EDUCATOR MISCONDUCT
Deborah
G l a s bre n e r
M a r r i ott
N YSA SPA
T h e O te s a g a H ote l
C o o pe r s town , N Y
O c to be r 21 , 2 014
AGENDA
Overview of Educator Discipline Process
Selected Part 83 Cases
Selected Education Law and SAPA
Provisions
Teacher Tenure Proceedings
EDUCATOR DISCIPLINE
(8 NYCRR PART 83)
Teachers and applicants for certification
must possess “good moral character”
The Commissioner investigates
allegations that raise a “reasonable
question as to an individual’s moral
character”
SOURCES OF COMPLAINTS
MANDATORY REPORTING
Chief School Officer Duties
 Superintendents must report to the
Commissioner any information that a certified
individual has been convicted of a crime or has
committed an act which raises a reasonable
question as to the individual’s moral character
 Superintendents must file with the Commissioner
a copy of the “Child Abuse in an Education
Setting” report where the subject is a certificate
holder
SOURCES OF COMPLAINTS
MANDATORY REPORTING
Duties of Other Individuals
 District Attorneys must report information that a
certified individual has been convicted of a sex
offense or a school administrator has been
convicted of defrauding the government
 Employees of school districts, charter schools
and BOCES must report and known incident of
testing misconduct by a certified individual, or
known misconduct by a non-certified individual
that may violate Education Law §225
NEW
SOURCES OF COMPLAINTS
APPLICANT SELF REPORTS







Cer tificate Application Questions
Have you ever been dismissed from, resigned from, entered into a
settlement agreement, or other wise lef t employment to avoid investigation
and/or dismissal for alleged misconduct ?
Are you the subject of any pending investigation and/or disciplinar y
charge(s) per taining to employment ?
Have you ever been found guilty af ter trial, or pleaded guilty, no contest,
nolo contendere, or had adjudication withheld to a crime (felony or
misdemeanor) in any cour t ?
Do you currently have any criminal charge(s) pending against you?
Have you ever had an application for a teaching, professi onal or vocational
credential (i.e., license, cer tificate or registration) in New York or any other
jurisdiction denied ?
Have you ever surrendered a teaching, professional, or vocational
credential (i.e., license, cer tificate or registration) or had such credential
revoked, suspended, invalidated or other wise subjected to a disciplinar y
penalty in any jurisdiction ?
Are you the subject of any pending investigation and/or disciplinar y
charge(s) for professi onal misconduct in any jurisdiction?
SOURCES OF COMPLAINTS
NON-MANDATORY REPORTING
Who May Report?
What information is reported?
General Public, Parents,
Former Students
Any information that raises a question of moral
character
Fingerprint Background
Check
• Prior criminal history (both in NYS and outside
NYS)
• Subsequent Arrests (NYS Only)
NASDTEC Educator
Clearinghouse
Certificate or licensure actions in other states
SUBSTANTIAL QUESTION OF
MORAL CHARACTER
Commissioner action only when
there is a “substantial question of
moral character”
Not Defined in the Education Law or
Commissioner’s Regulations
WHAT IS GOOD MORAL CHARACTER?
The test is not the personal moral
principles of the person making the
judgment about someone else’s conduct
The conduct is to be judged based upon
the current ethical standards viewed
through the lens of an ordinary man or
woman
(In the Matter of Michael Drexler, Par t 83 Proceeding Decision October 3,
2005 citing Posusta v. United States , 2 CAR., 285 F2d 533, 534 -535).
Part 83 ~~ 3020-a ~~ Criminal
These proceedings can be pending at the same time
Part 83
3020-a
Criminal
• Education Department
•School District
•Local Prosecutor
• Certification Proceeding
•Employment Proceeding
•Criminal Proceeding
• Preponderance of the
evidence
•Preponderance of the
evidence
•Beyond a reasonable doubt
•Hearing Officer (with
panel upon request)
•AAA arbitrator (with
panel upon request)
•No statute of limitations
•3-year limitations, except
for criminal conduct
•Generally 5 years for
felonies and 3 years for
misdemeanors
•Termination
•Loss of liberty (prison/jail)
•Revocation of certificate
or denial of application
•Judge (with jury upon
request)
WHAT CONDUCT RAISES A SUBSTANTIAL
QUESTION OF MORAL CHARACTER?
 Inappropriate conduct with students
 Conviction of serious crimes
 Misappropriation of school funds (field trip
money, club money, etc.)
 Viewing pornography on school computers
 Intimidation, bullying, verbal abuse and assault
 Substance abuse issues (nexus to school)
 Falsification of teaching credentials
 Test fraud on statewide exams
EDUCATORS = ROLE MODELS
 Educator Hold Positions of Trust
 Community, parents, students, and other educators “trust” the
educator to act in the best interest of the children they are in charge
of
 Imbalance of Power
 Adult has the ability to control the
interaction with the child
 Adult has the power to give
privileges and impose
consequences
 Child must accede, or risk
losing privileges or face
consequences
GOOD MORAL CHARACTER
 In the Matter of Drexler, a 25 year old waterfront
supervisor had sex with a 16 year old junior
lifeguard over the course of two summers. The
16 yo made a statement to police, but refused to
testify in criminal court. Drexler admitted the
conduct in a phone call with mom. Drexler’s
certificate was revoked.
 “The responsibilities of a teacher do not end at
the end of a class day…it is not the adolescent’s
desires and actions that must control the
teacher, but the teacher’s good sense and “good
moral character” that permit a proper interaction
WHAT IS GROOMING?
 strategies used to gain trust and/or admiration
of students, parents and others
 show interest, build confidence and respect
***
Skills needed to become an outstanding
educator are also the skills that enable the
educator to betray the trust and harm children
***
GROOMING Continued
 First NYS Court Decision recognizing educator grooming as a
basis for discipline - In the Matter of Randy Mudge (Appellate
Division, 3 rd Dept., December 16, 2010)
 Mudge was the baseball coach
 Had high school girls be the “statisticians”
 Just prior to or shortly after graduation, Mudge took two different
girls (one in “89 and one in “92) to a Mets game, served them wine
coolers and had sex with them in a secluded area on the way home
 Neither the Commissioner Decision, nor the Appellate Division
decision found that sexual contact occurred before graduation
 The Appellate Division af firmed the Commissioner's Decision
which stated that “…spigot of trust does not shut of f the day
following graduation….” and upheld the 1 year suspension of
his certificates
MORE GROOMING
 In the Matter of James Murray
 Engaged in a multi-year relationship with student
 Student would not cooperate with SED
 SED used circumstantial evidence to make the case
 Student’s friends testified about an email between the student and
the teacher that they had discovered
 Wife confided in her friends about her suspicion that Murray was in a
relationship with the student
 Student’s mother testified for the teacher
 Murray’s certificates were revoked
INAPPROPRIATE CONDUCT
WITH STUDENTS
 Developing “special” relationships, giving student extra
privileges
 Sharing personal information and giving advice on non -school
related issues (marriage, boyfriends, sex, mental health,
suicide, etc.)
 Engaging in private communications on non -school related
issues (via text, cell phone, social media, greeting cards,
letters, emails, IM’s)
 Giving and receiving gifts
 Contact of f school grounds for non -school related events
(movies, dinner, shopping)
 Transporting students in a private vehicle (clandestine v. open
and notorious)
 Treating student as a “peer” rather than maintaining student teacher boundaries
 Developing relationship with parents to enable greater access
to student
FAILURE TO REPORT
 In the Matter of Karli Murray (Commissioner Decision, December 29,
2011)
 Stood by her man
 Was the cheerleading coach
 Suspected her husband (then fiancé) was having a sexual relationship with a
student
 Was shown an email from the husband to the student by friends of the
student
 Berated the cheerleading squad for spreading rumors about her husband and
the student (the student and her friends were all members of the
cheerleading squad).
 Did not report the email from her husband to the student to school
administrators
 She breached her duty to be a role model and ignored her
obligation to repor t such information to school of ficials
 2 year suspension of her cer tificates
PORNOGRAPHY ON SCHOOL COMPUTERS
 In the Matter of Stephney (Commissioner Decision, August 23,
2007)
 Stephney was a 2 nd grade teacher
 On 6 separate dates, he sought out and accessed adult pornography
on his classroom computer
 Caught when confronted by the IT Coordinator
 Admitted that he didn’t do it at his house because he did not want to
risk his children viewing the images
 Commissioner revoked
 In the Matter of Henery (Commissioner Decision, August 31 ,
2007)





Henery was an administrator
Sent sexually explicit joke containing a nude female to a subordinate
Visited school to try to erase information from school server
Extensive porn on his school computer
Commissioner imposed a 5 year suspension
LEWDNESS
 In the Matter of Wayne Wiggs (Commissioner Decision,
February 27, 2013)
 Wiggs, a BOCES administrator was found guilty of Public Lewdness (B
Misdemeanor) after a trial.
 Conduct occurred in a public park during the day
 “teachers are obligated to serve as behavioral examples for
impressionable youngsters. Criminal convictions erode an
individual’s ability to guide students toward respect for the law, an
essential component of an orderly democratic society.”
 Poor judgment and lack of impulse control
 Commissioner revoked
MORALLY REPREHENSIBLE BEHAVIOR
 Adult Sex on School Grounds
 In the Matter of Hafer (HO Decision August 27, 2012)
 Sex on a regular basis during school day in the classroom
 Witnessed by the custodians
 2 year revocation
 In the Matter of Redmond (Commissioner Decision July 25, 2013)





Administrator having sex with subordinate
Sex over a period of several years with secretary
Used the school email to send sexually graphic emails to
Emails discussed having sex in daughter’s bed
Commissioner revoked
MORALLY REPREHENSIBLE BEHAVIOR
 In the Matter of ECR (Pending)




Gang raped a 17 yo girl
Sexually abused a family friend
Sexually assaulted a girl in Florida
Hearing Officer recommended revocation ….waiting on Commissioner
Decision
 Partners in Crime
 Sexual relationship with 17 yo female student
 Made a sex tape
 After relationship went south and while the Part 83 proceeding was
pending, teacher's friend (another teacher) demanded the return of
the sex tape at the victims place of employment
 Both teachers surrendered
MORALLY REPREHENSIBLE BEHAVIOR
 In the Matter of Moro (Appellate Division, 3 rd Dept,
February 25, 2010)
 Blindfolded 8 th grade music student for a lesson
 Masturbated during lesson
 Student witnesses behavior when the blindfold
slipped
 Criminal charges for Endangering the Welfare of a
Child were dismissed
 SED pursued same conduct
 Certs revoked after a hearing, and two appeals
 No inherent HO bias based upon female
misperception of the operation of the manual sexual
LACK OF CARE
 In the Matter of Shannahan (3020-a Decision, August 9, 2003)
 Failure to exercise due care
 Brought an intoxicated 16 yo female to the wrong house at 3:00 in the
morning wearing nothing but a potting soil bag.
 Criminal charges dismissed
 Found guilty of negligence and conduct unbecoming a teacher. She was
order to pay a $5,000 fine.
 SED settled for a 1 year suspension
 In the Matter of Klinger (HO Decision, March 8, 2002)
 Brother raped a stranger
 Helped brother provide transportation home
 Dropped scantily clad bleeding victim off in the middle of a street in winter
with no coat or shoes
 Convicted of Reckless Endangerment
 Certs revoked
COMPUTER FRAUD
 Matter of D’Amato (Commissioner Decision March 7,
2008)
 Original internet spammer
 Created fake internet persona (alter-ego) to satisfy
his tickling fetish
 Was a high school administrator
 Got cooperation from a few HS students in another
community
 When students grew tired of situation, D’Amato email
“bombed” their accounts and threatened to expose
them,
 Convicted of Computer fraud and Abuse
TESTING MISCONDUCT ON REGENTS
 In the Matter of Jeudy (Commissioner Decision, May
26, 2006)
 Removed an answer key the night before a Regents
exam and gave the key to his son.
 Pled guilty to official misconduct
 In the Matter of Musto (Commissioner Decision,
March 6, 2006)
 Admitted changing student answers on exams
 Believed he was helping students
 Certs revoked
DISCIPLINE ADVERSE OUTCOMES
(Current through 10/21/2014)
2010
2011
2012
2013
2014
Surrender
79
101
65
73
69
Revoke
41
45
35
55
44
Deny
19
20
10
19
11
9
2
9
19
9
Suspend
EDUCATION LAW §215

§215. Visitation and reports. The regents,
or the commissioner of education, or their
representatives, may visit, examine into
and inspect, any institution in the university
and any school or institution under the
educational supervision of the state, and
may require, as often as desired, duly
verified reports therefrom giving such
information and in such form as the
regents or the commissioner of education
shall prescribe.
SELECTED SAPA PROVISIONS –
STAY OF EXPIRATION OF LICENSE
 SAPA §401(2) provides: when a licensee has made
timely and sufficient application for the renewal of
a license or a new license with reference to any
activity of a continuing nature, the existing license
does not expire until the application has been
finally determined by the agency
 Application must be:
 Timely – filed prior to expiration of previous certification
 Sufficient – meets all of the requirements
 Continuing – must be in the same certification area
(certification progression or time extension)
TEACHER TENURE HEARINGS
 Tenured educators have the right to retain
their positions and may only be terminated if
there is “just cause” pursuant to Education
Law §3020. The rules specifying the process
for terminating a tenured educator are set
forth in Education Law §3020-a. This process
was significantly modified effective April 1,
2012, by Chapter 57 of the Laws of 2012.*
*
Education Law §3020(3) permits the NYCDOE to modify the
provisions of Education Law §3020-a through the collective
bargaining process. As a result many of the timeframes set
forth in the statute do not apply to NYCDOE.
3020-A REFORM LEGISLATION
April 1, 2012
Two goals
Reduce Length of Time for Cases
Reduce Costs
§3020-aTimelines a/k/a Fuzzy Math
Request
Hearing
10 Days
Serve
Charges
1st Day
Days Elapsed
1st Day
Serve
Charges
Pre-Hearing
Conference
65 Days
Select
Arbitrator
45 Days
Final Hearing
Date
125 Days
Statute
10 Days
Request
Hearing
109 Days
Select
Arbitrator
Issue Decision
155 Days
Reality
279 Days
Pre-Hearing
Conference
529 Days
Final Hearing
Date
Reality = Current Statewide Average (2011)
653 Days
Issue
Decision
REDUCE TIME
SIGNIFICANT CHANGES
Hearing Officer Selection: 15 th day (from
list creation)
Evidence: 125 th day (from Board vote)
Decision: 30 days (from last hearing
date)
15 DAY RULE
HEARING OFFICER SELECTION
 Parties must choose the hearing officer within 15
days from the date the list is created
 TEACH facilitates this by making the list instantly
available.
 Each party must make the same selection within 15
days.
 If selections do not match by the 15 th day, the
Commissioner chooses
 First Criteria: least expensive Hearing Officer
 Second Criteria: if two Hearing Officers share the
same rate, then the choice is the one that is
geographically closest
125 DAY RULE
PROHIBITION ON EVIDENCE
A significant change is the prohibition on the
introduction of evidence more than 125 days
after the filing of charges unless there are
extraordinary circumstances beyond control
of the parties
30 DAY RULE
ISSUANCE OF DECISION
 The Hearing Officer must issue a decision within 30
days of the last day of the hearing
 Failure to comply with the timelines may be grounds
for removal from the list of hearing officers
 The 30 day time period is not extended for the
submission of post hearing briefs
 Reminder: post hearing briefs are not evidence and
are therefore unaffected by 125 day rule
REDUCE COSTS
SIGNIFICANT CHANGES
Establish maximum rates of compensation for
arbitrators
Commissioner set maximum rates in a field
memo
Issued billing guidelines for travel and other
expenses
Pay new claims first
GOAL OF TEACH MODIFICATIONS
 Assist in managing new requirements
 Business process reconfigured
 Eliminate delays caused by manual process
 Design paperless system
 Keep track of tight timelines
 Accommodate need for reports on success of
changes
HOW DO TEACH
CHANGES HELP?
 Multiple users
 Automated emails to trigger the next step in the process
 All parties can upload relevant documents (charges,
transcripts, decisions)
 Greatly reduces manual SED processes
 Eliminates paper files
 Online voucher creation
 Online voucher auditing
 Future – can accommodate transcript changes
TENURE CASES STATEWIDE SUMMARY
Statewide Summary (Based on FY Commenced) *As of April 30, 2014
2012-2013
2013-2014
Total Cases
572
525
Total Closed Cases
525
274
Total Open Cases
48
251
Days For Decision (NYC)
288
190
Days for Decision (ROS)
186
177
Days for Settlement (NYC)
143
103
Days for Settlement (ROS)
101
94
CASE OUTCOMES*
(BASED ON FY CASE COMMENCED)
(AS OF APRIL 30, 2014)
Case Outcomes 2012-2013
Case Outcomes 2013-2014
NYC
ROS
Decision
33
16
76
Settled
122
81
26
44
Withdrn/Consol
5
11
36
12
Pending
199
50
Waived Hearing
3
4
Waived Hearing
0
2
Total Outcomes
416
157
Total Outcomes
359
160
NYC
ROS
Decision
96
21
Settled
255
Withdrn/Consol
Pending
AVERAGE DAYS TO DECISION BY T YPE
ROS 2012-2013 Decisions
ROS 2013-2014 Decisions
#
Days
#
Days
Termination
7
186
Termination
9
159
Suspension
7
187
Suspension
3
146
Fine
2
201
Fine
1
226
Other
1
215
Other
2
204
Susp & Fine
1
175
Susp & Fine
1
149
Not Guilty
3
152
Not Guilty
0
0
21
186
16
177
AVERAGE DAYS TO OTHER OUTCOMES
ROS 2012-2013
ROS 2013-2014
#
Days
Settled
76
101
Withdrn/Consol
44
113
Waived Hearing
4
Pending
Total Other
12
136
#
Days
Settled
81
94
Withdrn/Consol
11
86
Waived Hearing
2
Pending
Total Other
51
145
~QUESTIONS~