TO SEARCH this database type in a key word or phrase in the box in the upper left and any material containing the word or phrase will be displayed for your review.
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+.
January 3, 2011
Failure to satisfy all the procedural mandates when filing an appeal with the Commissioner of Education is a fatal defect
Appeal of Greg Johnston v the Board of Education of the Manhasset Union Free School District, Decisions of the Commissioner of Education, Decision No. 16,184
Greg Johnston alleged that Assistant to the Superintendent William Shine threatened physical violence against him during a meeting of the School Board and asked School Superintendent Charles Cardillo to take disciplinary action against Shine. When Cardillo advised Johnston that no disciplinary action would be taken against Shine, Johnston appealed to the Commissioner.*
The Commissioner dismissed Johnston’s appeal for a number of technical reasons, including Johnston's failure "to join necessary parties” – i.e., a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner.
Here, said the Commissioner, both Cardillo and Shine would clearly be affected if should the relief sought by Johnston be granted. However, there was nothing in the record to indicate that either Cardillo or Shine had been served with a copy of the notice of petition and petition filed by Johnston.
Further, said the Commissioner, Cardillo was not named in the caption of the petition or in the notice of petition. Accordingly, the Commissioner ruled that Johnston’s claims against both Cardillo and Shine must be dismissed.
Similarly, Johnston’s petition seeking Shine’s removal was also dismissed because the notice of Johnston's petition was defective.
Clearly any one of these omissions standing alone would consitute a fatal defect if it could not be timely cured.
In any event, the Commissioner said that even had Johnston been properly filed and served on the necessary parties, it would have been dismissed as it “fails to state a claim upon which relief may be granted.”
Although Johnston cited Education Law §2217 as the legal basis for his challenge to Cardillo’s failure to discipline Shine, the Commissioner pointed out that “such reliance is misplaced,” as that provision pertains only to official acts of a district superintendent of schools rather than a superintendent of a school district [emphasis supplied].
Further, Education Law §306 authorizes the Commissioner to remove a trustee, a member of a board of education, a clerk, a collector, a treasurer, a district superintendent, a superintendent of schools or other school officers. An assistant to the superintendent is a district employee and not a school officer subject to removal by the Commissioner pursuant to §306 of the Education Law.
As to Johnston’s asking the Commissioner to initiate disciplinary action against Shine, the Commissioner lacks authority to do so as it is the board of education, rather than the Commissioner of Education, in which the authority to take disciplinary action against a school district employee is vested.
* The decision to discipline an employee of a school district is a matter involving the exercise of discretion by the appointing authority. Two decisions by the Commissioner of Education, Gaul, Decisions of the Commissioner #14432 and Matter of Middleton, Decisions of the Commissioner #14431, address challenges to the exercise of discretion with respect to filing disciplinary charges against an employee of a school district or BOCES.
The Commissioner’s decision is posted on the Internet at:
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