Exhaustion of administrative remedies

It is clear that New York courts, as a general rule, will not consider lawsuits filed by an aggrieved Plaintive protesting some administrative determination unless the Plaintiff has exhausted his or her or its administrative remedies.

The major exception to this rule: a party's effort to exhaust an available administrative remedy would constitute "an exercise in futility". Typically, New York courts apply this exception when it is deemed that the administrative decision is a foregone conclusion.

There is a coda to this exception as the Appellate Division indicated in deciding the instant CPLR Article 78 action. 

The Appellate Division rejected the New York City Department of Records and Information Services' [Records] argument that the Petitioner had failed to exhaust its administrative remedies, noting that Petitioner "... filed a timely administrative appeal from [Record's] initial denial of [Petitioner's] FOIL request" and Records had denied that appeal.

The court then opined "Petitioner was not required to bring a second administrative appeal challenging [Record's] determination of [Petitioner's] first administrative appeal."

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

Employment Opportunities with the New York State Department of Education

The New York State Department of Educations invites those interested in employment with Department to explore its current job and career opportunities as it is currently seeking talented candidates to join its team. 

The Department is responsible for educational services from pre-kindergarten through graduate school and oversees licensed professions, certified educators, as well as cultural institutions including libraries, archives and museums, and provides services to individuals with disabilities. 

It is the policy of the Department to provide for and promote equal opportunity in employment, compensation and other terms and conditions of employment without discrimination on the basis of age, race, color, religion, disability, national origin, gender, genetic predisposition or carrier status, sexual orientation, marital status, or arrest and/or criminal conviction record unless based upon a bona fide occupational qualification or other exception. 

Employees are hired by the Department in accordance with the New York Civil Service Law.  Positions in this and other State agencies generally are filled through competitive examinations.  Visit the New York State Department of Civil Service (link is external) for examination announcements and information about how to apply for a Civil Service examination. 

Click HERE for additional information concerning these employment opportunities.

 

Appeal pursuant to New York State's Dignity for All Students Act submitted to the Commissioner of Education

New York State's Dignity for All Students Act* [DASA] prohibits harassment and bullying in public schools.  DASA defines “harassment” and “bullying,” in relevant part, as: “the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying ....”.  

Such a hostile environment may be created where bullying or harassment:

(a) has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional or physical well-being; or

(b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety; or

(c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student ....

Citing Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,859 and Appeal of L.D., 55 Ed Dept Rep, Decision No. 16,864, the Commissioner of Education observed that a School District’s DASA determination will be reversed "only upon a showing that it was arbitrary or capricious."

Explaining that the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief, in the instant mater the Commissioner found:

1. The record demonstrated that the School District responded to Petitioner’s allegations of bullying and harassment of Petitioner’s child [Student] appropriately; 

2. The school principal investigated each of the alleged incidents and addressed the alleged misconduct of "A" and "B" promptly;

3. The School District took remedial action to protect Student in school and prevent future bullying or harassment, including the implementation of a “stay away” agreement between Student and "A"; and

4. The principal explained the inappropriateness of "B" addressing derogatory language to Student, and "B" subsequently apologized to Student.

Finding that Petitioner failed to meet her burden of proving that [1] the School District acted in an arbitrary and, or, a capricious manner or [2] that any other relief was warranted, the Commissioner dismissed Petitioner's appeal. 

* Education Law §11[7]; 8 NYCRR 100.2 [kk] [1]

Click HERE to access the Commissioner's decision.