Students sue school district alleging school district administrators violated their civil rights

Students sue school district alleging school district administrators violated their civil rights

Graphic Arts Mut. Ins. Co. v Pine Bush Cent. Sch. Dist., 2018 NY Slip Op 01565, Appellate Division, Second Department

Commercial General Liability [CGL] issued School District and Educators Legal Liability policies well as CGL umbrella policies to the Pine Bush Central School District.

In lawsuit commenced in the United States District Court, Southern District of New York, captioned T.E. v Pine Bush Central School Dist., Docket #12-CV-2303), [the Federal Case] five students [T.E.] alleged that certain Pine Bush officers [the Defendants] and other school administrators violated their civil rights by being deliberately indifferent to anti-Semitic harassment and discrimination perpetrated by other students against them. The school district's superintendent, one of the named defendants, advised the Defendants that CGL had indicated that CGL would pay the costs of the defense in the action but reserved its right to disclaim coverage upon further investigation of the allegations.

CGL did pay the costs of defending the Defendants through the resolution of the Federal Case and during mediation, the parties to the Federal Case agreed to settle that action for a total of $3,000,000 in compensatory damages and $1,480,000 in attorneys' fees. A representative of CGL attended the mediation but did not contribute toward the settlement, disclaiming any duty to indemnify the Defendants with respect to the Federal Action.

CGL then commenced this action, Graphic Arts Mutual Insurance Co. v Pine Bush Central School District [State Case]. CGL, alleging five causes of action and sought a judgment declaring that CGL was not obligated to indemnify Defendants in the Federal Case under the various policies issued by it to the School District with respect to the allegations of "intentional discriminatory conduct related to disparate treatment."

CGL claimed that exclusions in the policies [1] "precluded coverage for claims seeking damages stemming from intentional discriminatory conduct," and [2] that those claims did not fall under the definition of either a covered "occurrence" or 'loss' as those terms were defined by the policies.*

The Defendants moved pursuant to CPLR §3211(a)(1) and (7) to dismiss CGL's  complaint. Supreme Court granted those branches of the Defendants' motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first, second, third, and fourth causes of action. The Appellate Division reversed the Supreme Courts order, on the law, with costs.

The Appellate Division noted that a motion to dismiss on the basis of CPLR §3211(a)(1) may be granted "only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law."

As to the motion to dismiss a claim pursuant to CPLR §3211(a)(7) for failure to state a cause of action, "the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory."

According to the language employed in the CGL coverage part of CGL's primary policies, coverage was provided for bodily injury caused by an "occurrence," which was defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." The SDELL coverage part of the policies "afforded coverage for a 'loss,' which excluded matters that may be deemed uninsurable under the law."

However, said the court, the question of whether a loss is the result of an accident must be determined from the point of view of the insured and where the loss is unexpected, unusual, or unforeseen from the point of view of the insured, the loss constitutes an accident.

Significantly, the Appellate Division explained that an act that is intentionally committed or performed may still be considered an accident within the meaning of an insurance policy, as long as the insured did not expect or intend the harm caused. Accordingly, whether an event or series of events qualifies as an accident is a question of fact.

In the words of the Appellate Division, "[R]egardless of the initial intent or lack thereof as it relates to causation, or the period of time involved, if the resulting damage could be viewed as unintended by the fact finder the total situation could be found to constitute an accident" and "The duty to defend is measured against the allegations of pleadings but the duty to pay is determined by the actual basis for the insured's liability to a third person."

The relevant allegations set forth in the Federal Action "averred that the Defendants deliberately ignored complaints and their own observations of student-on-student anti-Semitic harassment and discrimination or responded in an unreasonable or inadequate manner to such complaints and observations."

T.E., in the Federal Action, further alleged that repeated and frequent incidents of anti-Semitic harassment and discrimination against them by other students, which were reported to school officials on numerous occasions and directly observed on other occasions by school personnel, gave rise to an inference that the Defendants "intended for the harassment to occur" based upon the Defendants' practices, policies, and customs in dealing with reports and observations of anti-Semitic harassment and discrimination; that the Defendants "intentionally discriminated" against the plaintiffs, that the defendants' conduct "aided and incited" unlawful discrimination; and that the Defendants' acts and omissions were "undertaken recklessly and with the intent to engage in wrongful conduct."

The Appellate Division explained that "it is not legally impossible to find accidental results flowing from intentional causes, i.e., that the resulting damage was unintended although the original act or acts leading to the damage were intentional," the insurance policies do not conclusively establish that CGL is obligated to indemnify the Defendants in the Federal Action, and "the other evidence submitted by the Defendants did not utterly refute the factual allegations set forth in T.E.'s complaint."

Accordingly, whether the incidents set forth in the Federal Action concerning "intentional causes" were accidents present questions of fact which cannot be determined on a motion to dismiss pursuant to CPLR 3211(a)(1) and (7) and  Supreme Court should have denied those branches of the Defendants' motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first, second, third, and fourth causes of action.

* CGL, in a fifth cause of action, sought a declaration that, in the event it was found the CGL had a duty to indemnify Defendants in the Federal Action, the duty to indemnify would be limited to that part of the settlement that was found to be reasonable, as CGL alleged that the settlement amount in the Federal Action was excessive. 

N.B. In the companion appeal to this action, Graphic Arts Mutual Insurance Company v Pine Bush Central School District, 2018 NY Slip Op 01566, the Appellate Division ruled that "it is premature to render a determination on the reasonableness of the settlement amount tendered by the defendants in the underlying action entitled T.E. v Pine Bush Central School Dist., commenced in the United States District Court for the Southern District of New York under case number 12-CV-2203, until the issue of indemnification has been decided."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01565.htm

It is legally possible to find "accidental results" flowing from "intentional causes" for the purposes of indemnification pursuant to the terms of an insurance policy

It is legally possible to find "accidental results" flowing from "intentional causes"  for the purposes of indemnification pursuant to the terms of an insurance policy

Graphic Arts Mut. Ins. Co. v Pine Bush Cent. Sch. Dist., 2018 NY Slip Op 01565, Appellate Division, Second Department

Commercial General Liability [CGL] issued School District and Educators Legal Liability policies well as CGL umbrella policies to the Pine Bush Central School District.

In lawsuit commenced in the United States District Court, Southern District of New York, captioned T.E. v Pine Bush Central School Dist., Docket #12-CV-2303), [the Federal Case] five students [T.E.] alleged that certain Pine Bush officers [the Defendants] and other school administrators violated their civil rights by being deliberately indifferent to anti-Semitic harassment and discrimination perpetrated by other students against them. The school district's superintendent, one of the named defendants, advised the Defendants that CGL had indicated that CGL would pay the costs of the defense in the action but reserved its right to disclaim coverage upon further investigation of the allegations.

CGL did pay the costs of defending the Defendants through the resolution of the Federal Case and during mediation, the parties to the Federal Case agreed to settle that action for a total of $3,000,000 in compensatory damages and $1,480,000 in attorneys' fees. A representative of CGL attended the mediation but did not contribute toward the settlement, disclaiming any duty to indemnify the Defendants with respect to the Federal Action.

CGL then commenced this action, Graphic Arts Mutual Insurance Co. v Pine Bush Central School District [State Case]. CGL, alleging five causes of action and sought a judgment declaring that CGL was not obligated to indemnify Defendants in the Federal Case under the various policies issued by it to the School District with respect to the allegations of "intentional discriminatory conduct related to disparate treatment."

CGL claimed that exclusions in the policies [1] "precluded coverage for claims seeking damages stemming from intentional discriminatory conduct," and [2] that those claims did not fall under the definition of either a covered "occurrence" or 'loss' as those terms were defined by the policies.*

The Defendants moved pursuant to CPLR §3211(a)(1) and (7) to dismiss CGL's  complaint. Supreme Court granted those branches of the Defendants' motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first, second, third, and fourth causes of action. The Appellate Division reversed the Supreme Courts order, on the law, with costs.

The Appellate Division noted that a motion to dismiss on the basis of CPLR §3211(a)(1) may be granted "only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law."

As to the motion to dismiss a claim pursuant to CPLR §3211(a)(7) for failure to state a cause of action, "the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory."

According to the language employed in the CGL coverage part of CGL's primary policies, coverage was provided for bodily injury caused by an "occurrence," which was defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." The SDELL coverage part of the policies "afforded coverage for a 'loss,' which excluded matters that may be deemed uninsurable under the law."

However, said the court, the question of whether a loss is the result of an accident must be determined from the point of view of the insured and where the loss is unexpected, unusual, or unforeseen from the point of view of the insured, the loss constitutes an accident.

Significantly, the Appellate Division explained that an act that is intentionally committed or performed may still be considered an accident within the meaning of an insurance policy, as long as the insured did not expect or intend the harm caused. Accordingly, whether an event or series of events qualifies as an accident is a question of fact.

In the words of the Appellate Division, "[R]egardless of the initial intent or lack thereof as it relates to causation, or the period of time involved, if the resulting damage could be viewed as unintended by the fact finder the total situation could be found to constitute an accident" and "The duty to defend is measured against the allegations of pleadings but the duty to pay is determined by the actual basis for the insured's liability to a third person."

The relevant allegations set forth in the Federal Action "averred that the Defendants deliberately ignored complaints and their own observations of student-on-student anti-Semitic harassment and discrimination or responded in an unreasonable or inadequate manner to such complaints and observations."

T.E., in the Federal Action, further alleged that repeated and frequent incidents of anti-Semitic harassment and discrimination against them by other students, which were reported to school officials on numerous occasions and directly observed on other occasions by school personnel, gave rise to an inference that the Defendants "intended for the harassment to occur" based upon the Defendants' practices, policies, and customs in dealing with reports and observations of anti-Semitic harassment and discrimination; that the Defendants "intentionally discriminated" against the plaintiffs, that the defendants' conduct "aided and incited" unlawful discrimination; and that the Defendants' acts and omissions were "undertaken recklessly and with the intent to engage in wrongful conduct."

The Appellate Division explained that "it is not legally impossible to find accidental results flowing from intentional causes, i.e., that the resulting damage was unintended although the original act or acts leading to the damage were intentional," the insurance policies do not conclusively establish that CGL is obligated to indemnify the Defendants in the Federal Action, and "the other evidence submitted by the Defendants did not utterly refute the factual allegations set forth in T.E.'s complaint."

Accordingly, whether the incidents set forth in the Federal Action concerning "intentional causes" were accidents present questions of fact which cannot be determined on a motion to dismiss pursuant to CPLR 3211(a)(1) and (7) and  Supreme Court should have denied those branches of the Defendants' motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first, second, third, and fourth causes of action.

* CGL, in a fifth cause of action, sought a declaration that, in the event it was found the CGL had a duty to indemnify Defendants in the Federal Action, the duty to indemnify would be limited to that part of the settlement that was found to be reasonable, as CGL alleged that the settlement amount in the Federal Action was excessive. 

N.B. In the companion appeal to this action, Graphic Arts Mutual Insurance Company v Pine Bush Central School District, 2018 NY Slip Op 01566, the Appellate Division ruled that "it is premature to render a determination on the reasonableness of the settlement amount tendered by the defendants in the underlying action entitled T.E. v Pine Bush Central School Dist., commenced in the United States District Court for the Southern District of New York under case number 12-CV-2203, until the issue of indemnification has been decided."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01565.htm

Audits and examination reports issued during the week ending March 17, 2018 by NYS Comptroller Thomas P. DiNapoli

Audits and examination reports issued during the week ending March 17, 2018 by NYS Comptroller Thomas P. DiNapoli 

Click on text highlighted in color to access the full report.

Office of Children and Family Services (OCFS): Financial Oversight of the Advantage After School Program (2016-S-39)
OCFS has some appropriate controls to limit program contract spending, including a maximum cost per child of $1,375 and a maximum allowable contract budget, which is calculated by multiplying providers’ maximum average daily attendance (MADA) by the $1,375 maximum per child. OCFS reimbursements to program providers did not exceed the maximum contract budget. However, there is a risk that providers can exceed the maximum cost per child if they serve significantly fewer children than their MADA but do not reduce their expenditures proportionally.

City University of New York (CUNY): Borough of Manhattan Community College (BMCC): Controls Over Bank Accounts (Follow-Up) (2015-S-93)
CUNY Central officials provided auditors a list of 23 bank accounts that they were aware of at BMCC. Seven of BMCC’s accounts were opened after CUNY’s bank authorization policy was established in 2008. However, CUNY did not have the required notification forms for one of these accounts. Auditors also identified two accounts that were not on CUNY’s list. These findings point to weaknesses in the monitoring of bank accounts, which increase the risk that BMCC personnel could conduct transactions using unauthorized accounts.

Department of Environmental Conservation (DEC): Generic PINs (2017-BSE7-01)
Auditors found DEC’s use of fuel cards does not comply with the Office of General Services’ Fuel Card Services Contract Guidelines, the State Vehicle Use Policy and DEC’s Policies and Procedures. DEC does not have sufficient controls in place to ensure all fuel purchases are appropriate.  DEC officials have not implemented a previous comptroller’s recommendation to assign unique PINs to individual employees, consistent with the guidelines.

Department of Health (DOH): Nursing Home Surveillance (Follow-Up) (2017-F-12)
An initial audit issued in February 2016, found DOH generally met its obligations to conduct Standard Health and Complaint surveys of nursing homes in accordance with federal and state requirements, but its enforcement policies and procedures needed to be strengthened to better protect the health and well-being of nursing home residents. In a follow-up report, auditors found DOH officials addressed the problems identified in the initial audit, having implemented all four of the prior audit’s recommendations.

Department of Health: Medicaid Program: Managed Care Organizations (MCOs): Payments to Ineligible Providers (2016-S-59)
During the audit period, the DOH launched efforts to improve its ability to detect and prevent payments by MCOs to ineligible providers. Notwithstanding those efforts, however, auditors identified certain weaknesses that, if properly addressed, could help better detect and prevent improper payments to ineligible providers. Auditors determined MCOs improperly paid $50.3 million during the audit period.

State Education Department (SED): Universal Pre-Kindergarten Program (UPK): Monitoring of Health and Safety Requirements (Follow-Up) (2017-F-30)
An initial audit report issued in December 2016 found SED did not directly monitor UPK providers for health and safety. Instead, SED relied on the school district operating the UPK program, or the Office of Children and Family Services, to ensure that UPK providers were complying with health and safety requirements. In addition, auditors found a wide disparity in the way UPK providers were being monitored for health and safety. In a follow-up, auditors found SED officials have made some progress in addressing the issues identified in the initial audit.

Metropolitan Transportation Authority (MTA): New York City Transit: Operational Training and Medical Assessments of Train Crews (2016-S-26)
Auditors found MTA’s New York City Transit unit is not in compliance with the requirements of the Induction Training curriculum established for its train crews. This lack of compliance may be tied to poor outcomes. For instance, all four train operators in the audit sample who had five or more operating incidents during the audit period had a history of failing grades and/or tests and quizzes missing from their training files. Auditors also found: train operators and conductors are not always meeting or completing refresher training requirements; many of their required annual hearing tests were either done late or not at all; train crews not in compliance with medical assessment requirements; and there were  inconsistencies with test scoring and file maintenance, including missing test files, ungraded tests, and missing attendance records.

Metropolitan Transportation Authority: Staten Island Railway (SIR): Operational Training and Medical Assessments of Train Crews (2017-S-71)
Auditors found SIR’s records were insufficient to document that training was satisfactorily completed. For a randomly selected sample of conductors who underwent Induction Training during the audit period, 61 percent of test papers were either not graded or missing. In addition, for the randomly selected sample of engineers, 81.7 percent of test papers for those newly hired and 41.7 percent of test papers for those promoted were either not graded or missing. Five of the ten conductors randomly sampled were required to take Book of Rules Refresher Training during the audit period. However, only two of the five had records that supported satisfactory completion of all exams. Auditors found similar results for the Signals Refresher Training, with only two of eight conductors having records to support satisfactory completion. Train crews were also not in compliance with medical assessment requirements. 

Selected reports posted in Employment Law News by WK Workday

Selected reports posted in Employment Law News by WK Workday

Source: WK Workday - Week of March 16, 2018

Click on text highlighted in color to access the full report.

Top labor and employment developments in February 2018

In huge EEOC win, appeals court finds discrimination on basis of transgender/transitioning status violates Title VII

Hospital once linked to church and still giving pastoral care may invoke ministerial exception

Not currently diagnosed with sleep apnea, fired dispatcher can’t show FMLA or disability bias

Fear obesity could lead to other conditions supports rejected applicant’s regarded-as disabled claim

Using election observer who was just fired for brandishing life-like toy gun didn’t taint union election

Mayor who fired long-term employee for ‘unacceptable’ email should have been granted qualified immunity

Disabled receptionist sexually assaulted by coworker awarded over $95K against unsympathetic hotel employer

Administrative Law Judge finds correction officer exercised reasonable and prudent judgment under the circumstances

Administrative Law Judge finds correction officer exercised reasonable and prudent judgment under the circumstances

Office of Administrative Trials and Hearings, Index No. 0005/18

A New York City Correction Officer was served with disciplinary charges alleging that the officer [1] had abandoned his station to confront an inmate; [2] failed to anticipate a use of force; [3] used excessive force against an inmate and [4] filed a false report.

The officer testified that he had left his post because he was unable to communicate with the inmate through "the window slot;" he did not contact a supervisor because believed he could use interpersonal skills to obtain the information; and it was not until the inmate struck the officer did the situation quickly escalate.

OATH Administrative Law Judge Alessandra F. Zorgniotti held that the officer’s testimony, which was corroborated by the video tape of the event, was credible. 

Finding that the officer exercised reasonable and prudent judgment under the circumstances, Judge Zorgniotti recommended that the appointing authority dismiss the disciplinary charges filed against the correction officer.  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-005.pdf

Terminating a "long-time" provisional employee

Terminating a "long-time" provisional employee

Pena-Barrero v. City of New York, USCA Second Circuit, Docket #17-1286

Luis Pena-Barrero was employed in a variety of positions by the City of New York between 1994 and 2012. Although Pena-Barrero was eligible to take the appropriate required civil service exam on multiple occasions during his time as an employee of the City, he never did so and therefore remained a “pure provisional” employee.

§65(1) of the New York State Civil Service Law provides that "[n]o provisional appointment shall continue for a period in excess of nine months," and "in no case shall the employment of any such provisional appointee be continued longer than four months following the establishment of [an] eligible list" of candidates for the position."*

In 2008 Pena-Barrero's then employer, Department of Citywide Administrative Services [DCAS], implemented a plan to come into substantial compliance with §65 and issued a Notice of Examination in 2009 for the position provisionally held by Pena-Barrero, with the examination to take place in February 2010. Pena-Barrero did not apply to take the February 2010 examination. Subsequently an eligible list for the position in which Pena-Barrero was then serving was promulgated but, nevertheless, he remained provisionally employed by DCAS "long after the civil service list for his position was established"

On or about October 5, 2012 Pena-Barrero was informed that he would be terminated from his position, whereupon he initiated the CPLR Article 78 action contending that he was "impermissibly discriminated against, retaliated against, and subject to a hostile work environment, in violation of the federal Civil Rights Act and Family and Medical Leave Act [FMLA], the New York State Human Rights Law [NYSHRL], and the New York City Human Rights Law [NYCHRL]"

The Circuit Court of Appeals held that Pena-Barrero’s claims for race, national origin, and disability discrimination suffer from fundamental flaws in light of his failure to pass the civil service examination for his position. Accordingly, he could not demonstrate a prima facie case of discrimination because he was unable to show that he was qualified for appointment to the position. Further, opined the court, "Even assuming arguendo that Pena-Barrero could establish prima facie discrimination," his discrimination claims would nevertheless fail because he cannot establish that DCAS's proffered reason for his termination “is in fact pretext for unlawful discrimination.”

The court held that the record is clear that Pena-Barrero was terminated by action taken by DCAS’s Provisional Reduction Analysis Team and "there is simply no evidence" that his race, national origin, or disability played any role in his termination. In the words of the Circuit Court of Appeals, "As we have repeatedly explained ... there is no evidence that Pena-Barrero was terminated for any reason other than the fact that he was not qualified to remain employed by DCAS under the New York Civil Service Law.

* It is well settled that a provisional or temporary appointment cannot mature into a permanent one unless the incumbent satisfies the requirements set out in the Civil Service Law for permanent appointment to the position. See, for example, Matter of Gaiser, 15 AD2d 793; Russell v Hodges, CA2, 470 F2d 212. In contrast, decisions addressing the continuation in service of a provisional employee who becomes eligible for permanent appointment to the position include Matter of Roulette, 40 AD2d 611, Haynes v Chautauqua County, 55 NY2d 814, Becker v New York State Civil Service Commission, 61 NY2d 252 and La Sota v Green, 53 NY2d 491.

The decision is posted on the Internet at: 
http://www.ca2.uscourts.gov/decisions/isysquery/59b49e76-a052-42f7-b1b0-d7bac9c1165e/3/doc/17-1286_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/59b49e76-a052-42f7-b1b0-d7bac9c1165e/3/hilite/

In cases involving alleged abuse of a minor child courts owe “unusual deference” to a school official’s decision to report reasonably suspected abuse and neglect

In cases involving alleged abuse of a minor child courts owe “unusual deference” to a school official’s decision to report reasonably suspected abuse and neglect

Maco v. Baldwin Union Free School District et. al, USCA Second Circuit, Docket No.17-1539

Rhonda L. Maco, alleging that two Baldwin Union Free School District employees, Lori A. Presti, and Carrie Billitzki reported "potential child abuse to a state agency in retaliation for a complaint Maco made about Billitzki’s treatment of Maco’s minor child [Minor Child]," sued the Baldwin School District, Presti and Billitzki, [Defendants] in federal district court.

The district court dismissed Maco's complaint, holding that "no reasonable jury could find that the Defendants had a retaliatory motive or that Maco sustained an injury. Maco appealed the district court summary dismissal of her petition contending that "Defendants failed to show entitlement to judgment because a reasonable juror could find that Presti’s report of suspected child abuse was 'motivated or substantially caused' by Maco’s complaint about M.C.'s treatment" by Presti.

The Circuit Court sustained the district court's ruling. Rejecting Maco's arguments, the court explained  that it "owes 'unusual deference' to school administrators (or 'mandated reporters') who are required by law to report suspected child abuse, absent a 'clear showing of retaliatory or punitive intent,' where the administrator has 'a sufficient basis to suspect potential abuse,' the report is, as a matter of law, not retaliatory."

The decision states the Minor Child told Presti that Maco had checked Minor Child out of school and taken her home, where Maco had slapped her face multiple times and struck her three times with a belt. School records showed that Maco had signed Minor Child out of school for an appointment earlier that day. This, said the court, was a “sufficient basis to suspect potential abuse,” even though Presti’s pre-report investigation was relatively brief and did not include speaking to Minor Child’s teacher.

Although Maco, relying on decisions interpreting Title VII of the Civil Rights Act of 1964, argued that a retaliation claim can lie even where there are “objectively valid grounds” for the retaliatory action, the Circuit Court noted that in the specialized context of a school administrator’s decision to report suspected child abuse, a more demanding standard applies.

The court also rejected Maco’s assertion of protected speech involving a complaint she made concerning Billitzki in June 2013, ten months prior to Presti’s April 2014 report of suspected child abuse. Although Billitzki was admittedly upset with Maco’s complaint at the time, there was no evidence in the record that Maco’s complaint was a consideration when Presti reported the abuse.

Noting that it is true that there is no “bright line . . . beyond which a temporal relationship is too attenuated to establish a causal relationship” in retaliation cases, in this case the court observed that "the lapse of time between speech and adverse action (and the lack of evidence connecting them) negates any inference of causation," even if, as Maco suggests, Minor Child’s report of corporal punishment provided Defendants with their “first actual opportunity to retaliate.”

The Circuit Court also noted that Maco’s remaining evidence was "even less probative of retaliatory motive" with respect to the fact that Presti reported the suspected abuse without first discussing Minor Child’s behavior with the child's teacher, even though Presti allegedly should have known that Minor Child was a habitual liar.

Presti, said the court, correctly evaluated Minor Child’s credibility on the day in question as "Maco had, in fact, taken [Minor Child] out of school and struck her multiple times—this evidence is scarcely probative of motive." Although this and other factors set out in the decision, may, in some circumstances, "support an inference of retaliatory motive," in this instance the court said it concluded that Maco’s evidence falls short of the requisite “clear showing of retaliatory or punitive intent.”

The court, in consideration of the “unusual deference” it owes to school administrators’ “decisions to report reasonably suspected abuse and neglect,” concluded that Presti’s report was non-retaliatory as a matter of law."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/e908bc3a-9153-4d7b-bc24-582a4862afd6/5/doc/17-1539_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e908bc3a-9153-4d7b-bc24-582a4862afd6/5/hilite/

Acquiring tenure in the position by tenure by "operation of law," sometimes referred to as tenure by estoppel or tenure by acquiesce

Acquiring tenure in a position by "operation of law," sometimes referred to as  tenure by estoppel or tenure by acquiesce
Matter of Mogilski v Westbury Union Free Sch. Dist., 2018 NY Slip Op 01063, Appellate Division, Second Department

Should the appointing authority fail, or neglect, to timely notify a probationer that he or she is to be terminated for failure to satisfactorily complete his or her probationary period  on or before the end of the individual's probationary period, the employee is deemed to have obtained tenure by "operation of law," sometimes referred to as  tenure by estoppel or tenure by acquiesce.

In Mogilski v Westbury Union Free School District the Appellate Division determined that Mogilski had obtained tenure in his position by "operation of law."

Westbury Union Free School District [District] appointed Anthony Mogilski as a Supervisor of School Facilities and Operations on September 21, 2015 subject to Mogilski's satisfactory completion of a 26-week probationary period scheduled to end March 21 next following.  On February 2, 2016, the District informed Mogilski that his probationary period was being extended for 12 days due to school closings for holidays, which, said the District, extended his probationary period through April 6, 2016.

The District's request for the extension was approved by the Nassau County Civil Service Commission [Commission] and on March 28 the School Board of Education adopted a resolution terminating Mogilski's employment "effective the last day of his probationary period, which is March 29, 2016 ...." A termination of employment letter was delivered to Mogilski on March 29.

On March 29, however, the District was informed by the Commission that it had incorrectly "authorized the extension" of Mogilski's probationary period for 12 days when the extension should have been 6 days, thereby resulting Mogilski'sprobationary period "officially" ending on March 29 rather than April 6.

Mogilskifiled an Article 78 petition seeking a court order reinstating him to his former position in which he alleged that the District exceeded its jurisdiction, and acted arbitrarily,  capriciously, and irrationally in extending his probationary period. He contended that the Commission's rules with respect to a probationer's term being extended for authorized or unauthorized absences on "workdays" does not authorize such an extension for school closings on holidays.*

Although Supreme Court denied Mogilski's petition, holding it was not an abuse of discretion for the District to treat absences resulting from "holiday" school closings the same as absences for sick leave, vacation, jury duty, and other authorized or  unauthorized absences for purposes of extending a probationer's term, the Appellate Division disagreed and reversed Supreme Court's ruling.

The Appellate Division explained that the relevant Commission rule indicated that "it is proper to extend a probationary term by the number of 'workdays' an employee is 'absent' or 'workdays' an employee missed due to sick leave, vacation, or jury duty" and that this court had previously ruled "it is rational to interpret 'workdays' to include 'all of those days when [Mogilski's] presence would normally have been required.'" However, said the court, a school closing due to a holiday "is not a day when [Mogilski's]would have required" to work and the extension of his probationary period in consideration of the school being closed due to a holiday was improper.

The court directed the District to reinstate Mogilski to his position of Supervisor of School Facilities and Operations with back pay and all benefits of his employment.

* 4 NYCRR 4.5(g), addressing absence during probationary term with respect to employees of the State as the employer, in pertinent part, provides that "Any periods of authorized or unauthorized absence aggregating up to 10 workdays during the probationary term, or aggregating up to 20 workdays if the probationary term or maximum term exceeds 26 weeks, may, in the discretion of the appointing authority, be considered as time served in the probationary term ... Any such periods of absence not so considered by the appointing authority as time served in the probationary term, and any periods of absence in excess of periods considered by the appointing authority as time served in the probationary term pursuant to this subdivision, shall not be counted as time served in the probationary term. The minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his absence which, pursuant to this subdivision, are not counted as time served in the probationary term."

Many local civil service commissions and personnel officers have adopted a similar rule.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01063.htm

A resolution increasing a NYSHIP participating employer's contribution for health insurance premiums is temporary absent a manifest intent to create a permanent right

A resolution increasing a NYSHIP participating employer's contribution for health insurance premiums is temporary absent a manifest intent to create a permanent right

Bruckman v New York State Thruway Auth., 2018 NY Slip Op 01526, Appellate Division, Third Department

The complainants [Petitioners] in this CPLR Article 78 action are retired employees of New York State Thruway Authority [NYSTA]. NYSTA, a participating employer in the New York State Health Insurance Program [NYSHIP] as set out in Article 11 of the Civil Service Law, provides health insurance benefits to its employees and retirees.

A participating NYSHIP employer must pay at least 50% of the cost of the premium for individual coverage and not less than thirty-five% of the cost of premium or subscription charges for the coverage of dependents of such employees and retired employees. A participating NYSHIP employer, however, may elect to pay higher rates of contribution towards the employees' health insurance premiums for employees, retired employees, and the dependents of employees and retired employees. Further, a participating employer may elect to pay a higher or lower rate of contribution for its retired employees or their dependents, or both, than that paid by the State for its retired employees or their dependents, or both.

NYSTA's policy governing payment of health insurance premiums for retirees, last amended in 1976, provided that retirees would not be required to make any contribution toward the cost of individual coverage and each Petitioner received individual health coverage at no cost pursuant to the policy as it then existed upon his or her retirement.

In November 2015, NYSTA amended this the policy to require that retirees who had been retired for less than 25 years, and whose health insurance premium contribution rates were not subject to the provisions of a collective bargaining agreement negotiated pursuant to Article 14 of the Civil Service Law, commonly referred to as the Taylor Law, were to contribute six percent of the cost of the premiums for their individual coverage effective April 1, 2016.* As Petitioners served in positions designated "managerial or confidential" within the meaning of the Taylor Law, neither their employment nor their retirement was subject to the provisions of a collective bargaining agreement.

In March 2016, Petitioners commenced this Article 78 action seeking to, among other things, have the court annul NYSTA's decision to modify the contribution amount Petitioners had to pay for health insurance, contending that the revised policy breached "their vested right to receive individual health insurance coverage in retirement at no cost" and that the NYSTA's adoption of the revised policy was arbitrary and capricious.

Supreme Court dismissed the petition and Petitioners appealed.

Essentially Petitioners argued that the NYSTA policy that was in effect when each of them retired constituted "a unilateral offer by NYSTA to provide them with lifetime individual health insurance coverage in retirement at no cost," and that their right to such coverage vested and became an enforceable contract upon retirement.

Citing Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326, the Appellate Division disagreed with Petitioners, holding that "A municipal resolution is, in general, a unilateral action that is temporary in nature and, thus, it does not create any vested contractual rights."  The court explained that it is presumed that such resolutions do not "create private contractual or vested rights but merely declare a policy to be pursued until the legislative body shall ordain otherwise" and "[p]rivate contractual rights are created by municipal resolution only where the language of the resolution and the attendant circumstances clearly manifest the intent to create such rights."

Noting that there was nothing in the language of NYSTA's 1976 policy that would create private contractual rights, the decision pointed out that the rules and regulations governing NYSHIP specifically provide that a participating employer "that increases its rate of contribution toward the cost of health insurance benefits may thereafter decrease its rate of contribution to the statutory minimum."

* In Lippman v Board of Educ. of Sewanhaka Cent. High School Dist., 66 NY2d 313,  the Court of Appeals held that health insurance upon retirement is not a retirement benefit subject to the provisions of Article V, §7 of the State Constitution [Membership in retirement systems; benefits not to be diminished nor impaired].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01526.htm

A school board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty

A school board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty

Application for the removal of certain school officials, Decisions of the Commissioner of Education, Decision No. 17,307

Monique McCray, Doris Dodson and Kelly Valentin [Petitioners] submitted an appeal to the Commissioner of Education seeking for the removal of certain  members of the Board of Education of the Central Islip Union Free School District, the removal of Dr. Craig Carr as Superintendent [collectively Respondents] involving was school constructions project substantially completed by May 2004.

At the result of Central Islip's failure to timely file final cost reports concerning the construction projects to the State Education Department [SED], SED, except for one project, discontinued the apportioned payments and sought to recoup the state aid apportionments in the amount $13,619,929 in "overpayments" over the course of three years by annual deductions from Central Islip's general State aid payments.

Central Islip then initiated an Article 78 in Supreme Court, contending that it was "entitled" to the overpayment claimed by SED. Supreme Court granted Central Islip's request for a temporary restraining order, which resulted in a payment from SED to Central Islip in the amount of approximately $7.5 million during the 2011-2012 school year. Governor Andrew Cuomo, however, had then signed Chapter 57 of the Laws of 2012 excusing "the actions and omissions of any school district which failed to file timely final cost reports for otherwise eligible school construction projects so long as the reports were filed by December 31, 2012.” If the school district filed by this deadline, Chapter 57 required SED to pay apportioned aid to the district in full except for a late filing penalty.[1][1] 

In March 2014, the Office of the New York State Comptroller [Comptroller] issued a report of examination entitled “Central Islip Union Free School District Financial Management” which covered the period from July 1, 2012 to June 30, 2013. The Comptroller concluded that district officials had “underestimated revenues and overestimated expenditures in the School Board-adopted budgets for fiscal years 2008-09 through 2012-13 ....”  The Comptroller also noted that, after Central Islip learned of the potential $13.6 million liability to SED in February 2010, “the entire amount needed was accumulated in unexpended surplus funds by the end of the 2010-11 fiscal year, due to the operating surplus incurred that year.”  Although district officials had “hoped that funds for this contingent liability could be placed in a reserve and excluded when calculating the statutory limit,” the Comptroller opined that “there is no statutory authority to establish a reserve for this liability.”

Petitioners in this appeal to the Commissioner contended that the Respondents willfully violated the Real Property Tax Law [RPTL] §1318 by retaining funds greater than four percent of the next fiscal year’s budget for the 2010-2011, 2011-2012 and 2012-2013 fiscal years and that during this period although the community was experiencing economic decline and high home foreclosure rates, district officials increased the tax levy, generating operating surpluses in excess of $25 million from 2008-2009 through 2012-2013.

The Petitioners also argued that Respondents had "a responsibility ... to bring information to the community about matters that affect their legal obligation to pay taxes” and “were obligated to be truthful and ethical and not jeopardize the community’s trust.” 

McCray and Dodson were alleged to have “raised questions about the [d]istrict’s practices of deliberately creating excess funds by under estimating revenue and over estimating expenditures” at an April 8, 2013 board meeting, and Respondents “acknowledge[d]” that there were “no internal controls to measure whether budget expenditures are efficient and increases are warranted.”  Petitioners request that Respondents be removed from their respective offices.

The Commissioner first address what she characterized as a "preliminary matter," Respondents claim that she would be "unable to issue an impartial decision in this matter because ... the application concerns an ongoing dispute between SED and respondent board."

The Commissioner, noting that Education Law §306 provides for an application to the Commissioner of Education when a petitioner seeks the removal of a board member or school officer, said that although "recusal may be necessary in an adjudicatory proceeding before the Commissioner under certain circumstances," she found that no such circumstances existed in this case.  In particular, the Commissioner said that she did not find that the lawsuit, which has concluded, "compromises [her] impartiality or otherwise requires [her] recusal in this case.

After addressing a number of procedural issues, the Commissioner addressed the Petitioners' appeal and found that [a]lthough the application must be denied as untimely, it would also be denied on the merits."

The Commissioner explained that RPTL §1318(1) provides that at the conclusion of each fiscal year, a board of education must apply any unexpended surplus funds to reduce its tax levy for the upcoming school year.  Surplus funds are defined as “any operating funds in excess of four percent of the current school year budget, and shall not include funds properly retained under other sections of law.” The Commissioner then observed that it has been "repeatedly held that, at the end of each school year, all unexpended operating funds in excess of the statutorily permitted four percent of the amount of the budget for the upcoming school year must be applied to reduce the tax levy."

As to Petitioners' seeking the removal of a member of the board of education or a school officer, Education Law §306 so permits "when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education." Further, said the Commissioner, to be considered willful, "the board member or officer’s actions must have been intentional and with a wrongful purpose."

Observing that in an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief, the Commissioner decided that while Petitioners in this appeal have alleged and proved violations of the RPTL, which Respondents have in fact admitted, "the actions of which [P]etitioners complain do not rise to the level of a willful violation or neglect of duty under the Education Law."

In the words of the Commissioner, "[P]etitioners have produced no evidence that any [R]espondent acted with a wrongful purpose" nor have Petitioners contested Respondents' contention that "that they took the actions which resulted in the accumulation of unexpended surplus funds during the disputed timeframe after receiving the advice of counsel."

Citing a number of Decisions of the Commissioner of Education, including Application of Goldin, 39 Ed Dept Rep 14, Decision No. 14,158, the Commissioner opined that "It is well-settled that a board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty that would justify removal under Education Law §306" and denied the Petitioners' application.

Addressing one final administrative matter, the Commissioner granted the Respondents'  have request for Certificates of Good Faith pursuant to Education Law §3811(1) thereby authorizing the School Board to indemnify them for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his or her powers or performance of duties as a board member or other title listed in §3811(1).  

As it is appropriate to issue such certification unless it is established on the record that the requesting respondent acted in bad faith, the Commissioner concluded that as there has been no finding that any respondent acted in bad faith, she so certified "solely for the purpose of Education Law §3811(1) that ... Philips, Devine, Softy and Carbajal are entitled to receive the requested certificate [and] to the extent such a certificate is necessary, that [R]respondent Carr, who was the superintendent at the time of the events giving rise to this application, is also entitled to receive the requested certificate."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17307

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[1][1] Following passage of this legislation, Supreme Court dismissed the board’s lawsuit as moot on January 30, 2013, which was affirmed by the Appellate Division on October 30, 2014 (see Bd. of Educ. of Cent. Islip Union Free Sch. Dist. v. Steiner, 121 AD3d 1473).