Teaching about controversial issues in the classroom of a public school

A tenured physical education educator [Petitioner] appealed certain actions by the Board of Education [Respondent] and its Superintendent [collectively “Respondents”] involving the Respondent’s Policy 4810, “Teaching About Controversial Issues”.*

In response to a formal complaint against Petitioner submitted by a student alleging Petitioner made derogatory remarks to students in violation of the Dignity for All Students Act (“Dignity Act”), Respondents commenced a Dignity Act investigation and placed Petitioner on paid administrative leave. Petitioner met with district representatives and responded to the allegations against him. Immediately following this meeting, Respondents:

1. Restored Petitioner from paid administrative leave; and

2. Issued a counseling memorandum to Petitioner advising him that "the investigation had concluded" and, “although a technical violation of [the Dignity Act] was not found' ... going forward, Petitioner should refrain from engaging in “‘debates’ and/or conversations about ‘controversial’ political and societal topics” that fell outside the scope of the physical education curriculum.  The memorandum was added to Petitioner’s personnel file. Petitioner sent Respondents a “Letter of Counsel Rebuttal and Complaint” and ultimately appealed the Respondent's actions to the Commissioner of Education, alleging he "was wrongfully suspended and that the counseling memorandum constituted an impermissible reprimand imposed without the procedural protections of Education Law § 3020-a. Petitioner further alleged that Respondents discriminated against his religious beliefs in violation of Title VII of the Civil Rights Act of 1964 and that the restrictions imposed upon him by the counseling memorandum violate his First Amendment rights.  

For relief, Petitioner sought the removal of the counseling memorandum and any mention of his suspension from his personnel file as well as a name-clearing hearing.  Petitioner additionally sought unspecified relief “for neglect of duties in the form of remediation, training,” and prevention of any “future retaliation” against him.

After addressing several procedural issues, the Commissioner addressed the merits of Petitioner's appeal, holding:

1.  Petitioner failed to prove that Respondent placed him on administrative leave for an unreasonable amount of time;

2.  Citing Holt v Board of Educ., Webutuck Cent. Sch. Dist., et al.,* the Commissioner noted the Court of Appeals articulated a distinction between “admonitions to a teacher [that] are critical of performance” and “disciplinary determinations of a punitive nature.” The former, intended to address “relatively minor breach[es] of school policy,” may be imposed by management in its discretion while the latter may only be imposed following a hearing. 

The Commissioner identified two primary factors to be considered in determining whether written criticism constitutes an impermissible reprimand:  

(1) Whether the letter is directed towards an improvement in performance or a reprimand for prior misconduct; and 

(2) The severity of the misconduct and the admonition/reprimand, citing Appeal of Rogers, 63 Ed Dept Rep, Decision No. 18,364 and Matter of Richardson, 24 id. 104, Decision No. 11,333.

The Commissioner found that the counseling memorandum constituted an administrative evaluation. The Commissioner further opined that the nature of the misconduct was relatively minor:  Petitioner’s unnecessary interjection of his opinions—on topics including finances, politics, and government—into discussions that had no relationship to physical education class , noting that Respondents’ investigation indicated that these remarks did not rise to a violation of the Dignity Act. 

Concluding that Respondents’ admonition to Petitioner, which was factual in nature, explained why Petitioner’s actions and statements were inconsistent with board policy and the district’s expectations, the Commissioner opined that "As such, there is no basis to expunge the counseling memorandum from [Petitioner’s] personnel file".

As to Petitioner's seeking a "name-clearing hearing", the Commissioner noted that Petitioner was not terminated and there is no evidence in the record that Respondents publicly made any defamatory or stigmatizing comments about Petitioner in connection with the matter.

Additionally, to the extent that Petitioner raised claims pursuant to the New York Freedom of Information Law and Open Meetings Law, the Commissioner explained that such allegations are outside the jurisdiction of the Commissioner in an Education Law §310 appeal. 

* Policy 4810  provides that “[i]n the classroom, matters of a controversial nature shall be handled as they arise in the normal course of instruction and not introduced for their own sake. Such issues shall be neither sought nor avoided.”  It further provides that “[w]hen presenting various positions on a controversial issue, the teacher shall take care to balance major views and to assure that as many sides of the issues as possible are presented in a fair manner, with no position being espoused by the teacher as the only one acceptable.”

** 52 NY2d 625.

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

 

Former Fire Chief pleads guilty to stealing and repays more than $18,000 of fire company's funds

New York State Comptroller Thomas P. DiNapoli, Ontario County District Attorney James Ritts, and the New York State Police announced the guilty plea of John Morabito, former chief of the Border City Hose Company, for theft of $18,772 from the company.

“Mr. Morabito’s theft of money meant to protect his community was a violation of the public’s trust and a betrayal of his office,” DiNapoli said. “I thank District Attorney Ritts and the New York State Police for partnering with my office to hold him accountable and make the company whole.”

Ontario County District Attorney James Ritts said, “At a time when funding for our Fire Departments and Hose Companies is so important, restoring the funding, assuring accountability, and protecting the companies was our driving concern. I am pleased we were able to address these concerns. The investigation by the New York State Police and the Comptroller’s Office made accomplishing these goals possible. The District Attorney’s office appreciates everyone’s efforts.”

New York State Police Superintendent Steven G. James said, “I commend the diligent work of our State Police members, along with our partners at the State Comptroller’s Office and Ontario County District Attorney’s Office, for their hard work in putting an end to this dishonest act. Mr. Morabito knowingly defrauded, and preyed on the public’s philanthropy, all to fill his pockets and satisfy greed. We will not tolerate the conduct of those who take advantage of their position to steal money meant to benefit the community.”

Morabito served as chief of the Hose Company, which is one of two fire companies in the Border City Fire District that serves residents in the City of Geneva and the Village of Waterloo. While he was chief, from 2015 to 2021, he stole $16,000 in donations, rental hall payments, and income received by the Hose Company.

Morabito made $16,000 in cash withdrawals and also used the Hose Company’s home improvement store credit card to make $2,200 in unauthorized purchases of construction supplies, tools, bathroom light fixtures, and a table saw for his personal residence.

Morabito pleaded guilty to misapplication of property  and was sentenced to a conditional discharge and paid back full restitution of $18,772. Additionally, Morabito is prohibited from having fiduciary responsibilities within the Hose Company, if permitted to rejoin the company.

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigiations@osc.ny.gov, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

Compelling the disclosure of records pursuant to New York State's Freedom of Information Law with respect to complaints and allegations made against police officers "that were not substantiated"

In the Matter of New York Civil Liberties Union v. Village of Freeport, 2024 NY Slip Op 03824, the Appellate Division held that upon repealing Civil Rights Law §90-a, the New York State Legislature amended the "Public Officers Law to specifically contemplate the disclosure of 'law enforcement disciplinary records,' which it defines to include 'complaints, allegations, and charges against an employee'".

Further, opined the court, if the State Legislature "had intended to exclude from disclosure complaints and allegations that were not substantiated, it would simply have stated as much", observing "[it] did not, and instead included 'complaints, allegations, and charges' in its definition of disciplinary records, along with 'the disposition of any disciplinary proceeding,' without qualification as to the outcome of the proceeding".

Click HERE to access the decision of the Appellate Division posted on the Internet.

A member of the New York City's Education Retirement System retired based on the System's erroneous representation she was eligible to do so must file a timely CPLR Article 78 seeking retirement benefits denied her

The New York City Board of Education Retirement System [Retirement System] initially placed the Plaintiff in its "Age 57 Early Retirement Program". Plaintiff retired on April 21, 2019, allegedly based upon representations by the Retirement System that she was eligible to retire and started receiving retirement benefits.

The Retirement System subsequently notified Plaintiff that it had determined that placing Plaintiff in the 57/5 program was an error, and that she should have been placed in the "25-Year Early Retirement Program". As Plaintiff was not yet eligible to retire, Retirement System gave the Plaintiff several options to address her premature retirement. Plaintiff elected to return to service for approximately 10 months until she was credited with 25 years of service and then file for retirement under the 55/25 program.

In October 2021, Plaintiff commenced an action seeking a judgment declaring that Retirement System was estopped from denying the Plaintiff's entitlement to retirement benefits "for the period from April 21, 2019, to the date that she returned to service or, in the alternative, to recover damages for breach of fiduciary duty, negligent misrepresentation, and negligence." Supreme Court granted Retirement Systems motion to dismiss Plaintiff's action as "time barred" and Plaintiff appealed Supreme Court's ruling.

Citing Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, the Appellate Division sustained the Supreme Court's decision, noting "where [the] proceeding could have been brought pursuant to CPLR Article 78, the four-month statute of limitations applicable to such proceedings applies". In the words of the Appellate Division, "although the complaint sought declaratory relief or monetary damages, the gravamen of the complaint concerned [Plaintiff's] challenge to the Retirement System's determination dated August 7, 2019, that her retirement as of April 21, 2019, was premature due to her erroneous placement in the 57/5 program...."

As the damages sought by Plaintiff concerning her unpaid retirement benefits for the period from her retirement on April 21, 2019, to the date that she returned to service arose from and were incidental to the Retirement System's determination dated August 7, 2019, Plaintiff could have commenced a CPLR Article 78 proceeding to challenge the Retirement System's determination dated August 7, 2019, and "the four-month statute of limitations applicable to such proceedings applies".

Click HERE to access the Appellate Division's decision posted on the Internet.

Second Circuit Court of Appeals holds New York State's Board of Law Examiners has Eleventh Amendment sovereign immunity

No. 22-1661

T.W., Plaintiff-Appellant,

v.

NEW YORK STATE BOARD OF LAW EXAMINERS, DIANE BOSSE, JOHN J. MCALARY, BRYAN WILLIAMS, ROBERT MCMILLEN, E. LEO MILONAS, MICHAEL COLODNER, Defendants-Appellees.

On Appeal from the United States District Court for the Eastern District of New York.

ARGUED: JUNE 5, 2023 DECIDED: JULY 19, 2024

Before: LIVINGSTON, Chief Judge, and NARDINI, Circuit Judge.*

Below is the summary of  the ruling preceding the court's decision.

"T.W. sued Defendant-Appellee the New York State Board of Law Examiners alleging, inter alia, that the Board violated Title II of the Americans with Disabilities Act (the “ADA”) and Section 504 of the Rehabilitation Act by denying her requests for certain accommodations on the New York State bar examination in 2013 and 2014. 

"The Board moved to dismiss T.W.’s complaint, asserting that the United States District Court for the Eastern District of New York (Raymond J. Dearie, District Judge) lacked subject matter jurisdiction because New York’s sovereign immunity barred T.W.’s ADA and Rehabilitation Act claims under the Eleventh Amendment. The district court denied the Board’s motion to dismiss, but this Court reversed, holding that the Board was immune from suit under Section 504 of the Rehabilitation Act** and remanding for consideration of the Board’s motion to dismiss as to T.W.’s Title II claim under the ADA. On remand, the district court granted the Board’s motion to dismiss, holding that the Board is entitled to immunity as an “arm of the state,” that Title II does not abrogate the Board’s sovereign immunity for money damages as applied to T.W.’s claim, and that T.W. could not maintain her requests for declaratory and injunctive relief under Ex parte Young. 

"On appeal, T.W. argues that the Board is not an arm of the state, and even if it were an arm of the state, Title II has abrogated Eleventh Amendment immunity in the context of T.W.’s claim. In addition, T.W. argues that even if the Board enjoys sovereign immunity, she may seek her requested declaratory and injunctive relief under Ex parte Young. We disagree and therefore AFFIRM the July 21, 2022, judgment of the district court."

* Judge Rosemary S. Pooler, originally a member of this Second Circuit panel, passed away on August 10, 2023. The two remaining members of the panel, who are in agreement, determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone, 140 F.3d 457, 458–59 (2d Cir. 1998). 

** The Circuit Court found that the Board was not a program or activity of a department or agency that receives federal funds and was therefore immune from suit pursuant to Section 504 of the Rehabilitation Act.

Click HERE to access the text of the Second Circuit decision posted on the Internet.