STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

In the Matter of Disciplinary Charges Brought
Pursuant to Education Law 3020-a by
KINGSTON CITY SCHOOL DISTRICT,
Complainant,
-against-
MATTHEW DiDONNA,
Respondent.
Before SHEILA S. COLE, Hearing Officer
Appearances:
RICHARD E. CASAGRANDE, ESQ.
MATTHEW E. BERGERON, ESQ.
SED Case No.
24,838
DISPOSITION OF
MOTION TO DISMISS
For Respondent
Of Counsel
SHAW, PERELSON, MAY & LAMBERT For Complainant
DAVID S. SHAW, ESQ. Of Counsel
MARK RUSHFIELD, ESQ.
REPORT
Pursuant to my authority as hearing officer under section 3020-a of the New York
State Education Law, I conducted a telephonic pre-hearing conference in this matter on
June 20, 2014. Both parties appeared by attorney and a stenographic record of the
conference was made. Respondent moved to dismiss the charges against him on the
2
grounds of double jeopardy and laches
1
. The hearing officer asked the parties to brief
those two issues. The parties submitted briefs on July 7, 2014.
On May 7, 2014, the District found probable cause for the following charges
against Respondent:
CHARGE I- MISCONDUCT AND/OR CONDUCT UNBECOMING
A TEACHER AND/OR NEGLECT OF DUTY AND/OR
INCOMPETENCE
In that on or about December 8, 2012, Matthew DiDonna, a
tenured teacher, gave to another person (M.C.) mushrooms, known as
Psilocybin Mushrooms that Mr. DiDonna possessed. Said mushrooms
were a controlled substance within the meaning of the New York State
Penal Law. Such transaction was:
Specification A: illegal and/or
Specification B: a sale of a controlled substance. As described in Penal
Law Section 230.31; and/or
Specification C: a sale of an hallucinogen weighing at least twenty-five
(25) milligrams, as described in Penal Law Section 220.39
Specifications B & C: if charged as crimes and proven as crimes would
constitute Class D and B felonies, respectively.
With respect to Charge I the maximum penalty sought by the Board, in
the event that a hearing is not requested is termination from employment
and the maximum penalty sought by the Board in the event that a
hearing upon the charges is requested, is termination from employment.
Please take notice that your disciplinary record, if any, may be
introduced as evidence for the determination of the appropriate penalty,
if any.
CHARGE II -MISCONDUCT AND/OR CONDUCT
UNBECOMING A TEACHER AND/OR NEGLECT OF DUTY
AND/OR INCOMPETENCE
In that when on or about December 8, 2012, Matthew DiDonna, a
tenured teacher, gave to another person (M.C.) mushrooms, known as
1
Respondent had cited additional grounds for its motion to dismiss the Charges, which were withdrawn upon the
District's representation that it did not intend to appeal a judicial decision in a related matter.
3
Psilocybin Mushrooms that Mr. DiDonna possessed, an illegal act. Such
conduct undermined his status as a role model for students, thereby
rendering him unfit to teach.
With respect to Charge II the maximum penalty sought by the Board, in
the event that a hearing is not requested is termination from employment
and the maximum penalty sought by the Board in the event that a
hearing upon the charges is requested, is termination from employment.
Please take notice that your disciplinary record, if any, may be
introduced as evidence for the determination of the appropriate penalty,
if any.
[Notice of Motion for an Order Dismissing the Charges (Notice of
Motion) ..... Exhibit A.]
These charges were preceded by different disciplinary charges that the District
brought against Mr. DiDonna pursuant to Education Law Section 3020-a on or about
June 5, 2013. Notice of Motion Exhibit C, Decision of Hearing Officer Ira Lobel. The
earlier disciplinary charges are as follow:
CHARGE I- MISCONDUCT AND/OR CONDUCT UNBECOMING
A TEACHER AND/OR NEGLECT OF DUTY AND/OR
INCOMPETENC
In that on or about December 9, 2012, Matthew DiDonna, a
tenured teacher, was arrested for the illegal possession of a controlled
substance in the County ofUlster, New York and later pled guilty to
and/or was convicted on or about May 28, 2013, for the crime of criminal
possession of a controlled substance in the fourth degree, a class C felony
under Section 220.09(6) ofthe New York Penal Law.
With respect to Charge I the maximum penalty sought by the Board, in
the event that a hearing is not requested is termination from employment
and the maximum penalty sought by the Board in the event that a
hearing upon the charges is requested, is termination from employment.
Please take notice that your disciplinary record, if any, may be
introduced as evidence for the determination of the appropriate penalty,
if any.
4
CHARGE II- MISCONDUCT AND/OR CONDUCT
UNBECOMING A TEACHER AND/OR NEGLECT OF DUTY
AND/OR INCOMPETENCE
In that on or about May 28, 2013, Matthew DiDonna, a tenured
teacher, when he pled guilty to and/or was convicted of the crime of
criminal possession of a controlled substance in the fourth degree, a class
C felony under Section 220.09(6) of the New York Penal Law, thereby
becoming unfit to teach and/or serve as a proper role model for students.
With respect to Charge II the maximum penalty sought by the Board, in
the event that a hearing is not requested is termination from employment
and the maximum penalty sought by the Board in the event that a
hearing upon the charges is requested, is termination from employment.
Please take notice that your disciplinary record, if any, may be
introduced as evidence for the determination of the appropriate penalty,
if any.
[Notice of Motion ..... Exhibit B.]
On October 4, 2013, following hearings held on August 26 and 27, 2013, Hearing
Officer Lobel determined that Mr. DiDonna was guilty of the charges before him and
recommended, among other things, that DiDonna be suspended without pay for the
remainder ofthe 2013-2014 school year. ld. At 15.
In its post-hearing brief submitted to Hearing Officer Lobel, the District asserted
that, based on DiDonna's admission that he gave drugs to another person, he is guilty of
an additional felony offense, i.e. criminal sale of a controlled substance. Hearing Officer
Lobel concluded that, because DiDonna "was not charged criminally with this offense
and it is not part of the 3020-a charge, it cannot be considered in the evaluation of the
instant matter. " I d. At 11.
On October 10, 2013, the District petitioned New York State Supreme Court,
Ulster County, for an order and judgment partially vacating Hearing Officer Lobel ' s
Decision and A ward, and for an order that the matter be remanded to a different hearing
officer for a redetermination of the appropriate penalty to be imposed upon the teacher.
5
The Court found that the District failed to state a valid basis for vacating or modifying
Hearing Officer Lobel ' s Award or remanding the matter to a different hearing officer.
Respondent was arrested on December 9, 2012, and charged with the sale
2
and
possession of illegal drugs. On May 28, 2013, DiDonna pled guilty to a single count of
the crime of criminal possession of a controlled substance in the fourth degree under
Section 220.09(6) of the New York Penal Law, in satisfaction of all charges that were
brought or could have been brought as a result of his arrest on December 9, 2012.
Attorney Affirmation of Matthew Bergeron, Exhibit C.
Respondent asserts that the District knew, as early as December 2012, that
DiDonna had been arrested not only for possession of illegal drugs, but for sale of illegal
drugs as well . A December 10, 2012 article printed in The Daily Freeman stated that,
"DiDonna, 42, was arrested by state police from the Ulster barracks at 3:35A.M. Sunday
at his home .... and was charged with possession and sale of a controlled substance, both
felonies, and unlawful possession of marijuana, a violation. An article in the same
newspaper in June 2013, stated that DiDonna "was charged in December with both the
sale and possession of illegal drugs. " Bergeron Attorney Affirmation, Exhibit A. Those
newspaper articles were received in evidence in the case heard by Hearing Officer Lobel.
Bergeron Attorney Affirmation. Email communications produced in the discovery phase
of the first case confirm that Superintendent of Schools, Dr. Paul Padalino, knew, long
before the charges in the instant case were preferred, of the allegation that DiDonna gave
illegal drugs to another person. By email message dated December 9, 2012, to various
recipients, Dr. Padalino stated that, "( e ]arly Sunday morning I was contacted by the State
Police regarding the arrest of a KHS teachers (sic.) Matthew DiDonna was arrested on
multiple drug charges. State Police will be posting this information within the next few
hours." Id., Exhibit B. On May 30, 2013, Dr. Padalino received, for his comments or
questions, a statement the Ulster County District Attorney was proposing to release to the
press:
2
Penal Law 2200.00(1) states that "[s]ell" means to sell, exchange, give or dispose of to another, or to offer or
agree to do the same."
6
Matthew DiDonna, age 42, of Hurley, New York, pled guilty to the Class
C Felony of Criminal Possession of a Controlled Substance in the fourth
degree on May 28, 2013, before the Hon. Anthony McGinty in Ulster
County Court.
The case stemmed from an incident that occurred on December 9, 2012,
when DiDonna, a long-time teacher at Kingston High School, gave
hallucinogenic mushrooms to a friend, Mark Conlin. Mr. Conlin died
shortly therafter from what were eventually determined to be unrelated
causes. DiDonna is scheduled to be sentenced by Judge McGinty on
January 7, 2014
3
.
[Id. , Exhibit C.]
Respondent seeks dismissal of the charges, which it asserts are barred by the
doctrine or laches and/or double jeopardy.
Respondent asserts that the charges in issue in this case, SED File No. 24,200,
arose from a single set of events. On December 8, 2012, Mr. DiDonna allegedly gave
psilocybin mushrooms to Mark Conlon, for which no money was exchanged. After Mr.
Conlon was found dead the next day, the mushroom was found, which led police to Mr.
DiDonna's home, where he was arrested on charges of possession and sale of illegal
drugs. The District was aware that Mr. DiDonna was arrested and charged with multiple
crimes, including sale of drugs. Respondent notes that, although the District was aware
that the police had probable cause to arrest him for the sale of a controlled substance, it
chose only to charge him with misconduct and/or conduct unbecoming a teacher and/or
neglect of duty and/or incompetence stemming from the conviction of criminal
possession of a controlled substance.
The doctrine of laches applies where there is a showing that one party
unjustifiably delayed asserting its rights, resulting in prejudice to the other party.
3
The parties entered into a stipulation in SED File No. 22,458, which included their agreement, "[t]that the death of
non-party Mark Conlin was not related to drugs and not attributable to any acts committed by Respondent Matthew
DiDonna."
7
Respondent maintains that the defense of laches is available even though the statutory
period of limitation has not expired. Natale v. Mazzuki, 198 Misc. 494, 498 (Rich. Co.
Sup. Ct. 1950). Modified, 278 App. Div. 591.
Respondent contends that the doctrine of laches is cognizable in proceedings
under 3020-a. In Matter of Board of Education, SED Case No. 3,650 (1999), Hearing
Officer Richard Adelman dismissed charges concerning falsification of an employment
application and related charges of misconduct, all of which had allegedly occurred six
years earlier, as time barred. The hearing officer noted, however, that:
In addition, even if tolling was permitted under the principle of estoppel,
the Board would be estopped because it must be held to have had the
knowledge of (the Respondent' s] misconduct when [the Respondent] was
hired, and when he was granted tenure. Indeed, the Board, with due
diligence, should have discovered [the Respondent's] alleged misconduct
in 1991, when [he] submitted the application on which the allegedly false
statements appear. Id. at 9; see also, Board of Education, C. S.D. , 24 Ed.
Dep't Rep. 163 (1984) (laches is available as a defense in a 3020-a
proceeding.)
Here, Respondent maintains that the District either knew or should have known
through due diligence, that Mr. DiDonna had been arrested for the alleged sale of a
controlled substance when it preferred the charges on June 4, 2013. Despite that
knowledge, and despite the fact that the conduct charged here occurred at the same time
as the possession, the District chose to charge Respondent only with possession.
Respondent considers the one-year delay in bringing charges in the instant matter
to be wholly unreasonable, inexcusable and unjustifiable. If the charges in this case are
not dismissed, Respondent will suffer a significant prejudice in that a second penalty
could be imposed for essentially the same conduct for which he has already been
prosecuted on Section 3020-a charges. Respondent submits that, in this respect, the
doctrine of laches is intertwined with double jeopardy.
8
Respondent anticipates that the District will liken the principle of double jeopardy
that DiDonna seeks to apply here, to that employed in the criminal law context. The
concept are, however, different in the two different contexts. Respondent advances the
view of one arbitrator:
The key to this arbitral [double jeopardy] doctrine is not the Constitution,
but rather fundamental fairness, as guaranteed by the contractual
requirement of 'just cause' for discipline. Thus, when an employee has
suffered a suspension for an offense it would be unfair ... to fire him
before he has committed a second offense. How Arbitration Works, 7
1
h
Ed. , pg. 15-61, quoting United Int 'l Investigative Serv., 114 L.A. 620, 626
(Maxwell, 2000).
Recognizing that the proceedings here, unlike those in arbitration, are statutory rather
than contractual in nature, Respondent avers that the principal of double jeopardy is no
less applicable here, as it cannot be gainsaid that just cause is the standard used under
3020-a.
Arbitrators and hearing officers have found, as Respondent asserts here, that
double jeopardy in the labor context cannot be applied narrowly. Respondent submits
that, instead of asking whether a specific act was previously charged as misconduct, the
appropriate questions are whether the employer was aware of the previously charged
incident and whether it was part and parcel of a larger sequence of events that the
employer did address.
Respondent cites Lakeland Central School District of Shrub Oak, 26 Ed. Dep't
Rep. 87 ( 1986), in which the Commissioner of Education upheld a panel's dismissal of
corporal punishment charges on the grounds that the charged incident had been
previously settled. Although the earlier 3020-a charges were not voluntarily settled, the
District had knowledge of all the facts surrounding the December 8-9, 2012 incident, and
brought 3020-a charges based on the facts it ostensibly deemed worthy of discipline.
Through that process, the District obtained a statutory resolution of the charges via
Hearing Officer Lobel ' s decision and the court' s order confirming the Lobel decision.
9
Respondent posits, therefore, that the District should not be permitted to prosecute
DiDonna here for an incident that has already been resolved.
Similarly, in SED Case No. 3,611 (1999), Hearing Officer Ralph Berger
dismissed a specification on the grounds that it had been the subject of prior disciplinary
action, for which a letter of reprimand and warning was placed in the teacher's file.
Respondent analogizes that case to this, in that here too, the District presumably fully
investigated what happened December 8, 2012, and chose to bring disciplinary charges
only upon DiDonna' s plea to a single crime. Respondent avers that the District must
abide by the outcome of those charges and should not be permitted to undermine the
3020-a process which, as is demonstrated by recent amendments to the statute, is
intended to promote the timely and efficient disposition of teacher disciplinary matters.
Hearing Officer Howard Stiefel, in SED Case No. 4,094 (2001), stated that:
... the Respondent had every right to believe that any investigation of his
misconduct had been completed and [the first 3020-a decision] was the
' final word' on discipline ... A decision by the Board to upgrade the
discipline to a termination more than three years later, particularly without
any indication there was newly discovered evidence, is simply
impermissible. Whether the principal (sic) of estoppel or the concept of
double jeopardy is applied to this case, the Board could not punish the
grievant a second time for the same violation.
Respondent contends that, despite its knowledge, on June 4, 2013, the District
chose to charge Mr. DiDonna with only the conduct constituting possession, not sale of a
controlled substance. Respondent submits that, having gone through that 3020-a
proceeding, Mr. DiDonna "had every right to believe that any investigation of his
misconduct had been completed and [the first 3020-a decision] was the 'final word' on
discipline ... "
The District, on the other hand, argues that Respondent has presented no bases for
dismissal of the May 7, 2014 charges.
10
The District contends that, as neither the June 2013, nor the May 7, 2014 charges
were criminal prosecutions, and as the potential disciplinary sanctions arising under the
instant charges do not constitute criminal punishment, Mr. DiDonna cannot rely upon a
claim of double jeopardy.
It is well-established as a matter of law, that Education Law 3020-a proceedings
are not deemed criminal in nature and do not involve "criminal sanctions" that would,
consequently, raise double jeopardy issues, even where the underlying conduct is itself
criminal; rather, as here, their function is to determine the fitness of a teacher to carry on
his or her duties of teaching impressionable students. Batt v. Bd. of Ed. , Deposit Cent.
Sch. Dist. , 41 N.Y2d 265, 268, 360 ME.2d 952 (1977); Roodv. Bd. of Ed. Of Futon
Canso!. Sch. Dist. , 59 A.D.2d 328, 331, 399 N.Y.2d 785, 787-88 (4
1
h Dept. 1977).
The District insists that the principal of double jeopardy is factually inapplicable
to the instant case. Even assuming, arguendo, that the principal of double jeopardy
applied to Education Law 3020-a proceedings, the decision of Hearing Officer Lobel on
the earlier charges would not bar the current proceedings in which the teacher is charged
with having given (sold) the same type of illegal drug to a third person in December
2012. Respondent's plea of guilty to possession of an illegal drug and his admission that
he gave (sold) the same type of illegal drug on or about December 8, 2012, constitute
separate and distinct acts and, in fact, in the criminal context, separate and distinct crimes
with different levels of penalty. The current Education 3020-a charges, therefore, would
not be barred under the principal of double jeopardy even were such a principal
applicable to these non-criminal proceedings.
It is undisputed that, prior to the Board' s issuing the May 7, 2014 charges,
DiDonna had never before been charged in a disciplinary proceeding with allegations that
he sold or gave drugs to another person. The only admissible evidence in support of such
charge was Mr. DiDonna' s admission on August 27, 2013, made during cross-
examination on the final day of hearings before Hearing Officer Lobel. The District
11
contends, therefore, that prior to August 27, 2013, it lacked reliable evidence upon which
to bring charges before the Board of Education for the "probable cause" finding
necessary to commence a 3020-a proceeding on the allegations encompassed within the
May 7, 2014 charges that are now pending before this hearing officer.
No final judicial disposition of the cases decided by Hearing Officer Steifel and
Arbitrator Berger that were presented in this proceeding by Respondent were offered.
The District reasons, therefore, that it cannot be determined whether those decisions were
subject to or survived judicial review.
Neither the Stiefel decision nor the Berger decision, however, in the Employer' s
view, supports application of the principal of double jeopardy to this case because, unlike
the matters reviewed in those cases, the charges in issue here have never before been
adjudicated.
The District maintains that Respondent may not assert the doctrine of laches as a
bar to this proceeding. Education Law 3020-a imposes upon the District the statutory
duty to proceed with bringing disciplinary charges against a teacher in a clearly defined
way. The detailed statutory requirements for bringing charges, which includes a statute
of limitations, except when the charged conduct constituted a crime when committed,
makes no provision for interposing the equitable defense of laches.
As Education Law 3020-a places a statutory duty upon the District as to the
mandated procedures it must follow in order to discipline a tenured teacher and the rights
established for tenure teachers through that statute are considered to be in the public
interest, the doctrine of laches is inapplicable to proceedings under Education Law
3020-a. The District cites numerous cases in support of the proposition that the
equitable doctrine of laches may not be interposed as a defense against a governmental
body acting in its governmental capacity to enforce a public right or to protect a public
interest.
12
The District submits that Respondent cannot, in any event, establish entitlement to
a laches defense. A key element of a defense of laches is actual prejudice to the charged
party. The hearing of the charges before Hearing Officer Lobel concluded on August 26,
2013. That is the day Mr. DiDonna admitted that he gave a controlled substance to Mr.
Conlon. The District thereafter argued to Hearing Officer Lobel that DiDonna' s
admisstioh that he gave illegal drugs to Conlon , though not capable of being charged and
not charged prior to the August 26, 2012 admission, should be considered by Hearing
Officer Lobel in the determination of the appropriate penalty to be imposed upon him.
The issue of penalty was the only issue in dispute in the case before Hearing Officer
Lobel, because Mr. DiDonna had not disputed his guilty plea and conviction for
possession of a controlled substance.
The District insists that it was reasonable for it to await Hearing Officer Lobel ' s
decision on penalty before the District preferred new charges against DiDonna based on
his August 27, 2013 admission. Had Hearing Officer Lobel considered that admission
and/or decided that Mr. DiDonna should be terminated from employment, there would
have been no need for the parties to go through the time and taxpayer expense involved in
the issuance of new disciplinary charges.
Following issuance of Hearing Officer Lobel ' s decision, the District promptly
exercised its right to commence a CPLR Article 75 proceeding to vacate that decision,
based in part on his refusal to consider the August 27, 2013 admission for purposes of
penalty and requested that a new arbitrator be appointed to consider that admission for
purposes of determining penalty on the first set of charges. The District considered it
reasonable under those circumstances for it to await the decision on its application to the
Court. The District commenced the instant proceeding when the Court's delay in issuing
a decision on its petition was deemed by the Employer to be intolerable.
It is undisputed that the May 7, 2014 charges were brought within the statute of
limitations period set by Education Law 3020-a, and as noted above, there is
13
authoritative legal precedent establishing that laches is not a consideration in Education
Law 3020-a proceedings.
The District asserts that Respondent has presented no evidence of any prejudice to
him whatsoever as a consequence ofthe delay between his August 27, 2013 admission
and the May 7, 2014 charges in the instant case, which were brought within the
applicable statute of limitations and which were based upon that admission. As the May
7, 2014 charges are based upon Mr. DiDonna' s own testimony, there can be no claim of
missing witnesses or lost evidence or of any changed circumstances in his status.
Respondent was on suspension without pay as ofthe October 4, 2013 decision of Hearing
Officer Lobel and continues to be in that status at least until September 2014.
Consolidation of Section 3020-a charges is restricted to the pre-hearing timeframe
and, as of right, at a time before commencement of the hearing by motion made at least
five days before the pre-hearing conference.
The District argues that under these circumstances, even if the equitable doctrine
of laches were applicable to Education Law 3020-a proceedings, and even if the
District' s delay from August 27, 2013 to May 7, 2014 in bringing the instant charges
could be deemed "unreasonable and inexcusable," the absence of actual prejudice would
defeat Respondent ' s claim that laches bars prosecution of the May 7, 2014 charges. See
e.g., Hopkins v. Alcas Corp., 63 A.D.3d 1342, 1344-45, 880 N.Y.S.2d 754, 757 (3d Dept.
2009)
In a 3020-a case presented by Respondent, Hearing Officer Adelman found that
the Board could not bring charges that were based upon the tenured employee' s
conviction of a crime that were six years old in one case and seven years old in another.
The hearing officer found that he was bound by Education Law 3020-a' s three-year
statute of limitations, the same position the District takes here, i.e. , that the charges
concerning the Respondent ' s giving illegal drugs to another person having been brought
14
within three years of the date of the alleged conduct, are timely and the hearing officer
should promptly proceed with their disposition.
Based on the entire record before me, Respondent's Motion to Dismiss the May
disciplinary 2014 charges is granted.
Respondent's possession and sale of hallucinogenic mushrooms were
contemporaneous acts that occurred on one day, December 8, 2012, in what is reasonably
construed as a single set of events. The death of the person to whom he gave the
mushrooms led police to DiDonna. DiDonna could not have given the controlled
substance to a person unless he had the illegal drug in his possession. It is fair to
conclude that, if Respondent had not given the illegal drug to Mr. Conlon, it is highly
unlikely that his possession of the mushrooms would have been discovered the next day.
Regardless of how DiDonna's possession and sale of the mushrooms were discovered,
however, it is clear that the acts were inextricably entwined.
The District's Superintendent was aware that Respondent had been arrested on
charges related to possession of a controlled substance and sale of a controlled substance
as early as the day the arrests were made. At the very least, on that day, Dr. Padalino was
told by the New York State Police that Mr. DiDonna had been arrested on multiple drug
charges. On December 10,2012, Dr. Padalino wrote an email message, which stated that
Matthew DiDonna had been arrested on multiple drug charges over the weekend and
would not be at work that day. In the unlikely event that Dr. Padalino did not know the
nature of the drug charges that had been preferred, he did have the ability to inquire.
Given the size of the community and the fact that Dr. Padalino was aware of the arrest of
a teacher in the District on multiple drug charges, it is extremely unlikely that he was
unaware ofthe December 11 , 2012 article in the Daily Freeman, which stated that
DiDonna had been charged with possession and sale of a controlled substance. By May
30, 2013, Dr. Paladino had received the Ulster County District Attorney's proposed press
release, which stated that DiDonna had given hallucinogenic mushrooms to a friend.
Thus, by June 5, 2013, the date the Board of Education found probable cause for the first
15
set of disciplinary charges, the District was aware that DiDonna had been charged with
sale of a controlled substance.
The District takes the position that, not until August 27, 2013, the second and last
day of hearings of the charges before Hearing Officer Lobel, did it have evidence
sufficiently reliable upon which to bring charges concerning DiDonna' s alleged sale of a
controlled substance before the Board of Education for a finding of probable cause. That
assertion is incorrect. Criminal convictions, which require a standard of proof higher
than is necessary to sustain disciplinary charges brought pursuant to Education Law
3020-a, are frequently attained absent a guilty plea or other admission of guilt.
Similarly, Education Law 3020-a charges are frequently sustained in the absence of the
tenured employee' s admission of guilt. The District cannot blame its failure to bring the
instant charges earlier on the absence of an admission of guilt from Mr. DiDonna,
It is clear that the District was disappointed by the penalty imposed by Hearing
Officer Lobel in SED Case No. 22,458, and seeks to have this hearing officer assess a
penalty for what is essentially the same conduct.
Education Law 3020-a provides that, ' [n]o person enjoying the benefits of tenure
shall be disciplined . . .. except for just cause."
While it is true that the principle of double jeopardy derives from the Constitution
and arises in the context of criminal law, the just cause standard by which a tenured
teacher' s conduct is measured requires a degree of fairness that makes the concept
underlying that principle applicable to the statutory process for disciplining tenured
teachers.
In this case, the District knew about the alleged sale of drugs before it brought
the first set of disciplinary charges against Respondent. The District learned that
DiDonna had been arrested on various drug charges and waited months after the arrest
before it brought the charges that allege that DiDonna was arrested for and later pled
16
guilty to the crime of criminal possession of a controlled substance in the fourth degree.
The District took time to assess the situation and decide what charges to bring. Unhappy
with the outcome of the first case, the District seeks to bring what is essentially the same
conduct before a different hearing officer in an effort to obtain a decision it finds more
acceptable. Putting Respondent through the ordeal of defending himself against a second
set of disciplinary charges and placing him in jeopardy of additional penalty for the same
conduct is unfair and inconsistent with just cause. Mr. DiDonna should have been free to
believe that, after he was charged and found guilty of the first set of charges, a new set of
charges based on the same incident could not be brought.
It is not accurate to say that, if bringing a second set of charges were permissible,
Respondent would not be prejudiced. Bringing charges that stem from the same event
piecemeal, by itself inflicts harm on the teacher. It cannot be overlooked that the need to
defend oneself again and maybe again, on multiple charges that could have been brought
together, would take a psychic toll on the charged party. In addition, after DiDonna was
found guilty of charges by Hearing Officer Lobel, Arbitrator Lobel considered the
penalty to be imposed upon an employee who had no prior disciplinary record. If
DiDonna were to be required to respond to additional charges on the same basic facts and
were he to be found guilty of one or more of those charges, the context in which a
subsequent hearing officer or hearing officers would be considering the penalty would be
with regard to an employee who had a previous disciplinary record. In other words, the
total discipline imposed for the same conduct, by multiple hearing officers might be
greater than that imposed by one hearing officer who heard all the allegations stemming
from that one incident in one proceeding.
17
Based on the foregoing, I issue the following:
DISPOSITION OF MOTION TO DISMISS
Respondent' s Motion to Dismiss the Charges is GRANTED and
the Charges against tenured teacher Matthew DiDonna are hereby
DISMISSED.
Dated: July 22, 2014
Delmar, New York
STATE OF NEW YORK}
}ss.:
COUNTY OF ALBANY }
~ ~ ~
, -sHEILAS:COLE, ftl1partial Arbitrator
AFFIRMATION
I, SHEILA S. COLE, hereby affirm upon by oath as hearing officer that I am the
individual described in and who executed this instrument, which is my Disposition of Motion to
Dismiss.
Dated: July 22, 2014
Delmar, New York
~ : = g ~
/SHEILA S. OLE