Panel Upholds Education Law's Bar on Testifying

, New York Law Journal

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A public school principal cannot be compelled to testify in a disciplinary proceeding before the Special Commissioner of Investigation, a unanimous Appellate Division, First Department, panel ruled Thursday. Justice Helen Freedman (See Profile) wrote in Condon v. Sabater, 401175/12, that the state's Education Law protects Department of Education employees from having to testify in disciplinary proceedings against their will. She was joined by Justices Peter Tom (See Profile), Rolando Acosta (See Profile) and David Saxe (See Profile).

The case involves assistant principal Patricia Sabater, who was subpoenaed by the Special Commissioner of Investigation (SCI) as part of a probe into her school's alleged failure to deal properly with a sexual harassment complaint between students. The SCI was created in 1990 to aid with investigations of educational matters, and reports to the DOE. Sabater refused to testify, citing the Education Law's protection against testifying in DOE disciplinary proceedings.

The SCI argued that the protection did not apply to investigations before the SCI. It cited the Court of Appeals' 2012 decision in Rosenblum v. New York City Conflicts of Interest Bd., 18 NY3d 422, which upheld a penalty against a principal imposed by the city's Conflicts of Interest Board for trying to get special treatment from the city for his son, even though the Education Law says only the DOE can discipline its employees.

Freedman said the Rosenblum decision was different because the Conflicts of Interest Board did not impose discipline for conduct related to educational duties. The SCI, by contrast, was created specifically to help with DOE disciplinary matters. "Thus, forcing a tenured teacher or assistant principal to testify in an SCI proceeding is tantamount to forcing that employee to testify in a DOE disciplinary proceeding, which directly conflicts with state law, Education Law 3020(3)(c)(i)," Freedman wrote.

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