Members of the State's Security Guard Advisory Council are State officers or employees for the purposes of Public Officers Law §17

Members of the State's Security Guard Advisory Council are State officers or employees for the purposes of Public Officers Law §17

Opinions of the Attorney General, Formal Opinion 2012- F2

Public Officers Law §17 provides for the defense and indemnification of State officers and employees sued in a civil action or proceeding in any state or federal court for acts or omissions involving the performance of their official duties.

The Attorney General has advised Gina L. Bianchi, Esq., Deputy Commissioner and Counsel, New York State’s Division of Criminal Justice Services, that members of the Security Guard Advisory Council are State officers or employees for the purposes of Public Officers Law §17.

Presumably the same would be true with respect to the provisions of Public Officers Law §19's applicability  to such Council members. 

Public Officers Law §19 provides, in pertinent part, that it is “the duty of the state to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of an employee in his or her defense of a criminal proceeding in a state or federal court arising out of any act which occurred while such employee was acting within the scope of his* public employment or duties upon his acquittal or upon the dismissal of the criminal charges against him.”

With respect to political subdivisions of the State, Public Officers Law §18 authorizes such entities, “by the adoption of local law, by-law, resolution, rule or regulation,” to provide for the defense and indemnification of its officers and employees in the event any such persons are sued in federal or state courts in a civil matter related to the performance of their official duties.

* §22 of the General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.”

The Attorney General's Opinion 2012-F2 is posted on the Internet as a PDF file at:

http://www.ag.ny.gov/sites/default/files/opinion/2012-f2pw.pdf

Reassignment of school principals challenged by students, resident taxpayers and employees of the school district

Reassignment of school principals challenged by students, resident taxpayers and employees of the school district

Decisions of the Commissioner of Education, Decision 16,431

In these appeals to the Commissioner of Education the petitioners challenged the school board's reassignment of school principals. As two separated appeals concerning the same issue were filed by different petitioners, the Commissioner consolidated them because they “present similar issues of fact and law.”

The petitioners in Appeal I alleged that board members acted negligently, with a wrongful purpose and not in the best interest of students, taxpayers and school staff and asked the Commissioner to overturn the board’s decision and remove certain named board members. 

The petitioners in Appeal II asked the Commissioner to order an “immediate mediation” of the parties’ dispute in order to ensure that the board’s action “was done properly.”

The school district asked the Commissioner to dismiss both appeals contending that

[1] The resolution passed following all due process requirements, in accordance with board policies and pursuant to the board’s powers under the Education Law;

[2] The board was not required to provide a rationale for the board’s decision

[3] the transfers were not made for a wrongful purpose or in willful violation or neglect of duty. And

[4] The transfers were in the best interest of the district.

The Commissioner first addressed a number of procedural issues that should be noted:

1. In Appeal II the petitioners submitted four newspaper articles to support their position. The Commissioner noted that “It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein” and that he did not consider them “for the veracity of their content.”

2. Petitioners in both Appeal I and Appeal II seek class certification but both appeals failed to satisfy the requirements. The Commissioner explained that while petitioners, as district residents and taxpayers, have standing to maintain the appeals and application, to the extent they seek class certification, they have failed to meet the requirements as an appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class. A petitioner seeking class certification must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class. In this instance, said the Commissioner, the “pleadings are entirely devoid of any allegations addressing these criteria” and class status was denied.

3. Another critical procedural requirement regarding Appeal I was noted by the Commissioner – joining necessary parties. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined. However in Appeal I two individual’s who would be affected if petitioners prevail on the appeal are necessary parties and petitioners’ failure to join them requires dismissal of Appeal I.

As to Appeal II, the Commissioner stated that it sought an order commanding “immediate mediation” between the board and the community – conducted by a designee from the State Education Department – to ensure that the board’s action here challenged was “done properly” in accordance with state law, applicable district policies and “the best interest of” the district’s students.”

The Commissioner pointed out that an appeal to the Commissioner is appellate in nature and does not provide for investigations. Although petitioners do not explicitly request an investigation, said the Commissioner, their request for a mediation process to determine the propriety of the board’s action in light of their complaints is, in essence, a request for an investigation – relief that is not available in the context of an appeal under §310 of the Education Law.

The final issue addressed by the Commissioner: the application of the petitioners in Appeal I for the removal of school officials.

The Commissioner said that although a member of the board of education or a school officer may be removed from office pursuant to Education Law §306 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 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.

Based on the record before the Commissioner, the Commissioner ruled that the petitioners in Appeal I have failed to establish that the actions of the individual respondents in voting to transfer the two principals warrant their removal. Further, said the Commissioner, the alleged violations, even if proven, would not, on the record before him, “rise to the level of willful violation of law and neglect of duty that would constitute sufficient grounds for the removal of the individual respondents.” 

The bottom line: The Commissioner decided that on the record before him, petitioners have not met their burden of demonstrating that respondents engaged in any willful or intentional misconduct warranting their removal from office and dismissed the appeals and the application for the removal of certain school officials.

In light of this disposition, I need not consider the parties’ remaining contentions.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16431.html

Juul Agreement entered into by the parties extending a teacher’s probationary period held valid notwithstanding its not being presented to and approved by the school board

Juul Agreement* entered into by the parties extending a teacher’s probationary period held valid notwithstanding its not being presented to and approved by the school board

Marshall v Pittsford Cent. Sch. Dist., 2012 NY Slip Op 07791

A probationary teacher [T] had “the expectation that her probationary period would last for three years.”

At the end of her third probationary year T was informed by the School Superintendent that the Superintendent would not be recommended T to the school board for tenure. In lieu of termination, T entered into a Juul agreement* with the school district. Accordingly, T was granted a fourth probationary year in exchange for the waiver of her right to a claim of tenure by estoppel.

Although the Juul Agreement was signed by T, the Teacher’s Association President and the School Superintendent, it was neither presented to nor ratified by the school board.

Prior to the end of T’s fourth probationary year, the Superintendent again advised T that the she would not recommend T for tenure. T was also told that her appointment as a probationary teacher with school district would end on June 30.

The school board voted to deny T tenure, whereupon T filed a petition pursuant to CPLR Article 78 seeking a court order "declaring" that she has tenure with the School District.

Supreme Court dismissed T’s petition; the Appellate Division affirmed the lower court’s ruling.

The Appellate Division explained that the record establishes that the Juul agreement between T and the school district was fairly made, holding that “T is estopped from challenging its validity, including the waiver of her right to tenure by estoppel contained therein.”

Conceding that the Juul agreement had not approved by the school board, which omission was characterized by the Appellate Division as “an impermissible abdication of a school board's responsibility to act as trustee …,” the court said that nevertheless agreed with [the school district] that T was equitably estopped** from disaffirming the Juul agreement despite the school board's failure to authorize or ratify it.

Here, said the court, the Superintendent unequivocally stated that she did not intend to recommend T for tenure at the end of her third probationary year based on T's evaluations and input from the Principal. In lieu of the Superintendent's recommending to the Board that T be denied tenure, the parties entered into the Juul agreement.

Further, said the Appellate Division the agreement expressly stated that "the Superintendent . . . has informed [T] that she will not be recommended for tenure at the end of her probationary period (June 30, 2010); and . . . the Superintendent has informed [T] that she is willing to recommend an extension of her probationary period for one year."

The agreement signed by the parties identified above also included a clause that stated that T "accepts the extension of her probationary period until June 30, 2011," and that T "agrees that she waives any right to claim status as tenured teacher by estoppel, acquiescence or any other reason as a result of this extension."

Inasmuch as the record establishes that the Juulagreement was fairly made, the Appellate Division ruled that T is estopped from challenging its validity and may not now disavow her waiver of her right to tenure by estoppel.

*  In Juul v Board of Education, 76 A.D.2d 837, [Affirmed 55 NY2d 648], the Appellate Division held that agreements to extend probationary periods are valid and enforceable when found to be a "knowing and voluntary waiver of the protections afforded by the Education Law."

** The Appellate Division said that “"Equitable estoppel is imposed by law in the interest of fairness to prevent the enforcement of rights which would work a fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party's words or conduct, has been misled into acting upon the belief that such enforcement would not be sought."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07791.htm