Opinion
No. 111353/09.
2010-12-21
In the Matter of the Arbitration of Certain Controversies between Kathleen SANG, Petitioner, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent.
Richard A. Dienst, Esq., New York City, for the Plaintiff. NYC Board of Education, Legal, New York City, for the Defendant.
Richard A. Dienst, Esq., New York City, for the Plaintiff. NYC Board of Education, Legal, New York City, for the Defendant.
ALICE SCHLESINGER, J.
Petitioner Kathleen Sang, formerly a tenured teacher at Grady High School, commenced this proceeding pursuant to New York Education Law § 3020–a(5) and CPLR § 7511 seeking to vacate the July 24, 2009 Opinion and Award of Hearing Officer Deborah M. Gaines (the “Opinion,” Exh 1 to petition). That opinion, consisting of 25 pages, was issued after seven days of hearings held pursuant to Education Law § 3020–a regarding five charges asserted by the New York City Department of Education (DOE) in connection with its request for the termination of Ms. Sang's employment.
In general, the charges relate to Ms. Sang's receipt of $7,000.00 in pay for unauthorized “per session” work. Per session work is essentially overtime work which, as discussed more fully below, is highly regulated pursuant to Chancellor's Regulation C–175. The specific charges proffered by the DOE against Ms. Sang all relate to the 2005–2006 academic year and can be summarized as follows:
1. Ms. Sang worked per session hours that she was not authorized to work;
2. Ms. Sang was unable to provide the names of students she allegedlyworked with during her per session employment;
3. Ms. Sang submitted per session time sheets with the forged signature ofAssistant Principal Steven La Placa for twelve separate payroll periods;
4. Ms. Sang failed to punch out her time card in violation of Chancellor'sRegulation C–175 on 49 separate occasions; and
5. Ms. Sang failed to punch in her time card in violation of Chancellor'sRegulation C–175 on 38.separate occasions.
These five charges particularized the overall Specification that Ms. Sang “violated Chancellor's Regulation C–175, engaged in fraud, theft of services, misconduct, neglect of duty and conduct unbecoming her profession.”
In her Opinion, Hearing Officer Gaines thoroughly analyzed the evidence adduced by each side at the hearing and found that the DOE had proven all five charges specified against Ms. Sang. She further concluded that termination was an appropriate penalty in light of the serious nature of the misconduct.
Ms. Sang then commenced this proceeding to vacate the Hearing Officer's Opinion pursuant to CPLR § 7511(b)(iii) on the ground that the Hearing Officer exceeded her powers or so imperfectly executed the Opinion that a final and definite award upon the subject matter submitted was not made; or in the alternative, to modify the Opinion based on a mistake in the description of a person, thing or property or an error of fact or law, or because the penalty is shocking to the conscience.
Respondent DOE moved to dismiss the petition pursuant to CPLR § 3211(a) 7 for failure to state a cause of action. DOE asserts that the Hearing Officer carefully considered the evidence and reached a rational conclusion after a reasoned analysis of the facts and the law. Emphasizing the extremely limited grounds for vacating an award pursuant to CPLR § 7511(b), DOE argues that Ms. Sang has failed to establish any basis for vacating the Opinion and Award at issue in this case.
This Court agrees with the DOE. Wholly without merit is Ms. Sang's claim that the Hearing Officer exceeded her powers or imperfectly executed the award. What is more, the Court has reviewed the voluminous transcript of the lengthy proceeding and finds that the Hearing Officer's decision is rationally based on the evidence. Although Ms. Sang may well have worked some of the hours she claims, the work was not authorized per session work and thus was not eligible for payment under Chancellor's Regulation C–175. A review of the evidence and the Hearing Officer's analysis of that evidence follows.
With respect to the first specification, that Ms. Sang worked per session hours without proper authorization, the Hearing Officer began by discussing the restrictions on per session work set forth in Chancellor's Regulation C–175. The goal of the regulation is to avoid having any one employee spend an inordinate amount of time on per session employment so as to avoid interference with primary responsibilities and insure that the per session assignments are distributed equitably. To achieve that goal, the regulation requires that the DOE confer with the Union to create actual per session assignments for each school each year. The agreed upon assignments must then be posted in a writing that describes all relevant information, and any interested party must submit a written application.
Once a teacher has been awarded a per session assignment, the proper paperwork must be completed before the teacher can be paid for the work. As a general rule, the teacher must punch in at the time clock at the beginning of each session and punch out at the end. In addition, the teacher must submit time sheets for the work that are consistent with the time cards. In some cases, such as tutoring assignments, student attendance sheets are required.
The time sheets for Ms. Sang submitted at the hearing indicated that she requested per session payments for Grant Writing, for work as a Lab Coordinator, and for work for unspecified assignments. At the hearing, various school administrators involved with per session activities testified. Significantly, none recalled that Ms. Sang had applied for or been awarded a per session assignment for the time period in question. Although Ms. Sang introduced into evidence a “purported posting for two Grant Writing positions,” the Hearing Officer gave that evidence no weight, as the postings did not contain the required principal's signature and no administrator recalled that Ms. Sang had ever received authorization for that work as a per session assignment.
Nor was the Lab coordinator position an authorized per session assignment; rather, it was at “Circular 6” assignment in exchange for which a teacher could at most request a free period. In her Opinion, the Hearing Officer acknowledged that Principal Neuschotz did testify in response to questions from Ms. Sang's counsel that he instructed Mr. La Placa to make the position a paid one to attract more candidates. However, the Hearing Officer appropriately concluded that Ms. Sang presented no persuasive evidence that payment for the Lab Coordinator position was ever formally authorized as per session work pursuant to Chancellor's Regulation C–175.
Similarly, the Hearing Officer appropriately concluded based on the evidence that Ms. Sang was not authorized to work as a Tutor per session. According to Mr. La Placa, per session tutoring was limited to the two months immediately preceding the Regents exams. At other times, teachers did meet with students but were not authorized to receive per session pay. Ms. Sang's time sheets were outside the per session period, and Ms. Sang's name was not included in the school's letter to parents listing authorized tutors.
Also undocumented and unsubstantiated was Ms. Sang's claim of authorized per session work on Saturdays for Robotics. While some testimony was adduced to confirm Ms. Sang's periodic participation in the program, those in charge insisted that they had never authorized any per session assignment, and Ms. Sang's time sheets did not confirm that she worked the hours claimed.
The DOE clearly established the second specification, that Ms. Sang was unable to provide the names of students she allegedly tutored on a per session basis. Teachers are required to have the students sign attendance sheets. Principal Gray testified that he had asked Ms. Sang to produce those records but that she had failed to do so. The Hearing Officer reasonably rejected Ms. Sang's claim that she did not produce the records because she was denied access to her files; the request was made at a time when Ms. Sang had easy access to her files. It was also reasonable to reject Ms. Sang's contention that the DOE should have interviewed the students to confirm the tutoring, when she was unable to provide any attendance sheets with names.
Particularly troubling is the evidence adduced against Ms. Sang in connection with specification 3, which charges that she submitted per session time sheets with the forged signature of Assistant Principal Steven La Placa on twelve different occasions. Mr. La Placa testified in no uncertain terms that the signature was not his and that he never authorized anyone else to sign time sheets for him. While it is true that the DOE did not prove that Ms. Sang herself made the forgeries, Ms. Sang as the teacher is responsible for her time sheets.The Hearing Officer appropriately rejected as incredible Ms. Sang's testimony that she gave her time sheets to Mr. Eisengrein's secretary to obtain approval for the sake of convenience when she knew that Mr. La Placa was the only individual authorized to approve the time sheets. The testimony was also suspect in light of the evidence of the close personal relationship between Ms. Sang and Mr. Eisengrein.
Specifications 4 and 5 are based on the countless times that Ms. Sang failed to punch her time card in at the beginning of a per session activity or out at the end. Because per session work is so closely monitored, Chancellor's Regulation C–175 requires that a teacher punch in and out. Occasional lapses can be remedied with the signature of a supervisor. But in this case, Ms. Sang's failure to comply with the Regulation was so extreme that it could not be reasonably excused based on her claim that she had insufficient time to reach the time clock. The excuse is especially unpersuasive with respect to the failure to punch out.
Similarly unpersuasive is Ms. Sang's claim that Principal Neuschotz did not insist upon strict compliance with the time clock rule. Principal Neuschotz retired after June 2005. The charges relate to the academic year beginning in September 2005 under the tenure of Principal Steven Jackson. Principal Jackson credibly testified that he handed out copies of C–175 to the teachers at Grady High School at the beginning of the academic year and directed compliance with the requirements. That testimony was not rebutted by Ms. Sang in any meaningful way.
Based on the above analysis, Hearing Officer Gaines sustained the specified charges against Ms. Sang. She then concluded that the termination of Ms. Sang's employment was an appropriate penalty, stating (at p. 24) that:
Having found [Ms. Sang] guilty of misconduct, I now turn to the issue of penalty. [Ms. Sang's] actions were not merely technical or procedural violations of C–175. Rather, they constitute a fraud upon the Department and her colleagues for a period covering four months for which she received approximately $7,000 to which she was not entitled. Her conduct not only impacted the employer, but her colleagues as well. Per session activities are highly regulated precisely because they offer teachers the opportunity to earn additional compensation. The positions are highly coveted and policed actively by the Union on behalf of its members.
While by all accounts [Ms. Sang] was a dedicated and effective teacher, this is not a mitigating fact in the determination of penalty. Teachers must demonstrate a basic level of honesty in relationship to their duties. Acts of dishonesty of this magnitude do not warrant use of progressive discipline. [Ms. Sang] has broken the basic level of trust necessary in the employment relationship. Therefore, her conduct subjects her to immediate termination.
Although the termination of employment in these difficult economic times imposes great hardships, this Court does not find that the penalty here is so disproportionate to the offense as to justify vacating it. As the Appellate Division reiterated in Chaplin v. New York City Dept. of Education, 48 AD3d 226, 227–28 (First Dep't 2008), citing Matter of Kelly v. Safir, 96 N.Y.2d 32 (2001): “Acts of moral turpitude committed in the course of public employment are an appropriate ground for termination of even long-standing employees with good work histories.”
Accordingly, it is hereby
ORDERED that the cross-motion to dismiss by respondent Department of Education is granted; and it is further
ADJUDGED that the petition of Kathleen Sang is denied and the proceeding is dismissed without costs or disbursements to either side.