*****NEW****Click on link below to be directed to the Hodgson Russ Legal Bills Jan- May 2016- THE FLEECING OF THE TAXPAYER.

Friday, April 22, 2016

"Justice delayed is Justice denied"

On April 22, 2016, the Buffalo News reported that the Hamburg School District violated laws when placing Hamburg Teacher M. Kavanaugh on paid leave in January 2014.   Concerned Hamburger has "cut and pasted" the Commissioner's decision- below (in black) .  Please note, it appears from the caption, that Kavanaugh represented herself  pro se ( no lawyer).  
The District was represented by Andrew Freedman of Hodgson Russ,  who readers will remember  from his appearances and zany behavior the public hearings of 2014 (Hodgson Russ lawyer no. 2 in March 25, 2016 post).    

According to the News, Hamburg School Superintendent M. Cornell,  who is just over one year in his overpaid position,  had NO COMMENT in response to the Commissioner's decision.  Cornell, who brought charges against Kavanaugh, has been silenced by Commissioner's decision.   

In an notable pattern of narcissistic personality disorder,  when anyone disagrees with Cornell and his corrupt board, that person is targeted with aspersions. To that end, Concerned wonders how long it will take the Superintendent and the Board to accuse New York State Education Commissioner Elia of misconduct or wrong doing for her decision in this matter.  

The NYSED Commissioner's decision reveals, that the rights of Kavanaugh end,  where the feelings of the Boars and Cornell begin. 

Appeal of MARTHA  KAVANAUGH from action of the Board of Education of the Hamburg Central School District, Michael Cornell, as superintendent, and Richard Jetter and Vincent Coppola, former superintendents, regarding teacher discipline.

Decision No. 16,897
(April 11, 2016)

Hodgson Russ, LLP, attorneys for respondent, Andrew J. Freeman, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Hamburg Central School District (“respondent board”) to place her on administrative leave and/or suspend her with pay.  The appeal must be sustained in part.

Petitioner is a tenured teacher employed in the Hamburg school district since August 2002.  At its meeting on January 14, 2014, respondent board voted to place petitioner “on paid administrative leave commencing [January 15, 2014].” By letter dated January 15, 2014, Interim Superintendent Richard Jetter notified petitioner of respondent board’s action and indicated that the board was investigating petitioner’s conduct as a school district employee.  The letter stated, “[w]hile on leave, you are not permitted on District grounds, including any school buildings.”  During that period, petitioner was assigned curriculum projects to complete, apparently from her home.  By letter to petitioner’s counsel, dated October 7, 2014, respondent board’s counsel stated that, “the District’s investigation into [petitioner’s] possible misconduct is ongoing and she will remain on administrative leave in the meantime....You will be advised when the District is prepared to take action on this matter.”  Approximately five months later, at its regular meeting on March 2, 2015, respondent board voted to continue “the suspension” of petitioner “pending further action of the Board of Education.”

It appears from the record that, on June 25, 2015, the district’s new superintendent, Michael Cornell, issued a memorandum to petitioner regarding her performance on the curriculum projects.  The memorandum apparently was placed in petitioner’s personnel file.
As a result of the district’s investigation, on September 2, 2015, respondent board preferred charges against petitioner pursuant to Education Law §§3020 and 3020-a.  Petitioner was served with a notice of the charges on or about September 3, 2015.  The charges set forth in the notice include incompetence/neglect of duty and insubordination.  The record indicates that petitioner requested an administrative hearing on the charges which appears to be pending.  This appeal ensued.  Petitioner challenges respondent board’s action placing her on “administrative leave” on January 14, 2014, and continuing her “suspension” on March 2, 2015, in the absence of disciplinary charges.  Petitioner does not herein challenge the §3020-a charges preferred against her by respondent board that are the subject of the administrative hearing.  Petitioner asserts that, on January 14, 2014, respondent board unlawfully placed her on administrative leave without filing charges against her and, thereafter, on March 2, 2015, unlawfully extended her suspension absent any charges filed.  She contends that such action should be declared null and void.  Petitioner seeks reinstatement to her former position.  She also seeks expungement of any reference to the alleged unlawful suspension or to any disciplinary actions relating to that period of time.  Additionally, petitioner seeks reimbursement of legal fees incurred as a result of the suspension; a declaration that respondent board’s actions violate both the Education Law and the members’ oath of office; a reprimand of respondent board and Superintendent Cornell; and an order directing respondents board and Cornell to publicly apologize to petitioner.
Respondents contend that petitioner’s placement on administrative leave by respondent board was proper in all respects, that petitioner has failed to establish that respondents acted in an arbitrary and capricious manner, and that petitioner has failed to state a claim.  Respondents also assert that the appeal must be dismissed for lack of standing, as untimely, and for failure to join necessary parties.

I will first address several procedural matters.  Initially, I find that petitioner has standing to maintain the appeal.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Respondent board’s action challenged by petitioner clearly affected petitioner directly and she is asserting an adverse effect upon her personal and property rights as a result of being removed from her teaching duties.  Consequently, I find petitioner has standing to maintain the appeal.

I also decline to dismiss the appeal for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Although respondents include this defense in their answer in a conclusory manner, they fail to provide any further elaboration and do not address it at all in their memorandum of law.  Petitioner seeks relief herein as against respondents board, Cornell, Jetter and Coppola.  Each has been named in the caption of the appeal and served with a copy of the notice of petition and petition.  Consequently, it appears that all parties necessary to a determination of the appeal have been properly joined and dismissal for failure to do so is not warranted. 

With respect to respondents’ objection as to timeliness, the appeal must be dismissed only in part, as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). 

To the extent that petitioner complains of the propriety of the June 25, 2015 memorandum that was placed in her file and pertains to the assignments she was given while on leave and/or suspension, petitioner’s appeal is untimely.  Petitioner commenced this appeal approximately three months after the issuance of the memorandum and offers no legal excuse for the delay.  Accordingly, that part of the appeal is untimely and must be dismissed.
However, petitioner’s challenge respondent board’s action on January 14, 2014 and March 2, 2015 placing her on leave and/or suspending her with pay, however, will not be dismissed as untimely, as such action, if proven, would constitute a continuing wrong.  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]).

In this appeal, petitioner alleges that she was unlawfully placed on administrative leave and/or suspension with pay without any charges preferred against her under Education Law §3020-a.  Suspension of a tenured teacher requires a board of education to file written charges with the clerk or secretary of the board (Education Law §3020-a).  Suspension of a tenured teacher without the filing of such charges is ultravires and, thus, constitutes a continuing wrong (see Appeal of McCall, 33 Ed Dept Rep 148, Decision No. 13,005).  Consequently, I decline to dismiss that part of petitioner’s appeal challenging respondent board’s January 14, 2015 and March 2, 2015 actions as untimely.

Turning to the merits, on January 15, 2014, respondent board voted to place petitioner on paid “administrative leave” and petitioner was notified by respondent Jetter that the purpose of such action was to “investigate petitioner’s conduct as a district employee.”  Petitioner remained on administrative leave for over a year with no charges preferred against her.  Petitioner was assigned curriculum projects but was not permitted on district grounds at any time.  She was also advised that there was no need to consult with any of her colleagues.  More than one year later, on March 2, 2015, respondent board voted to continue “the suspension” pending further board action. Respondent board did not prefer §3020-a charges against petitioner until September 2015.

As noted above, the suspension of a tenured teacher requires the board of education to file written charges within a reasonable amount of time, and that the suspension without the filing of charges is ultra vires and in violation of the individual’s tenure rights (see Appeal of McCall, 33 Ed Dept Rep 148, Decision No. 13,005; Appeal of Williams, 37 Ed Dept Rep 643, Decision No. 13,947).  In this case, petitioner was suspended more than 19 months before respondent preferred charges against her.  During that time she was prohibited from coming on school property and could not consult with her colleagues.  While the board correctly asserts that a board of education has the right to place an employee on administrative leave pending an investigation and/or pending disciplinary charges being filed against the employee, on this record, I find that respondent board’s actions constitute an unlawful suspension in the absence of the timely filing of disciplinary charges.  Because respondent board did not act within a reasonable amount of time to prefer charges against petitioner after removing her from teaching duties, such removal must be deemed null and void and expungement is warranted.
To the extent that petitioner seeks an award of costs and fees, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).

Moreover, to the extent that petitioner seeks an order directing respondents board and Cornell to issue an apology, the Commissioner lacks authority to order a board of education or school district employee to do so (Application of McDougall, 42 Ed Dept Rep 195, Decision No. 14,819; Appeal of Phillips, 41 id. 10, Decision No. 14,595; Appeal of Lloyd, 39 id. 537, Decision No. 14,303).  Finally, there is also no provision in the Education Law authorizing the reprimand of board members by the Commissioner of Education (Appeal of Ewart, 44 Ed Dept Rep 147, Decision No. 15,127).

IT IS ORDERED that any and all references to the January 14, 2014 placement of petitioner on administrative leave and March 2, 2015 suspension be stricken from petitioner’s records and personnel files.  However, nothing herein shall be construed as nullifying respondent board’s September 2, 2015 action to prefer charges pursuant to Education Law §3020-a.


Anonymous said...

The Board just won't leave her alone. Its abusive. Everyone knows its TomFlynn- he is a sick man for sure.

Anonymous said...

Well, since no one in the Hamburg community had the inclination to run for a school board seat you really have nothing to say about the board. You care enough to type up come complaints and post them online but don't care enough to actually do anything.
I don't know who is setting the worse example for young people in the community-- the board or the people on this blog.

Anonymous said...

Why would anyone run for the school board and face the wrath of Dan Chiacchia. Look what he did to the guy that ran in 2013, and to Amy last year. He is a rotten creature who
Posts shit on his Facebook basically intimidating anyone who
Would interfere with his agenda. I know some people who talked about it, and all of a sudden they were getting phone calls from
Dan and Flynn. This is called intimidating. Look what dan and his group
Of rather insane followers did to
Forcucci because she wanted the Harris beach legal records... And God forbid she ever delve into hurwitz fine and Brandis records. Dan all
Of a sudden appeared, like a jack in the box, when he thought someone might be getting too knowledgeable! So, why would anyone run? Why would anyone
Ever face the hate of the hateful trump follower Flynn? You're dealing with some gutter rats in Hamburg. Flynn is a real sicko- did he graduate from high school? So, no one ran and no one cares- it's too difficult to get past the bully's with a single agenda to get this teacher. Cornell is so
Stupid- and hungry for his insane pay that he'd do anything. Just like Jetter, achramawich Roswell. The only two decent guys were Crawford and Coppola. Cornell is as dirty as Steve and Jetter. So yeah- why bother.

Anonymous said...

1:56 guess you don't have kids in the district.

Concerned Mom and Teacher said...

Well how do you like that. An illegal suspension. Now, this is interesting because Elizabeth McPhail of Hodgson Russ told the Board that it wasn't illegal. Thats why, if you look at the March 2nd BOE minutes, she tries to cover the district by voting again. Except, she apparently musta skipped that law school class on school law, and advised the board to break the law again. Now, I am not sure how a lawyer who makes over 250 per hour could have such a terrible lapse of judgement, or knowledge, but it seems to me that she could have "googled it" and realize how bad the advice is. So, its not like the teacher didn't tell the district it was illegal. She told me she told them every chance they gave her to talk to them, because they wouldn't allow her to approach them without JamES Martinez calling the cops. So, this wasn't an error people, who read this blog, it was an out right intended violation of the law. And you think you have a stable board? If they break the law blatantly with personnel, can you imagine what is going on with the other budgets? Like lets take one look at the busing contract of 5 years? Lets have a look at whats going on there? Or the fact that we have NO SUBSTITUTES- and AIDS are covering class I might add illegally. Then they have the balls to blame MK because they don't have subs? Or open house? Seriously, its not in the contract as far as I can remember. So, lets dig into this one, because heads should roll for this sick agenda. The parents of St Peter and Paul, imagine... if they spent the money on getting your kids to school safely? Or created more electives for our HHS kids, and reduced the class sizes in the middle school nd high school. kids are sitting in study halls- with NO teachers in them- and this board is spending this kind of money chasing rainbows. Its criminal.

Embarrassed HHS Teacher said...

They don't let her on district grounds because she didn't go to open house. Sounds like this was letters paranoia. Lesson Plans for subs, this just came up with the union and we were told we did not need to leave full Article 7 lesson plans, so why did they tell her she had to? And the correcting of exams- thats an odd one because I saw her sitting in the library correcting, and am pretty sure that she and a hand full of other teachers were the only one working. Pretty sure some of the last guys in that department were being loud and obnoxious with kids in the library making up work. Too bad there weren't more people called in to testify, pretty sure the district would be more embarrassed than they are now. Unreal. Leave her alone for this is nothing more than the bullying we try to get the kids to stop doing. what an embarrassment for Hamburg again. And just think the stevensons and forcucci are off the board- could it be it wasn't them in the first place. Embarrassed to say the least.

Anonymous said...

10:17 don't forget about denying special education students their services because their teachers are pulled to cover other classes. Or not hiring special education subs with the right certifications for long-term positions so social studies teachers are teaching English classes to kids with special needs. Or the administration being pulled out every other day to go to meetings and special Ed kids literally running through the halls because their "point person" administrator is gone. Or Academic intervention services not starting until the third quarter because the admin in charge couldn't find the time to put things together. Or the cancellation of the homework assistance program and instead having those kids go sit in detention with the non-academic offenders. Or cancelling resource rooms because there aren't teachers to watch study halls. Or closing the learning center, the high schools tutoring center because they don't want to have a staff member in there to run the place. The list goes on and on of what Hamburg used to do to help kids, but no longer does.
Hamburg needs to wake up and smell the coffee. They aren't doing what's right for kids.

Anonymous said...


PAUL I. PERLMAN/HODGSON RUSS, LLP Attorney Type: Attorney Of Record Atty. Status: Active

ELIZABETH MCPHAIL/HODGSON RUSS, LLP Attorney Type: Attorney Of Record Atty. Status: Active

MELANIE BEARDSLEY/HODGSON RUSS, LLP Attorney Type: Attorney Of Record Atty. Status: Active

Anonymous said...

So, I follow this case and I see it was moved from Mikalek to Marshall. What did Mickalek get money from Hodgson Russ and CHA? Well if you look at Marshalls judicial contributions the midget Dan CHA, lurker extraordinaire, gave money this guy too, and isn't his law clerk embroiled in hamburg politics. File a judicial ethics complaint, and a attorney grievance shoulda been filed on CHA a long time ago. He release documents that were under a court order sealed, to Don Ogivile. Thats the fact Jack. No shortage of sleazy lawyers in these parts. But I figure that won't go un addressed by the likes of this crowd. Right.