
Paragraphs 16 and 17: On November 20, 1996, the members of the board of the DOE voted publicly that there was probable cause for charges that were filed against me pursuant to Education Law § 3020-a. The charges were itemized in a 24-page document (Exhibit 32) that was unlawful and fraudulent because the document omitted any reference to the pending grievance and the agreement under Professional Conciliation. The specification of charges also omits any reference to a disciplinary letter (Exhibit 26) from Mrs. Coppin saying, “I will recommend that steps be taken to prefer charges against you.” This letter has a response written by me (Exhibit 28). Another common law element of fraud is the representation that I had undergone proper and standard remediation for poor teaching.
Paragraphs 18 to 23: Attorneys from the DOE and UFT selected Howard Edelman, Esq., to be the hearing officer.4 Mr. Edelman brokered a settlement of the charges according to which I gave up my permanent civil service appointment to Edward R. Murrow High School, accepted a transfer to another school, and agreed to be suspended without pay for two months (Exhibit 41).
Paragraphs 24 to 29: On June 13, 1997, Mr. Edelman violated my constitutional right to due process of law by conducting the first of seven hearings even though the case was settled.5 On June 1, 1998, a report (Exhibit 45) written by Mr. Edelman with the concurrence of another panelist said I should be terminated from my position with the DOE. The third panel member decided I should be transferred to another school with no other penalty (Exhibit 46).
Paragraphs 30 to 58: These paragraphs recount my efforts to vacate the decision terminating me through the appeal procedure set forth in Education Law § 3020-a and other lawsuits.
On June 7, 2004, I filed a motion asking the Second Circuit to disqualify the DOE’s attorneys for making misrepresentations to state courts. The DOE’s attorneys did not answer my allegations. The panel of judges assigned to rule on my appeal denied this motion on August 19, 2005.
The standard of review required in the Second Circuit for a district court’s dismissal on the pleadings is de novo.6 In this case, the Second Circuit began its order with the following quote from a prior opinion: "We may affirm [the dismissal] on any ground with support in the record, even if it was not the ground relied on by the District Court."
My interpretation of the order of the Second Circuit (Appendix E) is that it relied entirely upon the preclusive effect of the disciplinary hearing held under Education Law § 3020-a and not on the defective state court proceedings, which were relied upon by the district court.
On November 6, 2003, J. Gershon adopted J. Gold’s report (Appendix B). On November 26, 2003, Mr. Isley wrote a motion and memorandum of law asking for reconsideration pursuant to local rules of the District Court.
On December 15, 2003, I wrote a 4-page letter to J. Gershon telling her as respectfully as I could that she did not understand the case and that I wanted the opportunity to explain it to her in person.8 My request was refused.
On January 28, 2004, J. Gershon denied my motion for reconsideration.
On February 3, 2004, J. Gershon signed an order (Appendix C) admitting that she did not read the 28-page letter because it came across her desk after she denied my motion for reconsideration.
On March 12, 2004, I filed a notice of appeal, written by Mr. Isley, with the Second Circuit naming Mrs. Coppin and Mr. Pappas as defendants.
On April 15, 2004, I filed a judicial conduct complaint against J. Gold, which was dismissed on December 21, 2004 (Appendix D).
On September 23, 2005, the Second Circuit issued an order (Appendix E) that affirmed the District Court’s dismissal of my complaint.
On October 3, 2005, I filed a petition for a rehearing en banc. The Second Circuit denied the petition on dated February 23, 2006 (Appendix F).
I pled the allegation of fraud in accordance with Rule 9(b) of Fed. R. Civ. P. by listing the common law elements of the fraud.
It is apparent that the members of the board of the DOE were tricked into believing there was just cause to terminate me because the specification of charges made my case seem like a typical case of teacher incompetence. Why else would the members of the board of the DOE vote to spend about $100,000 to terminate me when the disagreement about teaching could have been resolved by the provisions of Professional Conciliation or the lawful grievance that I filed and that was still pending? The grievance I filed against Mrs. Coppin was a professional and appropriate response to the breach of the agreement under Professional Conciliation.
This was not a typical case of teacher incompetence except insofar that a principal of a school was unreceptive to an innovative approach to teaching that a teacher learned about in workshops and seminars. In the case at hand, the agreement under Professional Conciliation had the effect of protecting the DOE’s investment in workshops and seminars provided to its teachers to improve teaching methods.
I believe that Mrs. Coppin and Mr. Pappas caused the charges to be filed against me to avoid having my grievance against Mrs. Coppin resolved by the Chancellor’s office. The UFT initially refused to appeal the grievance to the Chancellor, as it has the right to do. However, Mr. Pappas did not uphold this decision (see Paragraphs 9 to 15 above), but did nothing to prevent the charges from being filed.
Not being an educator, Mr. Edelman did not understand that my supervisors and I disagreed only about teaching Regents Physics, not courses in general science. Many more students take general science classes than Regents Physics. At my former high school, for example, there was one class of Regents Physics and about 50 classes of general science. This is why Mrs. Coppin and I were able to settle our differences by my transferring to another school. It was understood that I would be teaching only general science.
The following quotation from Mr. Edelman’s decision shows that he was aware of Mrs. Coppin’s mistakes: "The Panel agrees with Respondent’s [Roemer’s] contention that those comments go beyond the Superintendent’s role as a conciliator. The directive, to “accept the principal’s position,” though couched as a recommendation, is not a conciliatory gesture but is rather the imposition of a requirement. Thus, we find, the conciliation process at Dr. Coppin’s level was not properly conducted."11
The only mention made of Professional Conciliation in the summation of the DOE’s attorney was vulgar:
Mr. Mazzariello: You know what he can do with the conciliation process. I would tell but Mr. Edelman would yell at me.
The Hearing Officer: I will.
Mr. Mazzariello: I could tell him what to do with it. I’d really like to tell him man to man, face to face on the sidewalk in the middle of the street what he could do with that conciliation process.12
Judging from his report, Mr. Edelman did not consider what motivated Mrs. Coppin to negatively interfere with the conciliation process and what motivated her to cause charges to be filed against me. Mr. Edelman was unaware of the fact that my grievance against Mrs. Coppin was unresolved and only considered whether or not my supervisors were sincere in their opinion that my students were not learning.
Education Law § 3020-a(4)(b) requires that boards of education implement the hearing officer’s decision. Since the settlement was negotiated in the pre-hearing conferences mandated by Education Law § 3020-a(3)(c)(ii) it was given to the DOE in lieu of the decision and the DOE was bound by law to implement it. In Abramovich v. Board of Education13, a teacher who was terminated after resuming teaching duties pursuant to a settlement of prior disciplinary charges was deemed to have waived his rights under Education Law § 3020-a.
Numerous high courts across the land have held that where arbitration is compulsory in nature a lack of meaningful judicial review under state law violates the constitutional guarantee of procedural due process. According to the New Mexico Supreme Court:
We agree that due process, together with separation of powers considerations, requires that parties to statutorily mandated arbitration be offered meaningful review of the arbitrator’s decision. In order for review of the arbitrator’s decision to be meaningful, the court must determine whether the litigant received a fair hearing before an impartial tribunal, whether the decision is supported by substantial evidence, and whether the decision is in accordance with law. The provision…limiting judicial review of the arbitrator’s decisions to cases “where the decision was procured by corruption, fraud, deception or collusion” does not permit meaningful review of the arbitrator’s decision by the court. We therefore strike this provision as a violation of due process of law and as an unconstitutional delegation of judicial power.******The scope of review constitutionally required for compulsory arbitration is the review required for administrative adjudications.15
The forgoing is in accord with the Supreme Court of Alaska:
Non-probationary or non-provisional civil servants in New York are allowed an Article 78 review when they are dismissed after an administrative law judge (not just a labor arbitrator) makes an arbitrary and capricious decision or one not supported by substantial evidence. An Article 78 review is a codification of a common law right.
The petition for a writ of certiorari should be granted because this case is more demanding of judicial supervision than Thompson v. Louisville.17 In this case, Thompson was convicted of “loitering and disorderly conduct” with no evidence supporting the charge. The Supreme Court reversed the conviction upon certiorari to the City Police Court of Louisville. In the present case, the charges against me were fraudulent and the court affirming my termination as a public school teacher is the Second Circuit.