January-February 2018 Issue
December 20, 2017

Could this ever happen to you?

Source: NYSUT United

A veteran teacher is accused by a student of inappropriate behavior. The DOE wants the teacher terminated.

As a member of a NYSUT local union, you are entitled to free legal representation should you ever face discipline or discharge. NYSUT attorneys stand ready to fight for any in-service member and their local in these situations. Here's how one member was helped. The story you are about to read is real. Any identifying information has been changed to protect the NYSUT member's identity.

The background

In full view of two other adults and 20 students, veteran teacher John Smith approached a visibly distraught student and gave her a hug across the shoulders to reassure her. He then told her to "kiss and make up" with her friend with whom she had been arguing. As another teacher present in the computer lab who witnessed the incident, put it, Smith gave the student a "reassuring" touch on the shoulder, one she herself had done on countless occasions to calm and reassure distraught students.

The accusation

The then-10-year old student made a complaint against Smith, alleging he hugged and kissed her on the cheek. The New York City Department of Education initiated an investigation into the incident and subsequently lodged Education Law § 3020-a charges against Smith, seeking his termination.

Due process

A staff attorney in NYSUT's Office of General Counsel represented Smith in the 3020-a hearing. After hearing testimony from seven witnesses, the hearing officer dismissed all charges against Smith finding that "an innocent man was charged and prosecuted over innocent conduct that occurred in full view of two colleagues and a classroom of students."

The hearing officer explicitly found that the DOE's investigation that substantiated the allegation against Smith was so woefully inadequate "as to have been itself a denial of due process." The hearing officer held that "the investigation was, in essence, an effort to find supportive evidence, not to find objective facts."

The hearing officer found that far from attempting to unearth the truth about what actually happened in the computer lab, the DOE's investigator merely attempted to search for evidence to corroborate the allegations.

Furthermore, the hearing officer found it "outrageous" that the investigator concluded that Smith was not to be believed because he asserted his Cadet right to not be questioned by the investigator. Smith "made a privileged choice to remain silent and that fact should not have been relied on by the investigator ... or the [DOE] to his detriment," the hearing officer stated.

Unhappy with the decision that explicitly found that an innocent man was charged based on a deeply flawed investigation, the DOE filed a court proceeding seeking to vacate the hearing officer's decision.

Another attorney in NYSUT's Office of General Counsel represented Smith in court. The essence of the DOE's argument was that the veteran hearing officer was somehow biased against the DOE during the underlying 3020-a proceeding, and the decision was a result of that bias.

The court rejected the DOE's argument and sustained the original decision, holding that the hearing officer remained neutral and professional throughout the hearing, and in no way exhibited any bias for or against either party.

Quoting the hearing officer, the court found that "the DOE did not merely fail to meet its burden of proof, the evidence taken as a whole plainly establishes innocence on the part of" Smith.

After the court issued its decision, Smith was finally returned to the classroom, much to the delight of his students, colleagues and administrators.