October 20, 2020

An individual may be subjected to disciplinary action for alleged off-duty misconduct having a clear nexus to his status as an employee

During an investigation by the New York City Department of Education's [DOE] Office of Special Investigations [OSI] into a complaint that confidential student information had been posted on the Internet, the plaintiff [Petitioner], a DOE employee, acknowledged that he was involved in posting the information at issue on the website of United Federation of Teachers (UFT) Solidarity, "a political caucus within the UFT."

Contending that OSI has no jurisdiction to investigate his alleged misconduct because he undertook this activity as a private citizen and education activist, not in his capacity as a DOE employee, Petitioner filed a CPLR Article 78 action asking the court to annul DOE's determination that he had violated Chancellor's Regulation A-820 and the federal Family Educational Rights and Privacy Act* [FERPA].

The Appellate Division said that Petitioner's argument that OSI has no jurisdiction in this matter "is unavailing," opining that Petitioner's misconduct has a clear nexus to his status as a DOE employee. Citing Board of Educ. City of N.Y. v Hershkowitz, 308 AD2d 334, leave to appeal dismissed 2 NY3d 759, the Appellate Division explained that OSI is charged with investigating misconduct within the City of New York school district, which is not limited to misconduct committed by a DOE employee acting within the scope of his employment.

The court noted that OSI had rationally determined that by posting the confidential student information at issue, which included transcripts, attendance records, and grade-change records, Petitioner had violated the FERPA and Chancellor's Regulation A-820, which conforms to federal regulations promulgated pursuant to FERPA.**

* See 20 USC § 1232g[b][2]. 

** See 34 CFR part 99.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05703.htm

 

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