Thursday, May 22, 2008

The Scope of Education Law Section 3028

The Appellate Division, First Department, has recently defined the scope of Education Law Section 3028 which provides teachers with DOE paid attorneys whenever civil or criminal proceedings are brought against them for disciplining a student. The facts of the case, Timmerman v. Board of Education, 2008 NY Slip Op 3969; 2008 N.Y. App. Div. LEXIS 3750, are not too unfamiliar.

In February 2006, Dolph Timmerman called the parents of three female students in his fifth grade class to report their disruptive behavior in the classroom. He made one call to each parent. A few days later, on February 13, 2006, the students made allegations to school officials that Timmerman had touched them inappropriately.

The following day, Timmerman was arraigned on charges of sexual abuse in the first, second and third degrees, and endangering the welfare of a child.

Pending his trial, he requested the Board reimburse him for legal fees and expenses that "are and will be necessarily incurred in his defense."

By letter dated March 9, 2006, the Board denied the request, reasoning that the criminal proceeding was not covered by the law.

Thereafter, on April 12, 2006, the criminal action against petitioner was dismissed and sealed.

The Board continued to deny Timmerman his attorney fees arguing that such a payment would open the flood gates of teachers seeking reimbursement for attorney fees whenever they were charged with inappropriate behavior.

The trial court agreed and dismissed Timmerman's petition.

In a one paragraph decision the Appellate Division reversed and found that Timmerman was entitled to his attorney fees and expenses. The Court found "since the record shows that the criminal proceeding against petitioner clearly arose out of disciplinary actions that he took against pupils, respondents should reimburse petitioner for the attorneys' fees and expenses he incurred in defending himself."


Anonymous said...

In NYC the DOE is too busy charging us to defend us.

Anonymous said...

I suppose DOE will seek to get the case into the Court of Appeals.

NYC Educator said...

So few real stories with good endings nowadays. Thanks for posting this one.

ed notes online said...

A few years ago a teacher out here in Rockaway called me to tell me this story:
It was summer school and he was dismissing a class. He was leaning on the desk with his hands over the edge when a girl was pushed so she sat on his hands. She went down and said he grabbed her ass. The cops were waiting to arrest him when he came down.
Lucky he had an AP who was ok and he talked the cops into not arresting him. But he was sent to the rubber room for some time but was released.
At some point- either that year or the next summer, one of his friends was teaching a class and overheard some girls talking about how they "got" that teacher. It was the same girls. That wiped his record clean but it was a pure accident the truth came out.

Anonymous said...

Seems like this post is half a story. Where's the practical use of how it's been applied?

Anonymous said...

The charges were dismissed. The three girls who falsely accused Timmerman went unpunished.

Anonymous said...

Then what's the point in posting this?

Did the DOE reimburse any legal fees?

Anonymous said...

Can the names of the three girlss be listed so that if we get them, we know?

Anonymous said...

Yeah, give us the names. I don't want them in my chemistry class.

Anonymous said...

Just happened upon your website and read your platform. Great! Does anyone know you guys exist? I've been in the system for eight years. How do you get your message out to teachers?

-Bronx Wonderer

Anonymous said...

With great difficulty Mr. Bronx Wonderer. Glad to have you here.

Anonymous said...

You would think Mr. Timmerman would learn from all that has happened to him. Instead he requests female students to be sent to his room during lunch period and he seems to keep putting himself in certain situations. I hope that people don't find it strange that he has only pictures of female students