Commissioner of Education will not consider aspects of an appeal concerning the Family Educational Rights and Privacy Act or the New York State's Public Meetings Law

Petitioners in this appeal to the Commissioner of Education included allegations the school board's policy violated the privacy protections provisions of the Family Educational Rights and Privacy Act [FERPA] and Education Law §2-d.  Petitioners also argue that the board of education violated New York State's Public Meetings Law by having certain discussions in executive session.

The school board contended that the petition must be dismissed because the Commissioner lacks jurisdiction over FERPA claims and Open Meetings Law claims.  The school board also asked the Commissioner to issue Certificates of Good Faith in accordance with Education Law §3811.

Citing 20 USC §1232g, the Commissioner agreed that to the extent Petitioners allege that the school board's  violated FERPA, "the Commissioner [of Education] lacks jurisdiction to consider FERPA claims," explaining that the United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations.

As to Petitioners complaint with respect to allege violations of the Open Meetings Law, the Commissioner observed that Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner.

Turning to the request that the Commissioner issue a certificate of good faith pursuant to Education Law §3811(1), the Commissioner noted that such certification "is solely for the purpose of authorizing the board to indemnify respondents 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 trustee."

As it is appropriate to issue such certification unless it is established on the record that the requesting board trustee member acted in bad faith, the Commissioner opined that in view of this decision, and the fact that there has been no finding that the board members involved acted in bad faith, the board members involved are entitled to a certificate of good faith.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume59/d17821

Probationary employee absent from work because of an off-duty accident terminated from the position

An employee [Probationer] terminated from his position prior to the completion of his probationary period "due to his extended absence from work" initiated a CPLR Article 78 proceeding seeking court review of the determination of the appointing authority dismissing him from the position. Supreme Court dismissed Probationer's petition and Probationer appealed the court's ruling.

The Appellate Division sustained the Supreme Court's decision, explaining that "A probationary employee may "be dismissed for almost any reason, or for no reason at all". In the words of the court, citing Matter of Yonkers Firefighters v City of Yonkers, 165 AD3d 816, "The employment of a probationary employee may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was [made] in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."

The genesis of Probationer's termination was his suffering injuries in a car accident while off-duty that prevented him from working. The Appellate Division found that although Probationer's absences were due to his injuries suffered in an off-duty car accident,* the appointing authority's termination of probationer's employment on this basis was not made in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law.

The court rejected Probationer's contention that the appointing authority should be estopped from terminating his employment based on its alleged promises that Probationer had one year to return to work following his injury or, in the alternative, because incorrect information had been given to Probationer with respect to his reinstatement, noting that "[e]stoppel is generally not available against a municipal defendant with regard to the exercise of its governmental functions or its correction of an administrative error."

* Section 72 of the Civil Service Law, Leave for ordinary disability, provides that an employee placed on leave by an appointing authority pursuant §72.1 may "within one year after the date of commencement of such leave of absence, or thereafter at any time until his or her employment status is terminated, make application to the civil service department or municipal commission having jurisdiction over the position from which such employee is on leave, for a medical examination by a medical officer selected for that purpose by such department or commission." In the event an employee placed on §72 leave is terminated from his position pursuant to §73 of the Civil Service Law, he may apply for reinstatement within one year of his recovery from the disability. Presumably the appointing authority had not placed Probationer on leave pursuant to §72.1.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_02608.htm

EEOC's "Return to Work" technical assistance questions and answers updated to address the COVID-19 pandemic

Harris Beach, PLLC, attorneys Daniel J. Moore and Daniel J. Palermo have posted an item on the firm's law blog LEGALALERT: noting that as employers start planning to reopen, there have been questions about how to implement COVID-19 risk-reduction measures in ways that are consistent with workplace discrimination laws. 

They report that "On Thursday, May 7, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued revised guidance addressing 'Return to Work' and compliance with the Americans with Disabilities Act (ADA)"  and explains "how businesses should handle accommodations for 'high risk' employees with underlying medical conditions."

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