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State of New York vs. COVID-19 - Governor Andrew M. Cuomo periodically updates New Yorkers on the state's progress during the ongoing COVID-19 pandemic. The latest reports of the number of new cases, the percentage of tests that were positive and many other relevant data points concerning COVID-19 are available at forward.ny.gov.

N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

June 21, 1999

Waiving the right to tenure

Waiving the right to tenure
Costello v East Islip UFSD, 673 N.Y.S.2d 468

On May 20, 1997 a state Supreme Court justice ruled that a school board may not require a prospective teacher to waive his or her right to attain tenure as a pre-requisite to employment. Now the Appellate Division has affirmed that decision.

While agreeing that a teacher has the right to waive tenure when "the waiver is freely, knowingly, and openly arrived at without the taint of coercion or duress," the Appellate Division pointed out that a school board lacks the authority to adopt a policy eliminating the tenure system in its entirety. Presumably the court felt that applicants were placed under some form or coercion or duress when confronted with a policy that required them to waive their right to tenure as a condition of their being selected for employment.

The Appellate Division said that East Islip had attempted to eliminate the tenure statutes set out in the Education Law and substitute a system of "tenure by contract" whereby the teacher's tenure rights would "automatically terminate at the expiration of [their employment] contract." This, said the court, changed "the system of permanence" reflected in the Education Law, explaining:

"[t]he tenure system is a legislative expression of a firm public policy determination that the interests of the public in the education of our youth can best be served by a system designed to foster academic freedom and to protect competent teachers from the threat of arbitrary dismissal."

However, there have been other attempts to change the State's traditional "teacher tenure" system.  A bill, Assembly 6707, entitled The Children's Right to Education Act of 1997, was introduced in the State Legislature. It is described by its sponsors  as a measure "to improve the performance and accountability of teachers and administrators by replacing permanent tenure with five year renewable contracts."   

If enacted into law, a teacher or administrator who satisfactorily completes his or her probationary period would be eligible for a five-year renewable contract. Teachers and administrators who hold "tenured status" on the effective date of the amendment would be given a five-year renewable contract commencing on the effective date of the amendment.

June 15, 1999

Rules adopted by administrative agency to implement a statute must be consistent with the statute and legislative intent

Rules adopted by administrative agency to implement a statute must be consistent with the statute and legislative intent
Seaman v Downtown Partnership, 991 F. Supp. 751

 The Seaman case illustrates the fact that courts will approve administrative rules and regulations implementing a law only to the extent that such rules and regulations are consistent with the statute.

The federal Family Medical Leave Act [FMLA] provides that an employee who has worked 1,250 hours over a 12-month period is eligible for up to 12 weeks of unpaid leave for a qualified purpose.

An employer told an employee that she could take FMLA leave although she had not yet been working for the company for 1,250 hours, only to later change its mind and rescind its approval. The employee complained, contending that under the federal Department of Labor's regulations [29 CFR 825.110(d)] once the employer approves an employee's FMLA leave, "the employer may not subsequently challenge the employee's eligibility."

The employer, on the other hand, argued that 29 CFR 825.110(d) was invalid -- and won.

Federal District Court Judge Catherine C. Blake, noting that Congress provided that employees are not eligible for FMLA leave unless they worked at least 12 months and for 1,250 hours, said that "nothing in ... the Act ... indicates that [the Department of Labor] has the power to require employers to waive this eligibility requirement ...." To hold otherwise, said the Court, would, in effect, allow the Department of Labor to rewrite the statute.

According to the ruling, although the regulation might "be good policy," it is up to Congress, not the Department of Labor, to amend the FMLA's eligibility requirements.

June 7, 1999

Sending a threatening letter to a public official

Sending a threatening letter to a public official

Imagine that you receive a letter stating: "you should be killed instantly." The letter also says you should be attacked "in a violent and brutal way."  

A letter containing these very statements  was received by an elected official. Convinced that his life might be in danger,  he contacted the police. As a result, the writer, Karen Henderson, was charged with aggravated harassment in the second degree [§240.30 of the Penal Law].

At the proceeding that followed, Henderson attempted to have the charge thrown out on the theory that her letter was a form of free speech protected by the First Amendment. Briarcliff Manor Village Justice Weinstein ruled that the threatening statements fell within a category of speech that is not subject to constitutional protection, citing Chaplinsky v New Hampshire, 315 US at 568. [People v Karen Henderson, Briarcliff Manor Village Court}

In Chaplinsky the U.S. Supreme Court said that "there are certain well-defined and narrowly limited speech [the] prevention and punishment of which have never been thought to raise any constitutional problem." These include statements that are lewd and obscene, profane, libelous and insulting or "fighting words," which "by their very utterance inflict injury or tend to incite an immediate breach of the peace."

Holding that statements in Henderson's letter were profane, extremely inflammatory and "by any measure, threatening," Justice Weinstein refused to suppress the statements and ruled that prosecuting Henderson under §240.30 was Constitutional.


Public Personnel Law E-books

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on https://booklocker.com/books/5215.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on http://booklocker.com/books/7401.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

Disability Leave for fire, police and other public sector personnel - A 1098 page e-book focusing on disability benefits available to public officers and employees employed by New York State and its political subdivisions. For more information click on http://booklocker.com/books/3916.html