Opinion
106696/09.
February 19, 2010.
Petitioner Dr. Tulsa Knox, a school psychologist, commenced this Article 78 proceeding to annul the determination by respondent New York City Department of Education (DOE) that Dr. Knox is ineligible for re-employment. In the alternative, Dr. Knox seeks a name-clearing hearing to dispute the stigmatizing charges which were the basis for the determination. DOE has moved to dismiss the proceeding for failure to file a notice of claim. Further, DOE disputes that Dr. Knox is entitled to a hearing.
Background Facts
Dr. Tulsa Knox has been a certified school psychologist since 1985, and she obtained her Doctorate in Psychology from New York University in 2005. She worked as a school psychologist for DOE in the City schools from 1986 until she resigned voluntarily in September of 2008 to assume a position in Greenwich, Connecticut. At the time, Dr. Knox was eligible for re-employment with the City should she decide to return.
About two months later, in November 2008, the DOE contacted Dr. Knox and advised her that she was being investigated for alleged abuses of time. Dr. Knox met with DOE Special Investigator Michael Humphrey who advised Dr. Knox that she was being accused of having been absent from work on four specific days in September, the final month of her employment. In response, Dr. Knox provided details to confirm her assertion that she had, in fact, reported to work on the days in question.
Thereafter, the DOE sent Dr. Knox a letter dated January 15, 2009 (Exh. A to Petition). The letter advised Dr. Knox that, effective January 15, 2009, she had been placed on the DOE's "Ineligible/Inquiry List" based on "Inappropriate Conduct."
Dr. Knox retained counsel who wrote to the DOE on January 29, 2009 (Exh. B to Petition). There counsel disputed the finding, not only on the merits but also because Investigator Humphrey had purportedly told him on January 8 that the case was being closed without any finding against Dr. Knox. Counsel concluded by demanding that DOE annul its determination.
By letter dated February 12, 2009, DOE insisted that its determination was substantiated by information obtained during the investigation. With the letter, DOE sent counsel a copy of the three-page investigative report reflecting the conclusion that "without notice or explanation, Tulsa Knox failed to appear for work on a number of occasions in September 2009." The report further recommended that Dr. Knox be made ineligible for re-employment with DOE and that DOE take steps to recover the salary payments for the days in question. Lastly, the report indicated that the findings were being referred to the Bronx County District Attorney. Dr. Knox then commenced this Article 78 proceeding by filing on May 12, 2009.
No Notice of Claim is Required
Relying on Education Law § 3813(1), the DOE argues that this proceeding must be dismissed because Dr. Knox failed to file a notice of claim with the Department within three months of the accrual of her claims. According to the DOE, petitioner's claim accrued on January 15, 2009 when it sent the letter advising Dr. Knox that she was being placed on the Ineligible/Inquiry List due to inappropriate conduct. Assuming that date is accepted, petitioner was required to file a notice of claim by April 19, 2009, the DOE contends.
Dr. Knox acknowledges that she did not file a notice of claim before commencing this proceeding on May 12, 2009 or at any time thereafter. She insists, however, that no such notice is needed where, as here, the petitioner is not seeking monetary damages. Should the Court require a notice of claim, Dr. Knox argues that counsel's January 29 letter should suffice. In the alternative, Dr. Knox urges either that the thirty-day period be calculated from the DOE's February 12, 2009 response to counsel's letter and that the timely filing of the petition on May 12 be accepted as a timely notice of claim, or that the petition be construed as having included a timely application for leave to file a late notice of claim, even if based on the January 15 letter.
While a notice of claim must be filed within 90 days of the accrual of the claim, an application for leave to serve a late notice of claim must be filed within the statute of limitations for the Article 78 proceeding, which is four months from the determination. See, CPLR § 217 and Educ. Law § 3813(1).
The statute cited by the DOE states in relevant part that:
No action or special proceeding, for any cause whatsoever
. . . or claim against the district or any such school, or involving the rights or interest of any district or any such school shall be prosecuted or maintained against any school district, board of education . . . or any officer of a school district [or] board of education . . . unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim, and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment. [Emphasis added].
As this Court discussed at some length in Kahn v Department of Education of the City of New York, 26 Misc.3d 366 (Sup. Ct., NY Co. 2009), while the statute arguably begins with broad language, it ends with language indicating that the Legislature intended that the notice of claim requirement be limited to actions that involve monetary, rather than equitable, relief. This limitation was emphasized by the Second Department in Ruocco v Doyle, 38 AD2d 132, 133 (1972), which was cited with approval by the Court of Appeals in Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 NY2d 361 (1974), rearg denied 36 NY2d 807, which in turn was relied upon by the Court of Appeals in 1996 in Cayuga-Onondaga Counties Bd of Co-op Educational Services v. Sweeney, 89 NY2d 395, 400.
Dr. Knox in the instant case seeks to clear her name, but she has not requested money damages. Further, since the charges were brought after she had left City employment, no claim for wages can be inferred. Therefore, based on the holdings discussed above, no notice of claim is required, and the Court need not address the alternative arguments made by the parties.
The cases cited by the City do not compel a contrary result. For example, in Parochial Bus Systems, Inc. v Board of Education of the City of New York, 60 NY2d 539 (1983), the plaintiff was seeking to recover moneys allegedly owed to it under a contract with the Board of Education to provide bus transportation for school children. Similarly, in Alfred Santini Co., Inc. v City of New York, 266 AD2d 119, 120 (1st Dep't 1999), a notice of claim was required because the case involved a "claim for payment from the Board of Education". The Second Department did require a notice of claim in Silvernail v Enlarged City School Dist. of Middletown, 40 AD3d 1004 (2007), presumably because the requested relief — reinstatement as a tenured teacher — had monetary implications. Significantly, however, the court did expressly acknowledge (at p 1005) that actions in the nature of mandamus seeking "judicial enforcement of a legal right derived through enactment of positive law" (i.e, equitable rather than monetary relief) were exempt from the notice of claim requirement in Education Law § 3813.
For these reasons, that part of the DOE's motion which seeks dismissal based on the failure to file a notice of claim is denied.
Petitioner is Entitled to a Name-Clearing Hearing
In the second prong of its motion to dismiss, the DOE contends that Dr. Knox is not entitled to the name-clearing hearing that she has requested in this proceeding. As the DOE acknowledges in its Memorandum of Law (at p 8), such a hearing is the appropriate remedy for the deprivation of a constitutionally protected liberty interest in reputation. Codd v Velger, 429 US 624 (1977). In the context of public school employment, the publication of false stigmatizing statements about an employee upon the termination of her employment implicates a liberty interest. See, McPherson v New York City Department of Education, 457 F3d 211, 216 (2nd Cir. 2006); see also, Swinton v Safir, 93 NY2d 758, 763-64 (1999) (involving public employment with the Police Department). The purpose of the name-clearing hearing is to afford the employee an opportunity to prove that the stigmatizing material is false and to have it expunged from the records. Swinton, supra, at fn1.
Relying on McPherson, supra, the DOE contends that Dr. Knox has not satisfied the requirement of demonstrating that the statements were "published." In McPherson, the Second Circuit held that the placement of a teacher's name on the "Ineligible/Inquiry List did not satisfy the publication requirement, where the DOE had claimed that the grounds for its determination remained confidential and the plaintiff had failed to prove otherwise. 457 F3d at 216-17.
The DOE's argument is unavailing on a number of grounds. First, McPherson is distinguishable on the facts, as we have no statement here from a DOE employee based on personal knowledge asserting that the grounds for its decision regarding Dr. Knox have remained confidential. Quite the contrary, in the four-page report prepared by the Special Commissioner of Investigation for the New York City School District (Exh C to petition), not only are the allegations of theft of services by Dr. Knox detailed, but the report recommends that "this matter be considered should [Dr. Knox] apply for any position in a New York City public school in the future." Further, the Commissioner expressly stated that he was referring the findings to the Bronx District Attorney.
In the opinion of this Court, Dr. Knox has satisfied the publication requirement based on the facts presented in this case. What is more, the Court of Appeals held in Swinton, that "a likelihood of dissemination is sufficient to trigger one's right to a departmental name-clearing hearing" and proof of actual dissemination is not required. 93 NY2d at 765. That holding by our State's highest court is controlling here, and the facts of this case undoubtedly establish such a likelihood of dissemination.
The Court also rejects the DOE's claim that the information is not stigmatizing. In Swinton, supra, the Court of Appeals considered charges that the defendant police officer had assaulted and attempted to rape a former girlfriend. The court found that these charges of "criminality and immoral and dishonest conduct, are stigmatizing in the constitutional sense because of their inevitable effect, if revealed, of foreclosing employment opportunities in petitioner's chosen field of law enforcement." 93 NY2d at 763, citing Board of Regents of State Colls. v Roth, 408 US 564, 573. The court distinguished charges of that nature from charges "of individual or isolated instances of bad judgment or incompetent performance of duties, correctable by learning from one's mistakes, which are not 'stigma[s] of constitutional proportions'." Swinton, 93 NY2d at 763 (emphasis in original), quoting Matter of Petix v Connelie, 47 NY2d 457, 460.
The charges in this case fall into the former category, rather than the latter. Dr. Knox is effectively being charged with theft — wrongfully collecting a salary from the DOE without providing services in return — and the DOE referred the matter to the District Attorney for criminal prosecution. The findings by the DOE Commissioner of Investigation to this effect imply findings of dishonesty and unreliability and a lack of professionalism. These findings are far more serious than charges of bad judgment or incompetent performance of duties, and can significantly impair Dr. Knox's ability to gain future employment in her profession. Thus, the information may properly be characterized as stigmatizing in the constitutional sense.
Wholly unavailing is the DOE's attempt to persuade this Court that the investigation was the equivalent of a due process hearing because Dr. Knox had been given notice and an opportunity to be heard on the charges. Due process entitles Dr. Knox to the right to call witnesses and to cross-examine witnesses adverse to her position. The DOE did not provide Dr. Knox with that opportunity during the investigation, and it is obligated to provide Dr. Knox with that opportunity now in a name-clearing hearing.
For these reasons, the DOE's motion to dismiss must be denied. As the DOE addressed all the arguments in the petition on the merits, this Court finds that the filing of an answer it not necessary and will serve no fruitful purpose.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the motion to dismiss by the respondent New York City Department of Education is denied in its entirety; and it is further
ORDERED AND ADJUDGED that the petition is granted to the extent of remanding this matter to respondent New York City Department of Education for a name-clearing hearing for petitioner Dr. Tulsa Knox in connection with the placement of Dr. Knox on the Ineligible/Inquiry List for Inappropriate Conduct and all related charges and findings.
This constitutes the decision, order and judgment of this Court.