Why Doesn’t New Rochelle Immediately Fire an Employee Who Commits a Crime?

In the wake of our repeated disclosures of wrongdoing by school employees, many New Rochelle residents are asking why these employees are left on the district payroll.

In the weeks since we first broke the “sexting” case, many Albert Leonard Middle School parents have expressed anger and a sense of betrayal by Principal Bill Evans who sent out a letter to parents on February 6th urging parents to have a discussion with their children about the dangers of sexting without disclosing the incident the prompted the letter.

“Bill Evans has been a great principal who has done many good things in his time at Albert”, said one parent who asked not to be identified, “so I am very disappointed that he would have sent out that letter without sharing why it was sent. My trust in him has been shaken.”

In addition to the sexting case, Talk of the Sound has reported four cases of employees assaulting students, misappropriation of school property, no show jobs and much more yet, except for the substitute gym teacher, all continued to be employed by the District.

All disciplinary matters in the school district are covered by New York civil service law and state and federal rights to “due process”. In the sexting case, the guard has not been convicted of any crimes although a conviction is not necessary to suspend or dismiss a district employee.

Although it does not generally apply to members of a collective bargaining unit, the F.U.S.E. contract specifies that disciplinary proceedings against union members must follow Article 75 of the New York State Civil Service law.

A few key points follow:

CSL § 75.1: Employees who are subject to the provisions of Section 75 may not be removed or otherwise subjected to disciplinary penalty except for incompetency or misconduct established after a hearing on stated charges.

POL § 61: Frequently, charges are preceded by an investigation by the appointing authority. It is well established that an appointing officer has the right to question an employee with respect to matters involving or affecting job performance and that an employee is obligated to answer such questions. Refusal to answer constitutes insubordination. The appointing officer may question the employee under oath, and have the questions and answers recorded. Any employee, including managerial/ confidential, who appears to be a potential subject of disciplinary action, has, at the time of questioning, a right to representation and shall be notified in advance, in writing, of this right.

CSL § 75.2: 75.4 Charges of misconduct or incompetency, under Section 75, must be brought within 18 months of the act or omission unless the charge would constitute a crime if proved in a court of competent jurisdiction. For managerial/confidential employees or those employees covered by a collective bargaining agreement, the period is reduced to one year. The charges must be in writing and sufficiently specific to apprise the employee of what he/she is being charged with to enable him/her to defend him/herself. The charges may be served on the employee personally or by mail. The individual is then entitled to at least eight days in which to answer the charges in writing.

Due process rights do not, however, include a so-called “right to privacy” as is often asserted yet the District routinely invokes “privacy concerns” as grounds for not providing parents or the public with information about wrongdoing by school employees and to justify the capriciously applied “ban” on discussing school employees during the public comment period at school board meetings (the board routinely allows the public to discuss school employees so long as the speaker is praising the employee). Recent public comments made by Schools Superintendent Richard Organisciak to the Journal News in the “gym teacher chokehold” case put the lie to this claim; Organisciak spoke on the record to Aman Ali about Daniel Sanabria although he incredibly claimed that Sanabria was NOT an employee of the District even though he was on the approved list of substitute teachers and was paid by the District going back to 2008.

Civil service laws also do not preclude referring wrongdoing to law enforcement including Child Protective Services, local police or the District Attorney’s office. If school employees are convicted of a crime they can be summarily dismissed and so “due process” considerations go by the way side. The District did call NRPD in the Sanabria case and have had no problem calling the police when students are involved such as the original sexting case or drug cases or theft or stabbings, etc.

In any setting, a failure to evenly apply the rules leads to chaos, which goes a long way to explaining the incoherent administration of our public schools. I am not a labor lawyer so perhaps readers can fill in any blanks or correct any errors in this analysis.