Claimant, a school principal, alleged that he lost his job and was unable to secure employment in his chosen profession as the result of the manner in which the State Education Dept. and the Office of School Personnel Review and Accountability conducted its investigation into certain criminal charges which had been brought against him. Defendant's motion for summary judgment dismissing claim was granted because alternative remedies were available to vindicate claimant's right to due process, no cause of action for negligent investigation is cognizable; and notification to the school of claimant's arrest was required thereby requiring dismissal of his causes of action for breach of confidentiality and discrimination.
|Claimant(s):||FRANK J. VETRO|
|Claimant short name:||VETRO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Frank J. Vetro, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 8, 2010|
|See also (multicaptioned case)|
Defendant moves to dismiss the instant claim for failure to state a cause of action and for summary judgment pursuant to CPLR 3212. Claimant, proceeding pro se, opposes the motion.
Claimant was the Principal of the Hampton Bays Secondary School until his separation from employment on June 9, 2006 following the filing of certain criminal charges against him. Claimant alleges that he lost his job and was unable to otherwise secure employment in his chosen profession as a result of the manner in which the State Education Department (SED or the Department), Office of School Personnel Review and Accountability ("OSPRA"), conducted its investigation into the criminal charges.
Claimant was arrested on February 8, 2006 and charged with seven counts of Aggravated Harassment in violation of Penal Law § 240.30 (defendant's Exhibit B, Amended Claim, ¶ 1). Claimant was again arrested on June 1, 2006 for criminal contempt in violation of Penal Law § 215.50 resulting from the alleged violation of an order of protection (defendant's Exhibit B, Amended Claim, ¶ 3). The Amended Claim asserts that on or about June 9, 2006 the school superintendent informed claimant that "there was a 'hold' placed on [his] fingerprint record by the state education department and she had to separate [him] from the school district until the charges were resolved and the 'hold' was cleared" (defendant's Exhibit B, Amended Claim, ¶ 4 ). Claimant alleges that following his "forced" separation from employment he was notified by OSPRA that a "hold" had been placed on his fingerprint record pending its investigation into the criminal contempt charges of June 1, 2006 (defendant's Exhibit B, Amended Claim, ¶ 7). The claim alleges that on March 26, 2008, the June 1, 2006 charge as well as "5 of the original 7 charges were . . . dismissed with an agreement to vacate the remaining two charges"(defendant's Exhibit B, Amended Claim, ¶ 8). Following claimant's various inquiries regarding the status of the "hold", he allegedly received a letter dated November 24, 2008 from Deborah Marriott, Associate Attorney and Manager of OSPRA, in which she referenced " 'behavior that raised a substantial question of moral character'" (defendant's Exhibit B, Amended Claim, ¶ 13). However, Ms. Marriott concluded the letter by stating "your certifications are intact and reflected as valid on the TEACH system . . ." (defendant's Exhibit B, Amended Claim, ¶ 15). Another letter from Ms. Marriott dated January 14, 2009 allegedly advised claimant that " '[s]chool employers do not have access to any information about our office's open investigation into issues relating to your moral character' " and although the system reflects valid permanent certifications, " '[n]o new certifications will be issued until the moral character case is closed' " (defendant's Exhibit B, Amended Claim, ¶ 16). As alleged in the claim, on March 26, 2009 "[t]he final two charges were vacated . . . [and] the 'hold' was removed from [claimant's] fingerprint record shortly after" (defendant's Exhibit B, Amended Claim, ¶ 19). In fact, the sentencing minutes submitted by the claimant in opposition to the defendant's motion reflect that on March 26, 2009 claimant withdrew his previously entered pleas of guilty to two charges of Aggravated Harassment and pled guilty to Harassment in violation of Penal Law § 240.26 (claimant's Exhibit D, p. 2). On April 13, 2009 claimant was notified that his " 'fingerprints have been cleared and any new requests for clearances will be granted' " (defendant's Exhibit B, Amended Claim, ¶ 21). A similar letter indicating that his fingerprints had been cleared " 'in light of the fact that harassment is a violation and not a crime' " was allegedly received by the claimant on April 17, 2009 (defendant's Exhibit B, Amended Claim, ¶ 22). The Amended Claim further alleges the following:
"23. In the same letter of April 17th 2009 Ms. Marriott states, 'As of this date . . . any school district will be able to request and instantly receive a fingerprint clearance for you.' This would indicate that school employers would have had an indication that there was an issue with my fingerprint record. This contradicts Ms. Marriott's statements in the letter dated January 14th, 2009 when she stated, 'School employers do not have access to any information about our office's open investigation into issues relating to your moral character . . .
26. On August 14th 2009 I questioned OSPRA in an email regarding whether or not an employer or prospective employer would be able to see a fingerprint hold on an employee or candidate.
27. OSPRA's response to that email on August 18th 2009 stated, 'They would probably guess that something was wrong, because they wouldn't be able to get a clearance.' This would be another contradiction to what Ms. Marriott explained to me" (defendant's Exhibit B, Amended Claim).
Claimant alleges as his first cause of action the following:
"32. OSPRA is guilty of Negligence in that they failed to use reasonable care while investigating the issues surrounding my personal tragedy, and
33. OSPRA is guilty of Official Misconduct in that they used improper and/or illegal acts and violated their duty to act on behalf of the public good, in that
34. OSPRA told me that employers would not know of any issues regarding a hold on my fingerprint record. This was shown not to be the case. Employers and school districts could see there were issues regarding my fingerprint record.
35. This prevented me from securing employment and tainted my reputation.
36. OSPRA violated its own confidentiality policies by sharing information about the hold on my fingerprint record with my employer even before I knew of it.
37. These aforementioned behaviors initiated my forced separation from employment at Hampton Bays School District and ultimately sabotaged my future employment opportunities and caused enormous financial and emotional distress" (defendant's Exhibit B, Amended Claim).
Claimant alleges as his second cause of action that OSPRA violated his due process rights resulting in damage to his reputation and future employment opportunities.
Claimant alleges as his third cause of action that OSPRA discriminated against him in that it "treated [his] case much more harshly than other educators simply because [he] was arrested" (defendant's Exhibit B, Amended Claim, ¶ 54). (1)
Claimant's fourth and fifth causes of action largely restate the very same allegations made in the first through third causes of actions.
On a motion to dismiss a claim for failure to state a cause of action the court is required to "accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 ; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 ). Thus, the determination is made by reference to whether "the proponent of the pleading has a cause of action, not whether he has stated one" (id. at 88).
Education Law § 305 (30) provides, in part, the following:
"(a) The commissioner, in cooperation with the division of criminal justice services and in accordance with all applicable provisions of law, shall promulgate rules and regulations to require the fingerprinting of prospective employees, as defined in section eleven hundred twenty-five of this chapter, of school districts, charter schools and boards of cooperative educational services and authorizing the fingerprinting of prospective employees of nonpublic and private elementary and secondary schools, and for the use of information derived from searches of the records of the division of criminal justice services and the federal bureau of investigation based on the use of such fingerprints".
With regard to prospective school employees seeking clearance for employment, Education Department regulations provide:
"Where the criminal history record check reveals that the prospective school employee was convicted of a crime or has a pending criminal charge, the department shall review such record and any related information obtained by the department pursuant to the review of such criminal history record, if any, and apply the standards for the granting or denial of a license or employment application set forth in Correction Law, section 752 and shall consider the factors specified in Correction Law, section 753. Such review shall be conducted in accordance with section 296 (16) of the Executive Law" (8 NYCRR § 87.5 [a]  [i]).
The regulations further state:
"Where the department determines that the criminal history record indicates that there is a basis to deny a clearance for employment, the department shall issue an initial notification of a possible denial of clearance to the prospective school employee by certified mail, return receipt requested, which shall contain the basis for this notification, including but not limited to a description of the criminal charges or convictions involved" (8 NYCRR § 87.5 [a]  [v]).
Education Law § 3004-b (1) likewise requires the Commissioner of Education to initiate a criminal history records search(2) upon receipt of an application for certification "as a superintendent of schools, teacher, administrator or supervisor . . ." The Commissioner is authorized and directed to obtain two sets of fingerprints from each such applicant and to transmit the fingerprints to the Division of Criminal Justice Services (DCJS) which, in turn, is authorized to submit an applicant's fingerprint to the FBI for a national criminal history record check. The Statute directs both DCJS and the FBI to submit the results of their respective criminal history record searches to the Commissioner "in a timely manner" and authorizes DCJS to provide subsequent criminal history notifications "upon notification that such applicant has been certified".
In those instances where subsequent criminal history notices are received as to persons already in the Department's fingerprint file 8 NYCRR § 87.6 requires:
"(a) For individuals who are in the SED fingerprint file, the department shall send a notification of the arrest, which shall state the date of the arrest and the court of jurisdiction, to the employing covered school concerning subsequent criminal history notifications received by the department from DCJS, provided that the department's records indicate that the individual is employed by the covered school.
(b) For applicants for or holders of certification pursuant to Part 80 of this Title, for whom subsequent criminal history notifications reveal an arrest for a crime, the department shall transmit such information to the department's assistant commissioner of the Office of Teaching Initiatives for a determination of good moral character pursuant to Part 83 of this Title".
8 NYCRR Part 83 governs "Determinations Of Good Moral Character". Section 83.1 (a) requires a chief school administrator having knowledge thereof to refer "[a]ny information indicating that an individual holding a teaching certificate has been convicted of a crime, or has committed an act which raises a reasonable question as to the individual's moral character" to the Department's professional conduct officer. The professional conduct officer investigates the alleged conviction or act and prepares a report and recommendation regarding whether to submit the matter for a formal hearing (8 NYCRR § 83.2). The report is reviewed by the State Professional Standards and Practices Board (8 NYCRR § 83.3). If the board determines there is a substantial question as to the moral character of a certified individual or applicant, "notice of the basis for the conclusion and a copy of this Part shall be sent by certified mail, return receipt requested to the certified individual or applicant" (8 NYCRR § 83.3). The regulations provide procedures governing formal hearings (8 NYCRR § 83.4) and appeals (8 NYCRR § 83.5). The penalties available under the regulations are significant (8 NYCRR § 83.6).
Assuming the truth of the allegations in the claim as required on a motion to dismiss for failure to state a cause of action, the Court concludes that it fails to state a legally cognizable cause of action. Construing the claim liberally, claimant alleges a violation of his right to due process, a violation of his right to privacy, negligent investigation and discrimination.
With respect to the due process cause of action, claimant alleges the following:
"42. OSPRA violated my Due Process. A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property, in that
43. In spring of 2006 OSPRA did not notify me . . of any investigation regarding a 'hold'. . .
44. In June 2008 I was informed the hold would be removed from my fingerprint record. However, OSPRA officials did not remove the hold and did not inform me that the hold would remain.
45. I sent out hundreds of resumes to any and all school districts who were hiring. Because the hold was still in place districts learned there was an issue with my fingerprint record" (defendant's Exhibit B, Amended Claim).
Giving the claim a liberal construction and the benefit of every favorable inference, it alleges that the claimant was denied clearance for employment without being afforded the required due process protections set forth in the applicable regulations. Claimant also alleges in the Amended Claim that he was advised by an employee of OSPRA that prospective employers would probably "guess something was wrong, because they wouldn't be able to get a clearance" (defendant's Exhibit B, Amended Claim, ¶ 27; see also Claimant's Exhibit Q, email correspondence). As set forth above, the applicable regulations require notification of a possible denial of clearance for employment and an opportunity to respond (8 NYCRR § 87.5 [a]  [v]). When a clearance for employment is denied, the aggrieved individual is provided the opportunity to appeal the denial in accordance with the due process procedures set forth in 8 NYCRR § 87.5. Claimant alleges he was denied these due process safeguards.
In addition, both the allegations in the claim and the documentation submitted by the claimant in opposition to the defendant's motion (claimant's Exhibit I) reflect that a determination may have been made that claimant engaged in "behavior that raised a substantial question of moral character" (defendant's Exhibit B, Amended claim, ¶ 13; claimant's Exhibit I). The applicable regulation requires adherence to due process safeguards where "the board or subcommittee concludes that a substantial question exists as to the moral character of a certified individual or an applicant" (8 NYCRR § 83.3). The claim alleges that claimant was not afforded the due process required by law.
A cause of action for a violation of the State Constitution may give rise to a tort cause of action where it is necessary to ensure the full realization of the claimant's constitutional rights Martinez v City of Schenectady, 97 NY2d 78, 83 ); (Brown v State of New York, 89 NY2d 172 (1996). The right is a narrow one, however, and "no such claim will lie where the claimant has an adequate remedy in an alternate forum" (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1150 ; see also Martinez v City of Schenectady, 97 NY2d at 83; Waxter v State of New York, 33 AD3d 1180 ; Bullard v State of New York, 307 AD2d 676 ). Here, claimant has such an adequate remedy. With respect to the alleged denial of claimant's due process rights, it is well settled that "[m]andamus lies to compel the performance of a purely ministerial act where there is a clear legal right to the relief sought" (Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12, 16 ). As set forth previously, prospective school employees are entitled to notice of a "possible" denial of clearance for employment and an opportunity to respond and appeal any such denial (8 NYCRR § 87.5 [a]  [v] and ). The applicable regulations likewise require that an individual be afforded an opportunity for a hearing and an appeal when a determination has been made that "a substantial question exists as to the moral character of a certified individual or applicant" (8 NYCRR §§ 83.3, 83.4 and 83.5). To the extent the claim alleges a violation of these due process safeguards, mandamus to compel provides an adequate remedy in the Supreme Court (see e.g. Matter of Heck v Keane, 6 AD3d 95 ; see also Matter of Vandine v Greece Cent. School Dist., 75 AD3d 1166, 1167  ["Where . . . 'a government employee is dismissed for stigmatizing reasons that seriously imperil the opportunity to acquire future employment, the employee is entitled to an opportunity to refute the charge' "). Moreover, upon exhausting the administrative appeal process, claimant may seek review of an adverse determination in a proceeding pursuant to CPLR article 78 (see e.g. Matter of Boatman v New York State Dept. of Educ., 72 AD3d 1467  [determination made in article 78 proceeding that rational basis existed for the denial of a clearance for employment]; cf. Matter of Lempesis v Mills, 300 AD2d 733  [article 78 proceeding was properly dismissed for failure to exhaust administrative remedies available in teacher decertification proceeding under 8 NYCRR part 83]). The availability of these alternate avenues of redress render recognition of a constitutional tort claim unnecessary to effectuate the purpose of the State constitutional protections and ensure full realization of the claimant's rights (see Partee v State of New York, Ct Cl, December 11, 2009, Claim No. 117058, Motion Number M-77197; CM-77225 [UID #2009-038-578], DeBow, J.; Rodriguez v State of New York, Ct Cl, August 9, 2007, Claim No.110305, Motion Number M-73379 [UID #2007-015-222], Collins, J.; Ahlers v State of New York, Ct Cl, June 27, 2000 [Claim No. 96505, UID # 2000-014-108] Nadel, J.; Rossi v State of New York, Ct Cl, July 9, 2001 [Claim No. 104004, Motion No. M-63481 UID # 2001-019-542], Lebous, J.). To the extent the claim is predicated on a violation of the New York State Constitution it must therefore be dismissed.
To the extent the claim may be interpreted as alleging a violation of the claimant's federal constitutional rights, it must be dismissed as no claim for a violation of the of the claimant's federal constitutional rights is cognizable against the State in the Court of Claims (Brown v State of New York, 89 NY2d at 184-185; see also Monell v New York City Dept. of Social Services, 436 US 658 ; Matter of Gable Transp., Inc. v State of New York, 29 AD3d 1125 ; Welch v State of New York, 286 AD2d 496 ).
Claimant also contends that "OSPRA is guilty of Negligence in that they failed to use reasonable care while investigating the issues surrounding my personal tragedy . . ." (defendant's Exhibit B, Amended Claim, ¶ 32). A claim for negligent investigation is not actionable in New York (Russ v State Empls. Fed. Credit Union (SEFCU), 298 AD2d 791 ).
With respect to the claimant's allegation that OSPRA violated its own confidentiality policies by disclosing the criminal history information to his employer (defendant's Exhibit B, Amended Claim, ¶ 36), the law required the disclosure:
"Procedures for subsequent criminal history notifications
(a) For individuals who are in the SED fingerprint file, the department shall send a notification of the arrest, which shall state the date of the arrest and the court of jurisdiction, to the employing covered school concerning subsequent criminal history notifications received by the department from DCJS, provided that the department's records indicate that the individual is employed by the covered school" (8 NYCRR § 87.6 [a]).
The notification of the criminal history information which was provided to the claimant's employer was therefore required. In addition, no cause of action for damages related to the dissemination of criminal history information exists when SED "has reasonably and in good faith relied upon the accuracy and completeness of criminal history information furnished to it by qualified agencies" (Education Law §§ 3004-b ; 3035 ). No allegation is made that SED acted in bad faith or that the criminal history information upon which it relied was furnished by an unqualified agency. Rather, notification of the claimant's arrests was required by law. As a result, no cause of action for disclosure of the claimant's criminal history information to his employer is stated.
Lastly, claimant alleges that he was the victim of discrimination, stating "they treated my case much more harshly than other educators simply because I was arrested" (defendant's Exhibit B, Amended Claim, ¶54). Executive Law § 296 (16) states that it is an "unlawful discriminatory practice, unless specifically required or permitted by statute, . . . to make any inquiry about . . . or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual, as defined in subdivision two of section 160.50 of the criminal procedure law . . ." (emphasis added). Here, SED was required by law to notify claimant's employer of his arrests and transmit the information to the appropriate office for a determination of good moral character (8 NYCRR § 87.6 [a] and [b]). To the extent the Amended Claim alleges discrimination, it fails to state a legally cognizable cause of action.
Based on the foregoing, that branch of defendant's motion seeking dismissal of the claim for failure to state a cause of action is granted, and the claim is dismissed. That branch of defendant's motion seeking summary judgment is denied as moot.
September 8, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Claimant enumerates various misdeeds committed by other educators in support of his contention that he was treated unfairly simply because he was arrested.
2. The term "criminal history record" is defined as "a record of all convictions of crimes and any pending criminal charges maintained on any individual by the Division of Criminal Justice Services and the Federal Bureau of Investigation.