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Monday, June 27, 2011

Constructive notice of potential acts of misconduct provided by an Internet posting

Constructive notice of potential acts of misconduct provided by an Internet posting
Salamino v Board of Educ. of the City School Dist. of the City of New York, 2011 NY Slip Op 05408, Appellate Division, First Department

In this action, the Appellate Division concluded that a teacher served with disciplinary charges alleging that she had engaged in sexual misconduct with a "student" had constructive notice* that such behavior constituted misconduct in violation of the relevant collective bargaining agreement.

As the collective bargaining agreement [CBA] did not define the term “student” for the purposes contract disciplinary procedure, the arbitrator relied Regulation A-101, to determine if the individual with whom the teacher had allegedly engaged in sexual misconduct was a “student” and so found.

The Appellate Division, noting that Regulation A-101 did not purport to state a definition of the term “student," decided this did not mean that the arbitrator acted arbitrarily and capriciously in using Regulation A-101 to determine if the individual involved with the teacher in alleged sexual misconduct was a student

Turning to the teacher’s argument that she was disciplined without just cause within the meaning of Education Law §3020[1] because the CBA did not indicate that Regulation A-101 could be used to determine the meaning of the term "student" for the purposes of the CBA, the Appellate Division pointed out that the Chancellor's Regulations were “posted on the Board of Education website, and thus the teacher was on reasonable notice, under the objective circumstances, of a potential sexual misconduct charge.”

The court then held that the penalty of terminating the teacher from her position “could not be construed as disproportionate to the challenged conduct, inasmuch as CBA Article 21(G)(6) explicitly called for "mandatory" termination in cases of sexual misconduct.”

* Constructive notice is a “legal fiction” that deems that a person has notice even though actual notice was not personally delivered to the individual.

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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