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."