Educator's involuntary transfer to another position in the school district appealed to the Commissioner of Education

Petitioner challenged the decision of the Board of Education of the School District [District] to transfer him to another elementary school building within school district.  He also sought expungement of a counseling memorandum issued by the District in connection such transfer.  New York States' Commissioner of Education, Dr. Betty A. Rosa, held that Petitioner's appeal must be sustained in part.

Petitioner had been employed by the District since 2017 and had tenure as a childhood education and special education teacher. Petitioner had also taught fourth and fifth grade English Language Arts and mathematics at one of the district’s elementary schools [School 1] for several years prior to the 2025-2026 school year.

In August 2025, the District placed Petitioner on paid administrative leave while it investigated a complaint against him alleging “improper interactions” with a fifth-grade student. On October 15, 2025, the District issued a counseling memorandum that, among other things, reassigned Petitioner to a teaching position in a different elementary school [School 2]. 

The memorandum noted that Petitioner “admitted to engaging in some of the behavior” alleged while maintaining that he “did nothing wrong.” An assistant superintendent concluded that Petitioner’s "continued placement at [School One was] inappropriate" and “reassigned” him to School Two.  This appeal to the Commissioner followed.

Petitioner argued that his involuntary transfer to School Two was disciplinary in nature.  For relief, Petitioner asked the Commissioner annul the transfer, reinstate him to his former position, and the expungement of the transfer and counseling memorandum from his personnel file. The District denied that Petitioner’s transfer was disciplinary in nature, arguing that Petitioner was a qualified candidate for the position at issue at School Two.

Initially, the Commissioner addressed two procedural matters, noting that that the Commissioner had not considered containing new allegations or exhibits or new material or affirmative defenses not set forth in the District's answer; and that the Commissioner did not accept "the new evidence submitted with [District's] memorandum of law or [consider Petitioner’s] evidence offered in response thereto'.

Turning to the merits, the Commissioner said although a board of education has broad authority to transfer teachers to assignments consistent with their certification and tenure areas, such authority, however, is not unlimited, noting that the New York State Court of Appeals has held that this power may be modified by a “contractual provision” and cannot be made in “bad faith”, citing Matter of Adlerstein v Board of Educ. of City of N.Y., 64 NY2d 90 and other decisions.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief. In the instant matter the District issued a counseling memorandum setting out adverse findings against Petitioner and transferred him to a different school “[a]s a result of” such findings".  Based on the plain language of the memorandum, the Commissioner said that she found that District “used reassignment as a means of discipline”.

District had argued that Petitioner’s transfer was made in the best interest of the District because there was “a vacancy in a special education program that was a match for his skill set.”  However, Dr. Rosa said she found the contemporaneous language of the memorandum to be more persuasive evidence of District’s intent than its explanation on appeal.  

Moreover, the Commissioner opined that District had not offered any evidence to suggest that it considered Petitioner a potential candidate for the vacant  position to which Petitioner had been transferred, which vacancy was posted on August 28, 2025, until it completed its investigation into Petitioner’s conduct and that the District merely stated that, at an unspecified time, its “administrative team … determined that [Petitioner] was the best candidate” for the position. The Commissioner then annulled Petitioner's transfer from School One to School Two.

In the words of Dr. Rosa:

"Petitioner also seeks “[e]xpungement of the counseling memo … as it imposes a disciplinary transfer/reassignment without due process.”  While I agree with [Petitioner] that any reference to the disciplinary nature of the transfer should be expunged from his personnel file, he has not met his burden of proving that the counseling memorandum should be expunged in its entirety. “It is not enough merely to mention a possible argument in the most skeletal way, leaving [an adjudicator] to … create the ossature* for the argument, and put flesh on its bones....” Thus, “While the timing of the counseling memorandum is relevant to assessing Petitioner’s transfer, Petitioner has failed to prove that the memorandum, in and of itself, was disciplinary in nature”.

* French: framework.

Finally, Commissioner Rosa opined that she was "compelled to comment on the serious findings contained within the counseling memorandum.  The memorandum recounts numerous breaches of the student/teacher relationship".  Petitioner “is an adult who knew, or should have known, how to interact appropriately with students.” Thus, although I am not privy to the information gathered by [the District] in its investigation, I am skeptical of the superintendent’s conclusion that Petitioner’s conduct “did not warrant [Education Law Section] 3020-a charges.”

The Commissioner sustained Petitioner's appeal and ordered the October 15, 2025, transfer of Petitioner from School One to School Two be annulled, "without prejudice to any further action which may be appropriate under the terms of this decision".

Click HERE to access Commissioner Rosa's decision posted on the Internet.

On August 11, 2026, New York State Comptroller Thomas P. DiNapoli announced the local government audits listed below had been posted on the Internet.

Click on the text highlighted in color to access the audit posted on the Internet.

Blue Point Fire District – Financial Management (Suffolk County) The board did not effectively manage fund balance and capital reserve funds. Because the board did not adopt budgets with reasonable estimates or have a fund balance and reserve fund policy, the board’s intentions regarding fund balance were not clear, reserves may have been overfunded, and real property tax levies may have been higher than necessary.

Moravia Joint Fire District – Procurement (Cayuga County) District officials did not always use a competitive process to procure goods and services in accordance with state law or the district’s procurement policy. Specifically, district officials could not support that goods and services totaling $589,180 were procured in the most economical manner.

Big Flats Fire District No.1 – Procurement (Chemung County) The board and district officials did not always use a competitive process to procure goods and services in accordance with best practices or the district’s procurement policy. As a result, there is an increased risk that goods and services were not obtained at a favorable cost, free from favoritism or for appropriate purchases.

Deansboro Fire District – Claims Auditing (Oneida County) Auditors reviewed 25 claims totaling $51,230. Except for minor discrepancies, which were discussed with district officials, the claims were adequately supported, for proper district purposes and authorized before payment. There were no recommendations as a result of this audit.

Holley Central School District – Building Access (Orleans County and Monroe County) District officials did not properly manage and monitor building access accounts and devices (key fobs). Specifically, of the accounts reviewed, the district had active, but unneeded, accounts with assigned key fobs in the system. As a result, there was a potential risk for unauthorized access to district school buildings, compromising building security and safety for students, teachers, staff and visitors.

Red Hook Central School District – Building Access (Dutchess County and Columbia County) District officials did not properly manage and monitor building access accounts and devices (badges). Specifically, of the accounts reviewed, the district had active, but unneeded, accounts with assigned badges in the system.

Batavia City School District – Building Access (Genesee County) District officials did not properly manage and monitor building access accounts and devices (key fobs). Specifically, of the accounts reviewed, the district had active, but unneeded, accounts with assigned key fobs in the system.

Central Square Central School District – Building Access (Oswego County, Onondaga County and Oneida County) District officials did not properly manage and monitor building access accounts and devices (badges). Specifically, of the accounts reviewed, the district had active, but unneeded, accounts with assigned badges in the system.

North Collins Central School District – Building Access (Erie County) District officials did not properly manage and monitor building access accounts and devices (badges). Specifically, of the accounts reviewed, the district had active, but unneeded, non-employee accounts with assigned badges in the system.

Orange-Ulster Board of Cooperative Educational Services (BOCES) – Building Access (Orange County and Ulster County) Orange-Ulster (OU) BOCES officials did not properly manage and monitor building access accounts and devices (badges). Specifically, of the accounts reviewed, OU BOCES had active, but unneeded, accounts with assigned badges in the system.

New York Mills Union Free School District – Building Access (Oneida County) Except for minor discrepancies, District officials properly managed and monitored the district’s 117 active building access accounts and devices (badges). However, district officials did not ensure that an additional 177 non-employee badges issued for first responders remained active. Although district officials reactivated all 177 badges when auditors brought this issue to their attention, there was a potential risk that first responders could not access district school buildings when needed, compromising building security and safety for students, teachers, staff and visitors.

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New York law does not bar a federal action that was earlier dismissed by a state court pursuant to the doctrine of res judicata without prejudice

Plaintiff [Appellant] served as the President and Chief Executive Officer of the Roosevelt Island Operating Corporation (“RIOC”), a public benefit corporation that governs New York City’s Roosevelt Island. 

On June 19, 2020, the New York Governor’s Office terminated Appellant, such dismissal to take effective immediately. That same day a senior adviser to then-Governor Andrew Cuomo informed a New York Post reporter that Appellant had been terminated following a complaint and investigation into alleged offensive comments purportedly made by Appellant. 

Quoting the said adviser as its primary source, a Post newspaper article soon followed captioned: “Roosevelt Island Operating Corp. head fired over ‘racially and sexually offensive’ remarks.” 

Appellant denied the claims attributed to the adviser by the Post. According to Appellant, Appellant's termination was a political reprisal for Appellant’s complaints concerning New York City authorities’ alleged refusal to address weather-related threats to Roosevelt Island. Appellant further alleged that the Governor’s Office sought to discredit her by feeding false allegations to the Post. 

After two unsuccessful state court proceedings, Appellant brought a federal “stigma-plus” constitutional claim for money damages pursuant to 42 U.S.C. §1983, arguing that her termination and alleged public smearing by public officials deprived her of a liberty interest without due process of law. 

The United States Court of Appeals for the Second Circuit Court [Circuit Court] said the question before it was "not whether [Appellant] states a meritorious §1983 claim, but whether the [federal] district court below correctly concluded that, under New York law, the doctrine of res judicata precludes [Appellant] from asserting any §1983 claim arising from her termination". 

The Circuit Court concluded that Appellant’s state court dismissals "do not preclude her instant §1983 claim", noting that the state court dismissals adjudicated Appellant’s  discrimination claims on the merits while expressly preserving Appellant’s right to refile her §1983 claim in another forum. 

The Circuit Court explained that under New York law, the doctrine of res judicata does not bar a claim that was previously dismissed without prejudice and with express leave to refile — even where other claims arising from the same transaction were dismissed on the merits. 

Accordingly, the Circuit Court reversed the federal district court’s judgment and  remanded the matter for further proceedings.

Click HERE to access the Court of Appeals, 2nd Circuit's decision posted on the Internet.

Audit reports for the New York State and New York City entities listed below issued on October 10, 2026

Click on the text highlighted in COLOR to access the audit.

Department of State – Office for New Americans: Connecting and Providing Immigrants With Legal Services (2023-S-35)

The Office for New Americans (ONA) offers New Americans help with accessing and navigating free services and supports through its grants and contracts with a statewide network of not-for-profit community-based providers. Through nine grant-funded programs, grantees provide referrals to legal service providers and assist New Americans with naturalization applications and citizenship interviews. Auditors identified several areas that ONA should address to improve its ability to connect and provide New Americans with legal services. For example, ONA lacks adequate information to assess and estimate potential unmet need and grantees’ ability and capacity to meet it. Auditors also found limitations in the quarterly reports that ONA requires from grantees that make them difficult to use and compare, as well as inconsistencies in grantees’ reported numbers that represent potential inaccuracies and/or lack of understanding about how to report their activity.

New York City Administration for Children’s Services & New York City Department of Youth and Community Development – Identifying, Reporting, and Providing Services for Youth at Risk of Sexual Human Trafficking in New York City (Follow-Up) (2025-F-14)
The 2014 federal Preventing Sex Trafficking and Strengthening Families Act requires the screening of children within the child welfare system for potential sex trafficking, timely reporting of sex trafficking incidents to law enforcement, and data collection on sex-trafficked and at-risk youth. A prior audit, issued in June 2022, examined whether New York City’s Administration for Children’s Services (ACS) and Department of Youth and Community Development (DYCD) identify, report on, and provide services for victims of child sex trafficking and those at risk of child sex trafficking. The audit found that ACS officials failed to support that they ensured staff and providers screened children to identify sex-trafficked victims or at-risk youth, and that DYCD does not have procedures requiring its providers to screen youth for indicators of trafficking. ACS and DYCD officials have made limited progress in addressing the issues identified in the original audit report. Of the initial report’s nine audit recommendations, two (addressed to DYCD) were implemented, three (two addressed to ACS and one to DYCD) were partially implemented, and four were not implemented (two addressed to each ACS and DYCD).

State Education Department – English Language Learners Programs (Follow-Up) (2025-F-28)
School districts are required to provide English as a New Language (ENL) service to all eligible English Language Leaners (ELLs) and are required to make Bilingual Education (BE) programs available in all home languages spoken by 20 or more ELLs of the same grade and home language districtwide. A prior audit, issued in September 2024, examined whether the State Education Department (SED) is adequately overseeing whether school districts are providing services to ELLs as required. The audit found school districts lacked BE programs and certified BE teachers, could not consistently provide sufficient documentation to support that ELLs completed the identification process and received required ENL services, and did not always submit accurate data to the Student Information Repository System or share information regarding ELL transfer students. SED officials have made significant progress in addressing the issues identified in the original audit report. All seven of the initial report’s audit recommendations were implemented.

State Education Department (Preschool Special Education Audit Initiative) – William T. Dillon Child Study Center at St. Joseph’s University, New York: Compliance With the Reimbursable Cost Manual (2024-S-21)
William T. Dillon Child Study Center (Dillon Center) at St. Joseph’s University, New York is a New York City-based organization authorized by the State Education Department (SED) to provide Integrated Special Class education services to children with disabilities who are between the ages of 3 and 5 years (referred to as SED preschool cost-based programs). For the audit scope, Dillon Center reported approximately $1.3 million in reimbursable costs for the SED preschool cost-based programs. Auditors identified $392,884 in reported costs that did not comply with requirements.

Olympic Regional Development Authority – Security Over Critical Payment Systems (2025-S-23)
The New York State Olympic Regional Development Authority’s (ORDA) mission is to bring economic and social benefits to the Adirondacks and Catskills by managing venues that offer recreational and athletic opportunities. ORDA is subject to New York State Office of Information Technology Services policies and standards. To process credit cards, ORDA must follow the Payment Card Industry Data Security Standard (PCI DSS). Auditors identified areas where ORDA could improve its overall governance of information technology, compliance with PCI DSS requirements, and certain security controls in place to minimize the various risks associated with unauthorized access to its systems and data, and communicated the details of these findings in a confidential report to ORDA officials.

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New York State Paid Family Leave regulation update: Construction employees

Effective January 1, 2027, the Paid Family Leave (PFL) law will include a new eligibility standard for certain construction employees who work for covered employer(s) that are under a collective bargaining agreement. The NYS Workers’ Compensation Board (Board) plans to propose amendments to the PFL regulations to help implement this change and align the regulations to the law.

This proposal will be published in the State Register and on the Board’s website. A Subject Number will be issued when it is published.

Questions?

Email: regulations@wcb.ny.gov.

Selected items posted on the Internet during the week ending August 7, 2026 which may be of interest to readers and reported here by NYPPL pro bono

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New York State may not prohibit access to certain Grievance Committee proceedings and records without making specific, on-the-record findings justifying confidentiality

After the Grievance Committee* informed Plaintiffs-Appellees that any resulting proceedings against twenty-one prosecutors would remain confidential, Plaintiffs-Appellees brought a 42 U.S.C. §1983 action contending that Section 90(10) of the New York Judiciary Law, which by default seals and mandates confidentiality of attorney grievance matters, violates their First Amendment right of access as applied to their complaints.

A federal District Court had ruled that a First Amendment presumption of access attaches to formal disciplinary hearings in the Second Department to records necessary to understand those hearings and to the final dispositions by the Grievance Committee. As  Section 90(10) impermissibly interferes with that right, the District Court found the New York State statute to be unconstitutional as applied against Plaintiffs-Appellees’ complaints. 

On appeal, the United States Court of Appeals, Second Circuit, [Second Circuit] explained that, despite the State’s contentions otherwise, Plaintiffs-Appellees’ claims are ripe and abstention, pursuant to O’Shea v. Littleton, 414 U.S. 488 (1974), is unwarranted.

The Second Circuit said that it concluded that the experience and logic test supports a qualified, presumptive First Amendment right of access to formal disciplinary hearings,  including "all pertinent records, and select dispositions of the Grievance Committee". 

The Second Circuit also held that New York State may not prohibit Plaintiffs-Appellees’ access to such proceedings and records pertaining to their complaints without making specific, on-the-record findings justifying confidentiality and affirmed the judgment of the District Court.

* Attorney Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts [“Grievance Committee”], which is one of three such committees for the Second Department.

Click HERE to access the Second Circuit Court's decision posted on the Internet.