Tuesday, December 17, 2013

New York City’s Special Commissioner of Investigation may not compel a tenured educator to testify in the course of an investigation it is conducting


New York City’s Special Commissioner of Investigation may not compel a tenured educator to testify in the course of an investigation it is conducting
2013 NY Slip Op 08368, Appellate Division, First Department

New York City's Special Commissioner of Investigation for the New York City School District (SCI) is an arm of the City Department of Investigation. It has investigatory and subpoena power and reports the results of its investigations to the Department of Education (DOE), which has the power to initiate disciplinary actions against employees.

A mother complained to the police about alleged sexual harassment of her child, who attended a New York City school, by other students. This ultimately led to a report to, and an investigation by, the SCI as to whether certain DOE employees failed to act on the mother’s complaint.

The Special Commissioner subpoenaed a tenured assistant principal in the school to testify in the course of the investigation. The assistant principal appeared in compliance with the subpoena and “gave pedigree information,” but invoked her rights under Education Law §§3020(1) and 3020-a(3)(c)(i) not to testify further.

Supreme Court, New York County denied SCI’s petition to compel the assistant principal to comply with its subpoena ad testificandumand dismissed the proceeding. The Appellate Division affirmed the lower court’s determination.

The Appellate Division explained that forcing a tenured teacher or school administrator to testify in an SCI proceeding is tantamount to forcing that employee to testify in a New York City Department of Education disciplinary proceeding. To permit SCI to do so, said the court, would directly conflict with state law and “would eviscerate” relevant provisions set out in the Education Law §§3020(1) and 3020-a.

§§3020(1) and 3020-a govern disciplinary action taken against such tenured employees and establish procedures specifically designed to protect them at disciplinary proceedings. Indeed, noted the Appellate Division, Education Law §3020-a(3)(c)(i)(c) specifically provides that the tenured employee shall not be required to testify at any disciplinary hearing.

Citing Board of Education of City School District of City of New. York v Mills, 250 AD2d 122, leave to appeal denied 93 NY2d 803, the Appellate Division noted that “no local legislative body is empowered to enact laws or regulations which supersede State statutes, particularly with regard to the maintenance, support or administration of the educational system."

The decision is posted on the Internet at:
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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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