IN THE MATTER OF GARY FLEISHMAN

COIB CASE NO. 2002-528

MAY 20 , 2004

SUMMARY: The Board concluded a settlement with a Department of Education guidance counselor in COIB v. Gary Fleishman, COIB Case No. 2002-528 (2004). Mr. Fleishman admitted that he met, on school property, near his office in the school, the mother of a student who attended JHS 189, and subsequently offered to provide and did provide counseling to this student’s parents, who were separated, privately for a fee. He conducted about 30 sessions with the parents and charged $100 per session. Mr. Fleishman acknowledged that he violated New York City Charter provisions that prohibit public servants from misusing or even attempting to misuse their official positions for private gain. As part of the settlement, the Conflicts of Interest Board fined Mr. Fleishman $1,000, and noted that it had considered the following circumstances in connection with the penalty and the nature of the violation: (1) that the Department of Education fined Mr. Fleishman $5,000; (2) that Mr. Fleishman made restitution to the parents of the money they had paid him, in the amount of $1,300, provided proof that his lawsuit in Small Claims Court against the parents for additional fees has been dismissed, and promised to seek no further money from them; (3) that Mr. Fleishman has agreed to refrain from counseling privately, for pay, children who attend the City public school in which he is employed and relatives of those children; and (4) that Mr. Fleishman was removed as guidance counselor at JHS 189 and would be reinstated to his previous position only after reaching a separate agreement with the Department of Education that sets forth his obligations and penalties as described above. The Board took the occasion of this Disposition to remind City officials that public servants may not use their City positions to obtain a financial gain or a private or personal advantage for themselves or their family members or associates. Officials in a position of authority over children and their families who may be vulnerable and in need of professional help should not prey upon those families for private gain.

STIPULATION AND DISPOSITION

Respondent Gary Fleishman states the following:

1.Until recently, I served as a tenured guidance counselor assigned to JHS 189 in Queens, in the New York City Department of Education, and have worked in the New York City public schools as a teacher or counselor from 1992 to the present. I am currently assigned to a district office in Queens Region 3. As such, I am and was at all relevant times a public servant within the meaning of City Charter § 2601(19).

2. I met, on school property near my office in JHS 189, the mother of a student who attended JHS 189, and subsequently offered to provide and did provide counseling to this student’s parents, who were separated, privately for a fee. I conducted approximately 30 sessions with the parents and charged $100 per session.

3. I freely and voluntarily admit that my conduct in finding private, paying clients among parents of students attending the school where I worked violated City Charter §§ 2604(b)(2) and (b)(3), in that I obtained a contract indirectly through my position as a public servant. Those Charter sections provide as follows:

“No public servant shall engage in any business, transaction or private employment, or have any financial or other private interest, direct or indirect, which is in conflict with the proper discharge of his or her official duties. [Section 2604(b)(2).]

No public servant shall use or attempt to use his or her position as a public servant to obtain any financial gain, contract, license, privilege or other private or personal advantage, direct or indirect, for the public servant or any person or firm associated with the public servant. [Section 2604(b)(3).]”

4. In recognition of the foregoing, I agree to pay a fine to the New York City Conflicts of Interest Board in the amount of $1,000 by money order or certified check upon my execution of this agreement. I understand that a higher fine would have been imposed based on the nature of my violation, and the Board has considered the following circumstances here: (1) I have been fined $5,000 by the Department of Education and provide herewith to the New York City Conflicts of Interest Board a copy of my money order or certified check made out to the New York City Department of Education; (2) I have made restitution to the parents to whom I provided private counseling for pay, in the amount of $1,300, and provide herewith to the New York City Conflicts of Interest Board a copy of my money order or certified check made out to the mother of the student from JHS 189; (3) I agree, and have agreed with the New York City Department of Education, in writing, to refrain from counseling privately, for pay, children who attend the City public school in which I am employed and relatives of those children; (4) I have provided to the New York City Department of Education, and provide herewith to the New York City Conflicts of Interest Board, a copy of the final disposition of a case I commenced in the Small Claims Part of the Civil Court of the City of New York in Queens against the parent or parents of the JHS 189 student, and represent that the Court has dismissed my claim and that I shall not pursue any further claims or demands for money against the parents of that student; and (5) that I had been removed as guidance counselor at JHS 189, and that I will be reinstated to my previous position under an agreement with the New York City Department of Education that sets forth my obligations with respect to and the penalties set by that Department.

5. I agree that this statement is a public and final resolution of the charges against me. Furthermore, I agree to provide a copy of this Disposition to any City agency where I apply for employment upon the request of such agency or in response to any inquiry calling for such information, and in any event, prior to accepting employment with the City.

6. I knowingly waive on my behalf and on behalf of my successors, any rights to commence any judicial or administrative proceeding or appeal before any court of competent jurisdiction, administrative tribunal, political subdivision, or office of the City or the State of New York or the United States with respect to this proceeding of the New York City Conflicts of Interest Board, and to contest the lawfulness, authority, jurisdiction, or power of the New York City Conflicts of Interest Board in imposing the penalty which is embodied in this agreement, and waive any right to make any legal or equitable claims or to initiate any legal proceedings of any kind against the Conflicts of Interest Board or any employees thereof relating to or arising out of this matter.

7. Any material misstatement of the facts of this matter, including of the Disposition, by Respondent or by his attorney or agent, shall, at the discretion of the New York City Conflicts of Interest Board, be deemed a waiver of confidentiality of this matter.

8. I confirm that I have entered into this agreement freely, knowingly, and intentionally, without coercion or duress, and after having been represented by an attorney of my choice, that I accept all terms and conditions contained herein without reliance on any other promises or offers previously made or tendered by any past or present representative of the New York City Conflicts of Interest Board, and that I fully understand all the terms of this Disposition.

9. This Disposition shall not be effective until all parties below have affixed their signatures below.

10. The New York City Conflicts of Interest Board accepts this Disposition and the terms contained herein as a final disposition of the above-captioned matter only and, accordingly, affirmatively states that, other than as specified herein, no further enforcement action will be taken by the New York Conflicts of Interest Board against Respondent based upon the facts and circumstances set forth herein, except that the New York City Conflicts of Interest Board shall be entitled to take any and all actions necessary to enforce the terms of this Disposition.

  1. This Disposition constitutes the entire understanding between the parties.

Dated: May 19, 2004 ______/s/______

Gary Fleishman

Respondent

Dated: May 19, 2004 ______/s/______

Peter Piddoubny, Esq.

Counsel to Respondent

Dated: May 20, 2004 ______/s/______

Steven B. Rosenfeld, Esq.

Chair/Board Member

NYC Conflicts of Interest Board