Wednesday, September 14, 2011

Discretion to discipline staff

Discretion to discipline staff
Matter of Gaul, Decisions of the Commissioner of Education #14432
Matter of Middleton, Decisions of the Commissioner of Education #14431

The Gaul and Middleton appeals both involve the challenges to the exercise of discretion involving the filing of disciplinary charges against an employee. In Gaul, the issue concerned the board's filing disciplinary charges; in Middleton, the issue involved a decision not to file such charges.

The Gaul case

Port Jefferson Union Free School District board member Kenneth Gaul, together with “presumably parents of students” in the district challenged the district's decision to file disciplinary charges pursuant to Section 3020-a of the Education Law against a school principal, Dr. Esther Fusco, and her subsequent reassignment pending resolution of the disciplinary action.

Also challenged was the abolishment of the position encumbered by the district's former director of special education, Carole Noren.

The district's superintendent, Dr. Edward J. Reilly, had recommended a reorganization plan that would involve the abolishment of Noren's position but before the board acted Noren was offered, and accepted, a retirement incentive.

Among the issues considered by the Commissioner was the question of Gaul's “standing” to appeal a personnel determination by a school board. The Commissioner observed:

1. An individual may not maintain an appeal pursuant to Section 310 of the Education Law unless he or she “has suffered personal damage or injury to his or her civil, personal or property rights.”

2. Status as a resident of a district or as a parent of a student in the district does not operate to “automatically confer ... the capacity to seek review of personnel actions by a board of education.”

Ruling that the “unsubstantiated assertion that their children have been negatively impacted by Fusco's removal is insufficient to confer standing” to challenge the board's decision, the Commissioner dismissed this aspect of the appeal.

The Commissioner also ruled that the assertion that expenditures to replace Fusco were “wasteful” in contrast to be “unlawful” did not establish “the direct personal harm” essential to conferring “standing” to appeal.

The Commissioner further found that Gaul failed to show that the board “engaged in a willful violation or neglect of duty” by its filing disciplinary charges against Fusco.

Fusco, the district conceded, had received both the Principal of the Year Award in New York State in 1997 and the National Distinguished Principal Award in 1998. However, it filed “49 specifications ranging from relatively minor offenses ... to the more serious” against her.

This, said the Commissioner, indicated that “from the breadth and length of the disciplinary charges, as well as the remoteness of some of the allegations, the [board] pursued Fusco's removal with considerable zeal” but there is insufficient evidence that “any board member willfully violated or neglected a legal duty in approving Fusco's reassignment.”

Dismissing the appeal, the Commissioner pointed out that Section 1709(33) of the Education Law grants a board of education broad authority to manage the educational affairs of the district. “Inherent in this authority” is the power to abolish administrative positions and alter an administrator's assignment.

As to Gaul's challenging the “retirement incentive” accepted by Noren, the Commissioner rejected his claim that the incentive was “an unconstitutional gift of public funds.”

This argument, said the Commissioner, is without merit, noting that in Antonpoulou v Beame, 32 NY2d 126, the Court of Appeals ruled that providing such a benefit, if statutory or contractual, is lawful. He said the retirement incentive offered Noren was authorized by Chapter 41 of the Laws of 1997.

The Middleton appeal

After Beatrice Hudgins Middleton's son was exonerated of charges that he brought a “Category I weapon” to his first grade class, Middleton asked the school district to file disciplinary charges against school officials whom she alleged had lied during the investigation of the incident or at the disciplinary hearing that followed.

The Commissioner, after dismissing Middleton's appeal for technical reasons, addressed the merits of her complaint -- the failure of the district to initiate the requested disciplinary action against its staff members.

Commenting that it is the board of education that has authority to take disciplinary action against a school district employee, the Commissioner said that “a board of education has broad discretion to determine whether disciplinary action against an employee is warranted.”

All that is required is that the board have “a reasonable basis” for its determination not to file disciplinary charges against the individual.

* These determinations were made by then Acting Commissioner Cate.

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/

Challenging Adverse Personnel Decisions 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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