Pursuant to Article 78 of CPLR

SUPREME COURT STATE OF NEW YORK
COUNTY OF KINGS


Index No. 28658/00


Petition to Vacate an Order and Decision of the Public Employment Relations Board and Reinstate Petitioner to His Position As Teacher at Edward R. Murrow High School




Application of DAVID ROEMER,


Petitioner,


- against -


PUBLIC EMPLOYMENT RELATIONS BOARD, UNITED FEDERATION OF TEACHERS, and BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK


Respondents.


For a Judgment under Article 78 of the Civil Practice Law and Rules to Vacate an Order and Decision of the Public Employment Relations Board and Reinstate the Petitioner to His Position as a Teacher at Edward R. Murrow High School.




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 proceeding is being brought under Article 78 of the Civil Practice Law and Rules pursuant to §213 of Article 14 of the Civil Service Act. I am asking this court to reverse or modify a final order of the Public Employment Relations Board ("PERB") dated August 7, 2000. Article 14 is known as the Public Employees' Fair Employment Act and the Taylor Law. Exhibit 1 is a copy of the order.
  2. On the 13th day of April, 2000, I filed an improper practice charge, annexed as Exhibit 2, against my former union, the United Federation of Teachers ("UFT"), alleging that the UFT breached its duty of fair representation in violation of §209-a.2(c) of the Taylor Law.
  3. My allegation is that the UFT failed to process a claim that the Board of Education of the City School District of the City of New York ("Board of Education") breached the collective bargaining agreement. As a result, in accordance with §209-a.3 of the Taylor Law, the Board of Education is a respondent in these proceedings.
  4. Upon information and belief, the UFT and the Board of Education conspired to file false disciplinary charges against me under §3020-a of Education Law. As a result of their unlawful actions, I was assigned to non-teaching duties on the 29th day of February, 1996, and was terminated on the 12th day of June, 1998.
  5. I am asking this court to reinstate me to my position as a tenured teacher at Edward R. Murrow High School with all back pay and the reimbursement of all the legal expenses I incurred from the time charges were filed against me.
  6. In September 1984, I began teaching at Midwood High School in Brooklyn, and became a tenured teacher of physics in September 1987. I employed a method of teaching, common in New York City public schools, called the developmental lesson.
  7. In February 1990, I was excessed and transferred to Erasmus Hall High School in Brooklyn. There I adopted a method for teaching science that is different from the development lesson and can be called a "constructivist" or "learner-centered" approach to teaching.
  8. The Board of Education and the UFT, to improve instruction in public schools and to protect the public's investment in training teachers, included a conciliation process in the collective bargaining agreement titled Professional Conciliation (Article 24). Exhibit 3 is a copy of Article 24.
  9. The purpose of Article 24 is to encourage the professional involvement of teachers in educational issues and to provide a means for resolving professional differences of opinion that can arise between teachers and supervisors about pedagogical and instructional strategy, technique, and methodology.
  10. My approach to teaching science is to distribute to my class a handout that describes the concepts I want the students to understand in the day's lesson. The handouts include questions, problems and activities that the students work on in class. I consider this approach innovative and beneficial to children. I have shared my ideas about teaching science with my colleagues by giving five workshops over the years at various professional meetings.
  11. In September 1994, I transferred to Edward R. Murrow High School in Brooklyn and was given four classes in Regents Physics to teach. Ira Cohen, the Assistant Principal of Supervision of the Science Department, observed a physics lesson I gave on the 22nd day of September, 1994. Exhibit 4 is a copy of the handout I distributed to the class for that day's lesson.
  12. On the 26th day of September, 1994, Mr. Cohen, after discussing the lesson with me in the customary post-observation conference, gave me a written observation report, which is annexed as Exhibit 5. While Mr. Cohen's comments and the observation report were critical, the report did not state that the lesson was "satisfactory" or "unsatisfactory".
  13. On 29th day of September, 1994, Saul Bruckner, the Principal, observed a physics lesson I gave. It was a cooperative learning lesson which required students, working in groups, to answer questions posed on the handout. Exhibit 6 is a copy of the handout I distributed for that day's lesson.
  14. On or about the 5th day of October, 1994, Mr. Bruckner, after a critical post-observation conference, wrote a negative observation report. However, the lesson was not rated as unsatisfactory. Exhibit 7 is a copy of the observation report.
  15. On the 13th day of October, 1994, Mr. Cohen observed another lesson. The observation report that followed was critical but the lesson was not rated as being unsatisfactory. On the 29th day of October, 1994, Mr. Bruckner observed another lesson and rated the lesson as unsatisfactory.
  16. On the 18th day of October, 1994, I met with Frank Volpicella, District Representative for the UFT and a teacher at another Brooklyn high school, and discussed the negative evaluations that I was getting. Mr. Volpicella told me that I had a contractual right to use the method of teaching that I deemed best for the children. Mr. Volpicella told me that if my supervisors were demanding that I teach a developmental lesson, or any other type of lesson, I could file a grievance under the collective bargaining agreement.
  17. The gravamen of the complaints about my lessons was that there was a lack of student learning. Mr. Cohen and Mr. Bruckner attributed the lack of learning to poor planning.
  18. On or about the 28th day of October, 1994, I gave William Forster, the Chapter Chairperson of the UFT and a science teacher at Edward R. Murrow High School, an 8-page document, annexed as Exhibit 8, which explained my teaching methods and argued that Mr. Bruckner and Mr. Cohen were not evaluating my lessons in a pedagogically sound manner. Quoting from the observation reports, I suggested that Mr. Cohen and Mr. Bruckner were biased against learner-centered instruction. The letter to Mr. Forster included the first two observation reports and the handouts that I distributed to the class.
  19. On or about the 28th day of October, 1994, Mr. Forster and I met with Mr. Bruckner. Mr. Forster said, concerning the negative evaluations of my lessons, that there appeared to be a disagreement about teaching philosophy. Mr. Forster suggested that the disagreement be resolved through Article 24 of the collective bargaining agreement. We waited while Mr. Bruckner read Article 24. When Mr. Bruckner finished he showed his agreement to conciliate by saying, "The ball is in your court."
  20. On or about the 31st day of October, 1994, Mr. Forster submitted a formal request for conciliation to Mr. Volpicella. Exhibit 9 is a copy of this letter.
  21. On or about the 4th day of November, 1994, Howard Solomon, an employee of the UFT, submitted a request, annexed as Exhibit 10, to the Board of Education to conciliate under Article 24 the approach that I should use in teaching physics. The request stated that "He (Roemer) has always taught Physics using a 'constructivist' methodology from workshops and seminars given by Supt. Coppin's office. He wants to continue using this approach. Mr. Bruckner and Mr. Cohen have directed him to use a 'developmental' approach to teaching physics. His observations have been critical because of his lack of a developmental lesson plan."
  22. On or about the 2nd day of December, 1994, Joseph Lo Shiavo, Director of Related Staff Services of the Office of the Chancellor, sent a letter to the Superintendent of Brooklyn High Schools, Joyce Coppin, advising her that the Board of Education had accepted the request for conciliation. The letter, which is annexed as Exhibit 11, says, "The agreed upon solution should be described in detail and signed by both parties. This written document should define the area(s) of difference, identify what steps will be or have been taken to resolve the differences, and include an enforcement paragraph as outlined in Article 24." Mr. Lo Shiavo also indicated that he would be supervising the conciliation process.
  23. On or about the 6th day of December, 1994, Mr. Bruckner observed a lesson of mine, and wrote an unsatisfactory observation report dated December 13, 1994.
  24. Upon information and belief, Mr. Bruckner's behavior was not appropriate because it was inconsistent with the directive from Mr. Lo Shiavo concerning conciliation.
  25. On the 5th day of January, 1995, Mrs. Coppin held a meeting concerning my teaching. A letter, which is annexed as Exhibit 12 and dated February 3, 1995, summarized what was said at the meeting. Mrs. Coppin wrote, "I also warned you that, while I had not observed you at Edward R. Murrow, by your own description of what you do, you may be in danger of an unsatisfactory evaluation."
  26. On the 29th day of March, 1995, Harold Matthes, a teacher from another school who was trained in conciliation, conducted a conciliation meeting with me and Mr. Bruckner. I told Mr. Matthes about the February 3, 1995 letter that Mrs. Coppin wrote. Mr. Matthes told me to tell the UFT about Mrs. Coppin's actions. At this session, I was not given an opportunity to reach an agreement with Mr. Bruckner in accordance with the conciliation process set forth by Mr. Lo Shiavo.
  27. On or about the 3rd day of May, 1995, Mr. Forster wrote a letter to Mr. Lo Schiavo concerning the conciliation process. Mr. Forster said that he believed the conciliation process was still open because Mr. Matthes had not sent a letter terminating the conciliation process as required by Article 24. Mr. Forster wrote, "It appears that the letter written by Ms. Coppin as a result of her 'conciliation meeting' may have presented a problem at the conciliation held by Mr. Matthes." Mr. Lo Shiavo did not respond to this letter, which is annexed as Exhibit 13.
  28. On or about the 17th day of May, 1995, after being observed by Winifred M. Radigan, Director of Instruction for Brooklyn High Schools, I was informed that the Superintendent's Office supported Mr. Bruckner's recommendation that I be given an unsatisfactory annual professional evaluation for the 1994-1995 school year.
  29. On the 29th day of May, 1995, I wrote a letter, annexed as Exhibit 14, to Mr. Bruckner in accordance with standard grievance procedures. The grievance letter complained that my supervisors had no right to give me unsatisfactory ratings for poor teaching during the conciliation process.
  30. On the 5th day of June, 1995, I met with John Soldini, Vice President of High Schools for the UFT, Mr. Volpicella, and Mr. Solomon to discuss the conflict between me and my supervisors. Mr. Soldini agreed with me that the unsatisfactory observations were inconsistent with the conciliation agreement. Afterwards, I mailed Mr. Soldini a letter, annexed as Exhibit 15, saying, "Conciliation will be a much better route to take for the children, for the taxpayers and for all concerned than the route of U-ratings, grievances, and charges of incompetence back and forth."
  31. On the 12th day of June, 1995, during a conference which followed an observation of my lesson, I told Mr. Cohen that I would not change my teaching in the 1995-1996 school year. In the observation report, annexed as Exhibit 16, Mr. Cohen stated, "You have made it clear by your comments that the supervisory suggestions that have been given to you during your year at Murrow are not useful."
  32. I believed that the only way my lessons would be judged as satisfactory in the 1995-1996 school year is if I emulated the teaching practices and techniques used by my colleagues and abandoned the teaching practices and techniques that I had developed for teaching science. This belief was based on the many conversations, written communications, and meetings that I had with Mr. Cohen and Mr. Bruckner.
  33. Furthermore, I believed that I was not authorized to change my teaching methods except as part of the conciliation process. In addition, I believed, that I was not authorized to request a transfer to another school because the conciliation process had not been completed.
  34. On or about the 20th day of June, 1995, I was given a teaching program for September 1995 that was identical to the teaching program I had just completed. I interpreted this to mean that my position had merit, that my lessons were not unsatisfactory, and that the conciliation process was still open.
  35. On or about the 6th day of October, 1995, Don Roth, Senior Executive Assistant to the Brooklyn High Schools, denied the grievance referred to in paragraph 29.
  36. On or about the 8th day of November, 1995, Mr. Matthes wrote a letter, annexed as Exhibit 17, to Roberto Fuentes, who he addressed as Board Coordinator for Professional Conciliation Process, purporting to terminate the conciliation process. The letter stated, "In as much as the parties involved were unable to reach a mutually satisfactory agreement, I have terminated the conciliation process."
  37. On or about the 16th day of November, 1995, Howard J. Bloch, Director of the Grievance Department of the UFT, denied my request to appeal the denial of my grievance to the Chancellor.
  38. On or about the 21st day of November, 1995, after a conversation with me, Mr. Forster wrote a letter, annexed as Exhibit 18, to Mr. Volpicella asking Mr. Volpicella to intervene with Mrs. Coppin on my behalf. The letter says, "David wishes to work with the Foundations course and also to work on the introduction of a newly developed course in physics."
  39. On the 16th day of January, 1996, I met with Tom Pappas, Secretary and Director of Staff of the UFT, Mr. Soldini, George Fesko, Assistant to the President, and Mr. Bloch. I asked the UFT to appeal the denial of my grievance to the Chancellor. A letter from Mr. Fesko, annexed as Exhibit 19 and dated February 16, 1996, said that the Grievance Committee of the Administrative Committee of the UFT "decided to remand this grievance back to Professional Conciliation since this would be the best forum to obtain a resolution."
  40. According to a letter from Mr. Solomon, annexed as Exhibit 20, "There were a number of conversations with John Ferrandino, former Superintendent of the High School Division. He indicated that he would investigate the circumstances surrounding your conciliation, and would get back to the Union with his findings."
  41. In the middle of the school term, on the 29th day of February, 1996, I was relieved of my teaching duties and assigned to administrative duties at another location. Annexed as Exhibit 21 is the letter from Mrs. Coppin directing the transfer. The letter said, "I have been informed by the Board of Education's Office of Legal Services that they will be proceeding with the initiation of charges against you for 'Just Cause'."
  42. Upon information and belief, my removal from the classroom was unfair because I had done nothing wrong and my supervisors knew that I had done nothing wrong.
  43. Upon information and belief, the agreement to teach at Edward R. Murrow was an agreement to teach for the entire school year, so that removing me from the classroom violated my contractual rights.
  44. Upon information and belief, I was relieved of my teaching assignment because of the conversations that took place between Mr. Ferrandino and the UFT.
  45. On or about the 16th day of March, 1996, Mr. Matthes wrote a letter, annexed as Exhibit 22, to Mr. Solomon concerning Mrs. Coppin's letter of February 3, 1995, which is annexed as Exhibit 12. Mr. Matthes's letter says, "I must conclude that the content and tone of Mrs. Coppin's letter effectively barred any hope for success for the conciliation process at the time of the meeting in March of 1995."
  46. On the 1st day of November, 1996, the Office of Legal Services of the Office of the Chancellor submitted to the Board of Education a 24-page document, annexed as , that set forth charges against me. The document, for the most part, summarized 13 observation reports from the 1994-1995 school year and 7 observation reports from the 1995-1996 school year.
  47. On or about the 6th day of November, 1996, the Board of Education drafted a resolution for adoption at its next regular calendar meeting, annexed as Exhibit 24, concerning the finding of probable cause for the charges.
  48. Upon information and belief, the charges are false and fraudulent because the charges state that I am an incompetent teacher. The fact is that I had developed an innovative method of teaching that my supervisors objected to. Furthermore, this disagreement was supposed to be resolved by the conciliation process which was not completed.
  49. Upon information and belief, the observation reports which were written in the 1995-1996 school year are fraudulent government documents because it was predetermined that my lessons would be given an unsatisfactory rating.
  50. Upon information and belief, the charges are false and fraudulent because they imply that I was given an opportunity to improve my teaching in the 1995-1996 school year. This is not true, because I believed that I had a contractual right to reach an agreement with Mr. Bruckner in accordance with the conciliation process.
  51. Upon information and belief, the charges were unfair, because I relied on the fact that the conciliation process had not been completed.
  52. Upon information and belief, the charges were unlawful because they were contrived to prevent the Board of Education and the public from knowing abut the open conciliation agreement and my innovative method of teaching.
  53. Upon information and belief, the charges were unlawful because they violated the public policy to improve instruction in a fraudulent and dishonest manner.
  54. On or about the 14th day of November, 1996, I requested a hearing on the charges in accordance with the procedures of Education Law. Exhibit 25 is a copy of my request.
  55. On or about the 14th day of November, 1996, I exercised my right under Education Law to have the charges heard by a three-member panel. This right is based on the fact that the charges against me concerned pedagogic incompetence or issues that involve pedagogical judgment. Exhibit 26 is a copy of my request.
  56. On the 20th day of November, 1996, I addressed the Board of Education in public at its regular calendar meeting. I explained and defended my method of teaching to Rudolph F. Crew, Chancellor, and the other members of the Board of Education. My remarks were read from a prepared text, annexed as Exhibit 27, that was distributed to the members of the Board of Education.
  57. At this meeting, I said that my method of distributing to students a lesson plan every day a) increases the student's responsibility for achieving the lesson's instructional objectives, b) increases the variety of possible student activities, c) gives students multiple ways of learning, and d) allows students to progress at different rates.
  58. On or about the 6th day of December, 1996, the attorney assigned to me by the UFT, Mitchell H. Rubinstein, Esq., wrote a letter, which is annexed as Exhibit 28, to the Office of Legal Services, offering to settle the charges against me. The letter says, "He was hoping that this disagreement could be resolved through the conciliation process which he thought was still pending."
  59. On or about the 24th day of January, 1997, I wrote to Sandra Feldman, President of the UFT. The letter, annexed as Exhibit 29, says, "How should I regard the conciliation agreement? Is the agreement still in force? Does filing charges against me for 'unsatisfactory' teaching violate the agreement?"
  60. Mr. Solomon responded to my letter with the letter dated February 10, 1997 and annexed as Exhibit 20. Mr. Solomon says, "As to your conciliation, it was agreed at your meeting with the Administrative Committee, at which you were present, that an attempt would be made to re-open your case."
  61. Upon information and belief, Mr. Solomon's letter attempted to cover-up the unlawfulness of the charges against me by using the term "re-open" rather than "remand" which was the word Mr. Fesko used in his letter of February 16, 1996, which is annexed as Exhibit 19.
  62. On or about the 11th day of February, 1997, Mr. Rubinstein sent a letter, along with the request for conciliation and the acceptance of conciliation, Exhibits 9 and 10, to the Office of Legal Services. The letter, annexed as Exhibit 30, said, "If your client is willing to proceed with conciliation or if your client agrees that the conciliation process is still open it seems pointless to proceed with the §3020-a."
  63. A hearing officer, Howard C. Edelman, Esq., was selected to review the charges. Mr. Edelman conducted pre-hearing conferences on the 24th day of March, 1997, and the 11th day of April, 1997. I was represented at the pre-hearing conferences by Harold M. Weiner, Esq.
  64. At the pre-hearing conferences, Michael Mazzariello, Esq., from the Office of Legal Services, said he was willing to settle the case if I agreed to transfer to another school and agreed to a three-month suspension without pay, according to Mr. Weiner. Mr. Weiner persuaded Mr. Mazzariello to accept a two-month suspension without pay. Mr. Weiner told me that he told Mr. Edelman and Mr. Mazzariello that it was obvious that the charge of incompetence was a pretext and that the true complaint against me was insubordination.
  65. On or about the 11th day of April, 1997, Mr. Weiner negotiated a settlement of the charges against me. Mr. Weiner and I signed the agreement, annexed as Exhibit 31, which was drafted by the Office of Legal Services. The agreement says, "Respondent acknowledges that during the 1994-1995 and 1995-1996 school years, while assigned to Edward R. Murrow High School in Brooklyn, he failed to follow his supervisors directives and suggestions regarding his teaching service. Respondent agrees to follow his supervisors directives and suggestions in the future, even if he disagrees."
  66. On or about the 2nd day of May, 1997, Mr. Weiner told me that the Board of Education, meeting in executive session, refused to approve the agreement. Mr. Weiner said that Mr. Roth, referred to in paragraph 35, urged the members of the Board of Education to approve the stipulation. According to Mr. Weiner, Mr. Roth said that I had an unblemished record for ten years, that my difficulties were only with the Principal of Edward R. Murrow High School, and that I would perform satisfactorily at another high school.
  67. Under Education Law, the hearing officer may dismiss any or all of the charges, without prejudice to the filing of more specific charges, upon motion of the charged party.
  68. Upon information and belief, Mr. Weiner made a motion before Mr. Edelman to dismiss the charges against me for lack of specificity.
  69. Upon information and belief, Mr. Edelman acted unfairly in not dismissing the charges against me.
  70. On the 13th day of June, 1997, Mr. Edelman began hearings concerning the charges. Mr. Mazzariello made his opening remarks to a panel consisting of Mr. Edelman and two volunteers with backgrounds in education. Mr. Mazzariello said that I was an incompetent teacher and that my supervisors attempted to help me improve my teaching. Exhibit 32 is page 1 to 12 of the transcript of the hearing and covers the opening remarks of Mr. Mazzariello and my attorney.
  71. In his opening remarks, Mr. Mazzariello also said, "You are going to hear testimony about the philosophical approach. Mr. Roemer wanted to use a constructivist approach to teaching. Mr. Bruckner and Mr. Cohen are going to testify that they didn't have a problem with that; they preferred the developmental lesson, but they didn't have a problem with the constructivist approach, used correctly. You are going to hear that it wasn't used correctly."
  72. I was represented at the hearings by Joel Field, Esq. In his opening remarks, Mr. Field said, "In many ways, there is a history of unfortunate occurrences and programs and some obstinacy on the parts of everybody concerned. After all, he is not going to be the first man that did not say that he has not made some mistake. He did make some mistakes, but this is a situation that we ask you to look at with an open mind. This is not a case of a teacher who is in there incompetently, not wanting to teach, not wanting to carry out his assignments and not wanting to teach the children, not wanting to help the children; it is just the opposite."
  73. Upon information and belief, I made no mistakes in connection with my employment at Edward R. Murrow High School that have any relevance to the charges against me.
  74. On the 29th day of January, 1998, Mr. Mazzariello, during his cross-examination of Mr. Matthes, criticized Mr. Matthes for not sending a letter terminating the conciliation process until the 8th day of November, 1995. Mr. Mazzariello also accused Mr. Matthes of changing his mind about the conciliation process in the letter Mr. Matthes wrote dated March 13, 1996. Exhibit 17 is the letter dated November 8, 1995 and Exhibit 22 is the letter dated March 13, 1996. Exhibit 33 is a copy of the transcript from page 665 to 691 and records the cross-examination.
  75. On the 12th day of February, 1998, Mr. Mazzariello, in his closing arguments, said that I was an incompetent teacher. Concerning the conciliation process, Mr. Mazzariello said, "And I want to make this other point about conciliation. It's not required." Mr. Mazzariello also said, "You know what he can do with the conciliation process. I would tell you, but Mr. Edelman will yell at me..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." Exhibit 34 is a copy of the last 19 pages of the transcript.
  76. On or about the 12th day of May, 1998, after seven days of hearings and after receiving Mr. Fields's written brief, Mr. Edelman, with the concurrence of the panel member selected by the Board of Education, wrote a 52-page decision, which is annexed as Exhibit 35. The award stated, "Respondent David Roemer is culpable of the charges preferred against him pursuant to Section 3020-a of the Education Law. The appropriate penalty for Respondent's culpability is dismissal from service."
  77. On or about the 14th day of May, 1998, the panel member selected by me dissented from the majority report. The minority panelist said, "I concur with the findings of the Panel majority but dissent from the recommendation that Dr. David Roemer be dismissed from service as a result of the charges against him pursuant to Section 3020-a of the Education Law." Her decision, which is annexed as Exhibit 36, said I should be transferred to another school without any additional penalty. Alternatively, I should be returned to Edward R. Murrow High School for a period of probation.
  78. Upon information and belief, I was found innocent of the charge of incompetence, because the dissenting panelist said that she agreed with the findings of the majority and because the dissenting panelist found that I was innocent of the charge of incompetence.
  79. Mr. Edelman says on page 47 his decision, "Significantly, Respondent did not evince a lack of understanding of the criticisms and suggestions offered. Indeed, the Panel was impressed with his knowledge of the subject matter and his general intelligence. Instead, Respondent simply refused to incorporate the many suggestions and directives issued. As such, we are convinced, this is not a case of a teacher who could improve with additional training. Instead, this is a case of a teacher who simply believed he was right and everyone else was wrong. Thus, we conclude, no useful purpose would be served by restoring Respondent to duty."
  80. Mr. Edelman says on page 31, "He suggests that the pass rate for those students taking the Physics Regents in 1993-94 was 60 percent and in 1995-96 was 65 percent; while in 1994-95 the only full year he taught Physics in Murrow it was 70 percent."
  81. Mr. Edelman says on page 32, "He suggests the unit tests which were generated by the Physics Department reveal that the students were, in fact, learning the subject matter. Therefore, Respondent urges, the Board has not established his incompetence by a preponderance of the evidence."
  82. On page 45, Mr. Edelman says, "there can be no doubt that Respondent knew the conciliation process had not succeeded as early as Spring 1995. As such, his assertion that he was waiting for the conciliation process to finish while still insisting on teaching the way he wanted, failing to provide lesson plans, etc. is without merit."
  83. Upon information and belief, the findings and recommendations of the panel majority are totally irrational because the logical consequence of the Principal and me not being able to agree and not being able to sign a conciliation agreement would be for me to transfer to another school.
  84. Upon information and belief, the findings and recommendations of the panel are totally irrational because the panel failed to realize that the charges against me were unfair, because the conciliation process was not completed.
  85. Upon information and belief, the panel erred in not finding me innocent of all charges. The panel also erred in not ordering the Board of Education to reimburse me for my legal expenses, as provided by the Education Law, because the charges against me were frivolous.
  86. On the 24th day of June, 1998, Mr. Field prepared and filed a petition, annexed as Exhibit 37, to the Supreme Court to vacate the findings and recommendations of the panel. The petition included as exhibits the findings and recommendations of the panel, which are Exhibits 35 and 36, and the charges, which is Exhibit 23.
  87. Mr. Field wrote in paragraph 2c of the petition, "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."
  88. Sometime after the 24th day of June, 1998, John C. Wirenius, Esq., of the Corporation Counsel of the City of New York, was assigned to represent the Board of Education in court. Mr. Field told Mr. Wirenius that I wanted my job back, and, since there was a shortage of science teachers, it was in the interests of the Board of Education to settle the case.
  89. On the 27th day of June, 1998, I sent a letter by certified mail to Randi Weingarten, President of the UFT. In the letter I said, "I am requesting that you write either to the Chancellor, the Board of Education, or the Corporation Counsel of New York City asking them not to contest the motion before the State Supreme Court." There was no response to this letter which is annexed as Exhibit 38.
  90. On the 22nd day of July, 1998, I sent a letter, annexed as Exhibit 39, by certified mail to Miss Weingarten asking for an appointment to see her. There was no response to this letter.
  91. On or about the 22nd day of October, 1998, Mr. Wirenius filed a cross-motion to dismiss the petition on the grounds that it contained no cause of action.
  92. On or about the 27th day of November, 1998, acting pro se, but with the help of Mr. Field, I prepared and submitted a reply affidavit in support of my petition, annexed as Exhibit 40, to oppose Mr. Wirenius's motion. Attached as exhibits were the request for conciliation, the acceptance of conciliation, and the letter from Mr. Forster to Mr. Lo Shiavo about the conciliation process. These documents are Exhibits 10, 11, and 13, respectively.
  93. In the reply affidavit I say, "I submit, in short, that I have been terminated because of my innovative teaching methods and that this case can be resolved through the conciliation process which has not been completed. My termination has sidestepped the conciliation process and should be set aside."
  94. In the reply affidavit I say, "Though charged with incompetence, the panel never even suggests that my students were not receiving a valid educational experience. The findings of the panel emphasize the conflict between myself and the Principal and Assistant Principal of Science over teaching methodology."
  95. On the 3rd day of December, 1998, I met with Mr. Wirenius in the courtroom of Judge Ariel E. Belen, and discussed the case for over an hour. I explained to Mr. Wirenius why my termination was unfair. Judge Belen recused himself from the case because of a personal connection between us.
  96. On the 10th day of December, 1998, Mr. Wirenius and I met with Judge David B. Vaughn of the Supreme Court, in chambers. I asked Judge Vaughan to set aside my termination because it prevented the Board of Education from completing the conciliation process. Judge Vaughan stated that if the Board of Education wanted to conciliate with me they would not have fired me. I responded that the Chancellor and the Board of Education were unaware of the fact that the conciliation process was not completed.
  97. At this meeting, Mr. Wirenius told Judge Vaughan that there were two conciliation meetings and that my position was unreasonable because I was demanding what Mr. Wirenius called a formal end to the conciliation process.
  98. On or about the 6th day of May, 1999, I mailed Mr. Wirenius a letter, annexed as Exhibit 41, after a telephone conversation with him. The letter says, "My complaint is that you lied to Judge Vaughan during the meeting in his chambers on December 10, 1998. You said that the conciliation agreement between me and the Board of Education is not open, i.e., that the Board of Education either completed the conciliation process or did not wish to continue with the conciliation process. I quoted the exact words you used in the letter I sent to you and Chancellor Crew two days after the hearing." Mr. Wirenius did not respond to the letter.
  99. Immediately after Judge Vaughan heard Mr. Wirenius's comments, he dismissed my petition and granted the cross-motion to dismiss the petition. Exhibit 42 is the order the judge signed.
  100. Upon information and belief, Judge Vaughan did not read the petition prepared by Mr. Field, the findings and recommendations of the panel, my reply affidavit, and the exhibits.
  101. On the 4th day of January, 1999, I filed a notice of appeal of Judge Vaughan's order to the Appellate Division: Second Department.
  102. On the 19th day of May, 1999, I had a telephone conversation with Michael D. Hess, Corporation Counsel of the City of New York, and explained to him why the charges against me were unfair.
  103. On or about the 29th day of May, 1999, I created a record on appeal with pages numbered consecutively. The record on appeal included the petition and the reply affidavit in support of the petition with all the exhibits. Pages 4 to 10 of the record on appeal are identical to Exhibit 37 of this petition. Pages 11-34 correspond to Exhibit 23 of this petition. Pages 36 to 85 correspond to Exhibit 35, pages 86 to 90 correspond to Exhibit 36, pages 96 to 102 correspond to Exhibit 40, page 105 corresponds to Exhibit 10, page 106 corresponds to Exhibit 11, and pages 107 and 108 correspond to Exhibit 13.
  104. On or about the 29th day of May, 1999, I perfected the appeal by writing a brief, annexed as Exhibit 43, which argued that the findings and recommendations of the panel were totally irrational, exceeded the authority of the panel, violated public policy, and relegated the parties to future litigation.
  105. On or about the 30th day of June, 1999, George Gutwirth, Esq., and Francis F. Caputo, Esq., of the Corporation Counsel of the City of New York, filed a respondent's brief, which is annexed as Exhibit 44.
  106. Upon information and belief, the respondent's brief is not responsive to my brief. The brief does not explain how the conciliation agreement transformed into charges of incompetence and insubordination against me.
  107. Upon information and belief, Mr. Hess behaved unethically and abused the judicial process in allowing Mr. Gutwirth and Mr. Caputo to submit the respondent's brief because the brief was dishonest and was contrived to deceive the court.
  108. On or about the 2nd day of December, 1999, I mailed a letter, annexed as Exhibit 45, to Ms. Weingarten complaining about the conduct of the UFT.
  109. On or about the 17th day of December, 1999, I faxed and mailed letters to approximately forty members of the Executive Board of the UFT demanding my rights. I posted documents justifying my demands on the internet with the following address: www.panix.com/~roemer. Exhibit 46 is a copy of the home page of this website.
  110. On or about the 9th day of January, 2000, Mr. Pappas responded negatively to my demands upon the UFT with a letter that is annexed as Exhibit 47. Mr. Pappas said, "For the above said reasons, the Union will not extend to you any further legal assistance, or financial reimbursement regarding the disciplinary case against you. Therefore, we decline to invite you to make your proposed presentation to the Executive Board."
  111. On or about the 18th day of January, 2000, the Appellate Division affirmed the order and judgment of the Supreme Court. The decision and order is annexed as Exhibit 48.
  112. On or about the 14th day of February, 2000, I filed a Notice of Motion for Leave to Appeal to the Court of Appeals the decision and order of the Appellate Division. The moving papers stated that my right to due process of law under the 14th Amendment of the Constitution of the United States of America was violated by the actions of the Board of Education.
  113. On or about the 15th day of March, 2000 I published a legal notice, reproduced as Exhibit 49, in a newspaper called New York Press. This advertisement advised members of the Delegate Assembly of the UFT that my constitutional right to due process of law was violated by the actions of the UFT and the Board of Education.
  114. On the 4th day of April, 2000, the Court of Appeals denied my motion for leave to appeal. The order is annexed as Exhibit 50.
  115. On the 13th day of April, 2000, as described in paragraph 2, I filed an improper practice charge against the UFT and the Board of Education. The initial complaint is annexed as Exhibit 2.
  116. Upon information and belief, the UFT and the Board of Education acted illegally and maliciously in conspiring to file charges against me under Education Law for the reasons given in paragraphs 49 to 54. For this reason, the alleged improper practice is a continuing one and the limitation of time did not commence until I demanded my rights and was refused.
  117. Upon information and belief, I acted reasonably in requesting a hearing for the charges against me, in filing a petition to vacate the findings and recommendations of the panel, in appealing to the Appellate Division, and in appealing to the Court of Appeals.
  118. Upon information and belief, the four-month statue of limitations in §204.1(a)(1) of the PERB's Rules of Procedure began to accrue on the 9th day of January, 2000, when Mr. Pappas refused to satisfy my demands. The letter from Mr. Pappas is annexed as Exhibit 47.
  119. On or about the 21th day of April, 2000, I received a letter with an attached deficiency notice from Kenneth Toomey, Assistant Director of Public Employment Practices and Representation, concerning the improper practice charge. The letter stated that I had until the 10th day of May, 2000, to file amended pleadings. Both documents are annexed as Exhibit 51.
  120. On or about the 22nd day of April, 2000, I sent a 3-page letter, annexed as Exhibit 52, to Mr. Toomey expanding and explaining my pleadings.
  121. On or about the 24th day of April, 2000, I sent an additional letter, annexed as Exhibit 53, to Mr. Toomey.
  122. On the 4th day of May, 2000, I mailed an amendment to my charges, which is annexed as Exhibit 54. The amendment says, "Sometime between January 16, 1996 and February 29, 1996 Howard Solomon, an employee of the UFT, had conversations with John Ferrandino, Superintendent of High Schools. In these conversations, Mr. Solomon and Mr. Ferrandino conspired to unlawfully prevent me from carrying out my duties as a high school teacher, and conspired to generate a fraudulent government document. I was unlawfully removed from the classroom on February 29, 1996, and the document was communicated to the New York City Board of Education on November 1, 1996."
  123. On or about the 5th day of May, 2000, I received a decision, annexed as Exhibit 55, from Monte Klein, Director of Public Employment Practices and Representation, dismissing the improper practice charge.
  124. Upon information and belief, Mr. Klein acted arbitrarily and capriciously when he dismissed my case before the 10th day of May, 2000, which was the deadline given to my by Mr. Toomey.
  125. Upon information and belief, Mr. Klein abused his discretion in stating that I did not plead any facts that showed bad faith, when I used words like "fraudulent", "dishonest", and "unlawful" in my initial pleading and the two letters to Mr. Toomey.
  126. Upon information and belief, Mr. Klein abused his discretion in concluding that my complaint was untimely. My complaint was timely because it was filed within four months of the time the UFT refused my demands.
  127. On or about the 5th day of May, 2000, I filed exceptions to the decision of the director. This document, annexed as Exhibit 56, was served on the UFT on the 11th day of May, 2000, and on the Board of Education on the 16th day of May, 2000. Neither the Board of Education nor the UFT responded to the exceptions or the initial charges.
  128. Rules 3211(a)(5) and 3211(e) of the CPLR state that a defense based on a statue of limitations is waived if such a defense is not immediately used.
  129. Upon information and belief, the UFT and the Board of Education waived their right to the four-month statue of limitations for filing improper practice charges, because they did not assert this right when they were served with my exceptions to the decision of the director.
  130. On or about the 10th day of July, 2000, Robert De Paula, Deputy Chairman and Counsel of PERB, sent a letter, annexed as Exhibit 57, refusing my request to give oral arguments before PERB.
  131. Upon information and belief, Mr. De Paula abused his discretion in not allowing me to make an oral presentation to PERB because of the esoteric nature of the educational issues involved in this case.
  132. On the 11th day of August, 2000, I received the decision and order of PERB, annexed as Exhibit 1, which supported the decision of the director to dismiss my complaint.
  133. According to the §204.2 of the Rules and Regulations of PERB, after a charge is filed, the director is required to prepare a notice of a hearing. The hearing is to be conducted by the director or a designated administrative law judge. The director can dismiss the charges only if "the facts as alleged do not, as a matter of law, constitute a violation, or that the alleged violation occurred more than four months prior to the filing of the charge."
  134. Upon information and belief, PERB acted capriciously and arbitrarily in not ordering a hearing of the charges.
  135. Upon information and belief, PERB acted arbitrarily and capriciously in applying the four-month statue of limitation to my complaint when the UFT and the Board of Education waived that defense as explained above.
  136. Upon information and belief, PERB abused its discretion in characterizing my charges as pleading no facts that would support a finding that the UFT's actions were arbitrary, discriminatory, or made in bad faith.


WHEREFORE, petitioner David Roemer demands that judgment be entered that vacates the decision and order of PERB, that directs the Board of Education to reinstate the petitioner to his position as a tenured teacher of physics at Edward R. Murrow High School, 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 reimbursed for all legal expenses, and granted such other and further relief the Court may deem to be just and proper in the circumstances.



Dated: August 21, 2000



Very truly yours,



______________________



David Roemer, pro se
345 Webster Ave., Apt. 4-O
Brooklyn, New York
718-438-7375



To:



Public Employment Relations Board
80 Wolf Road
Albany, New York 12205-2604



United Federation of Teachers
260 Park Ave. South
New York, New York 10010



Board of Education of the City School District of the City of New York
110 Livingston Street
Brooklyn, New York 11201



New York State Department of Law New York
120 Broadway - 24th Floor
New York, New York 10271