Appeal to the Commissioner of Education involving a school board election, an alleged denial of "free speech," and failure to agree to a new collective bargaining agreement dismissed for procedural reasons

Noting that the 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, the Commissioner of Education dismissed an appeal involving challenges to a school board election for a number of reasons, including:

1. Failure to establish any grounds for relief: The Commissioner opined that the Petitioner failed to submit a reply or otherwise addressed certain assertions advance by the school district and thus failed to establish any basis for relief in connection with this claim.

2. Standing to assert rights on behalf of another: To the extent that the Petitioner sought to assert the individual rights of another person or his “surrogate” with respect such person serving as a poll watcher for Petitioner, the Commissioner held that Petitioner lacked standing to do so.

3. Free speech: The Commissioner, noting that Courts have held that a school board meeting is a limited public forum for purposes of the First Amendment and a school board's placing “Reasonable time, place and manner restrictions on speech in limited public fora comport with the Constitution ... [if] they are content-neutral, serve a significant government interest and leave open alternative channels for expression”, held that Petitioner failed to establish that the school board violated his right to free speech in connection with a board meeting. Here, said the Commissioner, "the district clerk asserts that “[Petitioner] has been prohibited from publicly speaking at regular board meetings only to the extent that he has commented on matters outside the agenda, has gone beyond the time allotted for comment, or has made pejorative and/or repetitive comments.”

4. Lack of Jurisdiction to consider a matter: Addressing Petitioners assertions concerning the school board failing to agree to a new collective bargaining agreement, the Commissioner, citing Civil Service Law §205 [5] [d], held that this issue "must be dismissed for lack of jurisdiction," explaining that the Civil Service Law vests exclusive jurisdiction over complaints involving collective bargaining in the Public Employment Relations Board [“PERB”].*

* See, also, Matter of New York City Transit Authority v. New York StatePublic Employment Relations Board, et al., 19 NY3d 876.

Click HEREto access the full text of the Commissioner's decision in the appeal. 

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The New York City Teachers Retirement System's rejection of a member's application for accidental disability retirement trumps the Social Security Administration's finding that member was disabled

The genesis of this Article 78 action was New York City Teachers Retirement System [NYCTRS] disapproval of a member's [Plaintiff] application for accidental disability retirement notwithstanding the fact that the Social Security Administration had earlier found that the Plaintiff was disabled.

Supreme Court dismissed Plaintiff's petition, which ruling was unanimously affirmed by the Appellate Division.

Citing Matter of Merlino v Teachers' Retirement Sys. of the City of N.Y., 177 AD3d 430, the Appellate Division opined that NYCTRS' determination to deny Petitioner's application for accident disability retirement was not arbitrary and capricious, and was supported by some credible evidence. The court, noting that NYCTRS' Medical Board determination the Petitioner was not disabled was supported by its physical examination and interview of the Petitioner.

The Board, said the court, found upon examination, Petitioner was able to move around unassisted, had normal strength and range of motion in his shoulders, elbows, wrists, and hips, and had little or no tenderness in his neck and back. Further, the Medical Board noted that Petitioner had not had standard of care epidural injections, trigger point injections, or any other procedures to improve his current complaints.

Although Petitioner claimed that the Medical Board had ignored his medical history, the Appellate Division said that any conflicting evidence was for the Medical Board to resolve.

Addressing Petitioner's reliance on the disability finding of the Social Security Administration that Petitioner was disabled, the court said the Social Security Administration's finding was not dispositive of the Medical Board's disability determination nor did the finding of a medical arbitrator, who examined Petitioner after the Medical Board made its determination, "warrant Article 78 relief." 

CLICK HEREto access the full text of the Appellate Division in this action.