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Due process requires good faith effort to serve disciplinary charges on employee
Matter of Norgrove v Board of Educ. of City School Dist. of City of N.Y., 23 Misc 3d 684

Lesleigh B. Norgrove was terminated from his position as a tenured mathematics teacher after he failed to seek a disciplinary hearing.

Norgrove contended that he never received copies of the disciplinary charges nor notice of his right to file an objection and seek a hearing as provided by Section 3020-a of the Education Law because the notices were sent to an incorrect mailing address.

The Board argued that had served the disciplinary charges on Norgrove by hand and, in addition, by both regular and certified mail sent to his address of record, ?428 Worthman Avenue, Apt. No.1, Brooklyn, New York, 11207 ? because that was the address BOE [Board of Education] had in its HRS [Human Resource System] for the petitioner in May of 2007." The letters sent Certified Mail was returned to the Board as ?unclaimed;? the letters sent regular mail were never returned to the Board.

In rebuttal, Norgrove admitted he had received some documents that were hand delivered but pointed out that he had moved in 2003 and the Board of Education did not dispute his claim that its Office of Salary Services listed his new, and correct, address as 22 Covert Street, 3R, Brooklyn, New York and thus had notice of his correct address ?as early as October 2006.?

In essence Norgrove argued that since he was not provided with notice as to his right to request a hearing on the charges, the Board of Education's "unilateral determination to terminate [his] employment without the due process hearing as provided for under Education Law §3020-a deprives [him] of property rights in his tenured position without due process of law, and is arbitrary, capricious, an abuse of discretion, a violation of lawful procedure, and a violation of the rights guaranteed to Petitioner under the due process clause of the New York State Constitution."

Justice Madden agreed, ruling that:

1. Education Law §3020 recognizes that a tenured teacher has a constitutionally protected property interest in his or her right to continued employment which cannot be deprived without due process.?

2. Contrary to the Board of Education's assertion, the First Notice that was personally delivered by hand to Norgrove on May 11, 2007, did not satisfy the substantive requirements of Section 3020-a(2)(a) as it did not include certain essential information such as details of the charges, nor did it advised Norgrove of his right to a hearing and the maximum penalty if he did not request a hearing within 10 days, as required under section 3020-a(2)(a).

3. ?Due process requires the government to provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."

4. In Jones v. Flowers, 547 US 220 the United States Supreme Court held that when the government becomes aware that its attempt at notice has failed, due process requires the government to "take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so."

In this instance, the return of the certified mail marked unclaimed meant the Board ?had good reason to suspect when the notice was returned that [Norgrove] was no better off than if the notice had never been sent.?

This triggered an obligation on the Board of Education's part to take additional steps to effect notice, such as redelivering a second notice to Norgrove personally at his place of work. Such an effort would have constituted an additional reasonable and practical step to effect notice, ?which was clearly available to the Board of Education, since the Board of Education employed [Norgrove] at all times, had direct first-hand knowledge of his work location, and had previously effectuated service on petitioner by such means.?

As to the Board?s argument that Norgrove was obligated to update his address and that he did not do so until after he was terminated, Justice Madden noted that ?the identical argument was raised and rejected in Jones on the grounds that the government cannot be relieved of its constitutional obligation to provide adequate notice" even if the individual was required to provide a current address by statute.

As the Board conceded that its Office of Salary Services lists Lesleigh?s correct address at Covert Street prior to 2007, Justice Madden concluded that the Board of Education's determination to terminate his employment must be annulled for not complying with the requirements of due process, and that Norgrove is entitled to reinstatement with back salary and benefits.

Full post as published by New York Public Personnel Law on March 05, 2010 (boomark / email).