ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

October 04, 2012

Compilation of adjudicated New York State IDEA impartial hearing decisions published



Compilation of adjudicated New York State IDEA impartial hearing decisions published

Professor Perry Zirkel, University Professor of Education and Law, Lehigh University, has published an annotated list of rulings involving Individuals with Disabilities Education Act (IDEA) and §504 of the Americans with Disabilities Act (ADA) handed down by 2nd Circuit United States Court of Appeals and New York State courts.

Professor Zirkel notes that with the exception of the District of Columbia, New York State is the leading jurisdiction in terms of adjudicated impartial hearings under IDEA.

The case entries are organized in approximate chronological order within common special education categories under IDEA, starting with eligibility, free appropriate public education (FAPE) and least restrictive environment (LRE), and ending with decisions under Section 504. Included are chapters addressing appropriate education, mainstreaming, discipline issues and attorney’s fees.

The compilation is posted on the Internet at http://www.p12.nysed.gov/specialed/dueprocess/NYand2dCirCaseLaw-PZ.pdf and may be downloaded without charge. 

October 03, 2012

Policy and Guidelines Prohibiting Discrimination and Harassment of Students


Policy and Guidelines Prohibiting Discrimination and Harassment of Students

On September 14, 2012 the Commissioner of Education issued an Emergency Rule entitled “Policy and Guidelines Prohibiting Discrimination and Harassment of Students” [I.D. No. EDU-07-12-00011-E] which took effect September 15, 2012.

The Rule was published in the October 3, 2012 issue of the New York State Register.

For a copy of this Emergency Rule sent via return e-mail, e-mail your request to publications@nycap.rr.comand type “Emergency Rule” in the subject line.

Collective bargaining agreement provided for layoffs of school instructors within separate categories of school instructors rather than within tenure areas


Collective bargaining agreement provided for layoffs of school instructors within separate categories of school instructors rather than within tenure areas

In this Article 78 action an individual laid off when his position was abolished by the school district contended that based on the duties he performed as a "school instructor/transition counselor", he was entitled to seniority rights within the "special subject tenure area" (tenure area) of school social worker. Accordingly, he argued, he was not the person with the least seniority within the school social worker tenure area at the time his position was abolished. Citing 8 NYCRR 30-1.8 [b] [9], he contended that the school district violated Education Law §2585(3) in terminating his employment as a result of its abolishing his position.

When Supreme Court dismissed his Article 78 petition, the individual appealed.

Sustaining Supreme Court’s ruling, the Appellate Division rejected the individual's arguments.

The court ruled that “the collective bargaining agreement (CBA) between the District and the union representing petitioner provided that layoffs of ‘school instructors’ would be affected [sic] within the four separate categories of school instructors identified in the CBA rather than within tenure areas; that separate seniority lists for purposes of layoffs are maintained for school instructors; and that, ‘[i]n the event that positions are abolished, school instructors shall not have rights to displace teachers in regular school programs having less seniority, nor shall teachers have rights to displace school instructors having less seniority.’"*

The Appellate Division ruled that “by accepting employment as a school instructor and entering into the CBA as a result of his membership in the union, the individual had waived any right to be credited for seniority in the tenure area of school social worker, [Antinore v State of New York, 49 AD2d 6].”

* In the event a board of education abolishes a position, the services of the tenured teacher having the least seniority in the school district or BOCES “within the tenure area of the position abolished shall be discontinued.” In City of Plattsburgh v Local 788, 108 AD2d 1045, the Appellate Division held that this element – seniority – for the purposes of layoff can neither be diminished nor impaired by the terms of a collective bargaining agreement.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06412.htm


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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 is available from the Public Employment Law Press. Click on http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.
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October 02, 2012

School district may be held liable for the negligent hiring and retention of its employees


School district may be held liable for the negligent hiring and retention of its employees

In an action alleging that a school employee sexually abused a student, Supreme Court denied the school’s and the school district’s motions for summary judgment dismissing the complaint.

The Appellate Division affirmed the lower court’s ruling, explaining that::

1. The school and the school district failed to make a prima facie showing that they were not negligent with respect to the hiring and retention of the school district employee who allegedly sexually abused the student; and

2. The school and the school district failed “to establish, prima facie, that they discharged their duty to provide adequate supervision of the infant plaintiff.”

The Appellate Division noted that although “an employer cannot be held vicariously liable ‘for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business,’ the employer may be held liable for the negligent hiring and retention of the employee.”

Further, said the court, “a school district has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision,” citing Mirand v City of New York, 84 NY2d 44

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06289.htm

October 01, 2012

Proving disciplinary charges


Proving disciplinary charges

An employee was found guilty of some of the thirty specifications of misconduct and incompetence filed against her. The hearing officer found the employee guilty of seventeen of these thirty specifications and recommended that she be dismissed from her position.

Specifications of misconduct and incompetence filed against the employee included allegations of excessive lateness, failure to properly carry out assigned duties, and actions in contradiction of established employer procedure. The hearing officer's findings and recommendations were adopted by the appointing authority and the individual was dismissed from her position. In sustaining the determination, the Appellate Division, Third Department noted that: the findings of a Hearing Examiner will be confirmed if they are supported by substantial evidence in the record even where conflicting evidence may have supported a different determination.

What constitutes "substantial evidence" is the significant issue in such cases. The decision illustrates some of the factors that courts weigh in determining whether there is substantial evidence to support the findings of the hearing officer.

The hearing officer found the employee guilty of seven of the 12 specifications concerning her alleged failure to perform assigned clerical tasks properly. The court, however, concluded that "only six of the seven specifications should be confirmed based upon the testimony proffered by petitioner's supervisor." Why? Because, explained the court, testimony that employee had typed the incorrect labels because the witness recognized the font from the individual’s typewriter was insufficient as there was testimony establishing that there were several typewriters in that office using that particular font. As the witness could not testify that she witnessed the employee preparing these folders and the employee denied that the error was hers, the court said it could not conclude that there was sufficient evidence to support this allegation.

The hearing officer also found the employee guilty of six of thirteen specifications alleging that she improperly performing her duties by exceeding her authority or violating the employer’s policy. In this instance the court held that the record supported the hearing officer's findings, noting that the employee was advised of these problems in her performance in various performance evaluation, together with the need for her to improve in these areas.

With respect to disciplinary specifications focusing on the employee's use of the workplace to conduct personal business and engage in lengthy personal telephone calls, the Appellate Division ruled that the testimony of her superiors, confirmed by a co-worker, was sufficient to prove the allegations.

The court also said that it did not find any error in the hearing officer finding the employee guilty of 36 of the 48 allegations that she had arrived late for work on specified dates. These allegations, said the court, were supported either by the employee's time sheets or by testimony from her superior or co-workers.

The Appellate Division remanded the matter to the employer for its consideration of the appropriate penalty to be imposed in view of its finding the employee not guilty of certain charges and specifications. The court also said that it noted that the employee had been given numerous oral admonitions and counseling memoranda warning her of "further disciplinary action," but held that such actions did not constitute "punishment" such that the present disciplinary proceeding could be deemed duplicative.

The decision is posted on the Internet at:

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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