Thursday, November 10, 2011

Appealing a disciplinary termination


Stevens v McGraw CSD, App. Div., 261 AD2d 698, leave to appeal denied 93 NY2d 816

McGraw Central School District bus driver Arthur Stevens' failure to comply with Education Law Section 3813 proved fatal to his challenging his dismissal from his position following a disciplinary hearing pursuant to Section 75 of the Civil Service Law.

Section 75 disciplinary charges were filed against Stevens alleging that he permitted unacceptable behavior on his bus, was absent without leave, inaccurately reported his work time, and failed to comply with his supervisor's directives as well as with district rules and procedures.
The hearing officer found Stevens guilty of seven of the charges preferred against him and recommended that he be discharged. The district accepted the hearing officer's findings and recommendation.

When Stevens challenged his termination, the district raised the technical defense that he had failed to comply with notice requirements set out in Section 3813 of the Education Law.[1]

The Appellate Division affirmed a lower court's ruling dismissing Stevens' Article 78 action, holding that "the mere fact that he seeks only reinstatement to his former position, as opposed to reinstatement coupled with back pay and benefits, does not exempt him from the requirements of Education Law Section 3813, as a review of the petition makes clear that [Stevens] nonetheless primarily is seeking to enforce a private right."

Section 76 of the Civil Service Law gives a person found guilty of charges brought pursuant to Section 75 a statutory right to appeal the penalty imposed to the responsible civil service commission or, in the alternative, to the courts pursuant to Section 78 of the CPLR. However, the Appellate Division's ruling in Stevens holds that an employee of a school district or a BOCES, as a condition precedent to his or her filing an Article 78 appeal challenging the disciplinary action, must file a timely notice of claim with the district or BOCES.

In contrast to the court’s ruling that Stevens had to comply with the mandates in Section 3813, in Sephton v Board of Education of the City of New York, 99 AD2d 509, the Appellate Division, Third Department, ruled that "the 'tenure rights' of teachers are ... considered a matter in the public interest and therefore Section 3813 is not applicable to cases seeking to enforce such rights."

The fact that the Civil Service Law provides an aggrieved employee with a statutory right to appeal an adverse disciplinary action to a civil service commission or to the courts should have the same standing with respect to such an employee's "tenure rights" as does Section 3020-a.5 insofar as the "tenure rights" of educators are concerned.

In any event, although it appears that exceptions to the Section 3813 "notice of claim" requirement exist, it would be prudent for an aggrieved party to file a timely notice of claim with a school district pursuant to Section 3813 rather than try to persuade a court that it was not necessary to do so in a particular situation at some later date.


[1] Section 3813 Presentation of claims against the governing body of any school district or certain state supported schools. 1. No action or special proceeding… shall be prosecuted or maintained against any school district, board of education, board of cooperative educational services, school … or any officer of a school district, board of education, board of cooperative educational services, or school … unless it shall appear… that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim [emphasis added], and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment

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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