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Wednesday, January 23, 2013

Postings on Internet social networks deemed inappropriate may result in disciplinary action

Postings on Internet social networks deemed inappropriate may result in disciplinary action
1 .Rubino v City of New York, 34 Misc 3d 1220(A)
2. In re Tenure Hearing of Jennifer O’Brien, A-2452-11T4, Appellate Division, New Jersey Superior Court
3. Fire Department v Palleschi, OATH Index #551/11
4. Decisions of the Commissioner of Education, Decision 16,121

The posting of material on social networks such as Facebook alleged to be inappropriate has resulted in disciplinary action being initiated against educators; students and employees.

Examples of such disciplinary actions are set out below:

The Rubino case: This decision by New York State Supreme Court Justice Barbara Jaffee illustrates the consequences that may result from a posting on an individual’s Facebook "wall" that the employer subsequently determined was inappropriate. In this instance the posting by a teacher of material deemed inappropriate resulted in disciplinary charges alleging “misconduct, neglect of duty and conduct unbecoming her profession” being filed against the educator by the appointing authority. [See 34 Misc 3d 1220(A].

The O’Brien case: In re Tenure Hearing of Jennifer O’Brien, No. A-2452-11T4 (N.J. Super. Ct., App. Div. Jan. 11, 2013), the Appellate Division, New Jersey Superior Court, sustained a decision by an administrative law judge, affirmed by New Jersey’s Commissioner of Education, upholding the school district’s termination of an elementary school teacher for posting derogatory remarks about her students on Facebook. The court decided that the teacher’s remarks were not protected by the First Amendment of the U.S. Constitution as the remarks were not made on a matter of public concern.

The Palleschi case: In Fire Department of the City of New York v Palleschi, OATH Index #551/11, a New York City emergency medical technician [EMT] was served with disciplinary charges that alleged such postings resulted in “bringing the agency into disrepute and showing disrespect to the public.” OATH Administrative Law Judge Joan Salzman recommended the termination of  the EMT, who admitted that he had posted private and confidential patient information on his Facebook page, "where 460 of his friends could see it for their amusement."

The Appeal of G.I. case: Commissioner of Education Decision 16,121 considered disciplinary action initiated against a student alleged to have engaged in cyber-bullying. The appeal, Appeal of G.I, on behalf of her daughter K.I., from action of a Board of Education, concerned an alleged threatened “fist fight” resulting from a dispute following the publication of "inappropriate statements" about C.H. on C.H.’s “Facebook” page placed there by K.I.and another student, D.N. K.I. admitted to her teacher that she and D.N. had C.H.’s Facebook password and that they posted the derogatory statements. The Commissioner of Education sustained the school principal’s decision, approved by the school superintendent and the school board, to remove K.I. from her classroom for one day and have her spend the day under the supervision of an administrator.

In any event, there is another lesson here: posting information on a social network may prove to be an example of the Doctrine of Unintended Consequences should such postings be targeted for the purposes of discovery in the course of litigation or arbitration. 

This is a legal issue that courts being asked to address with increasing frequency. In Patterson v Turner, 88 AD3d 617, the court ruled that material on Facebook, if relevant, was subject to discovery while in Abrams v. Pecile, 83 A.D.3d 527, the court declined to permit discovery of material posted on social network sites because the party seeking such access was unable to demonstrate that such material would be relevant in the lawsuit. Presumably the same criteria would be used in situations involving efforts to obtain information posted on a social network account such as Facebook in an administrative disciplinary action or an arbitration.

The Rubino decision is posted on the Internet at:

The O’Brien decision is posted on the Internet at:

The Palleschi decision is posted on the Internet at:

The Commissioner’s decision in Matter of K.I. is posted on the Internet at:

Handbooks focusing on New York State and Municipal Public Personnel Law:

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html


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