School district advised to comply with the Commissioner’s regulations as to staffing or obtain approval for an alternate staffing arrangement
Sharon Kennedy-Frost And United Federation Of Teachers, Local 2, American Federation Of Teachers, AFL-CIO, Decisions of the Commissioner of Education 16,130
A number of a library media specialist [LMS] employed by the New York City Department of Education and their collective bargaining representative contended that the Department failed to comply with the staffing requirements set forth in §91.2 of the Commissioner’s regulations.
The Department’s defense: it was in “substantial compliance with the regulation” and thus its actions were legal, proper, and reasonable.
However, said the Commissioner, the Department admitted to being only “substantial” compliance with the regulation and the record reflects that they have failed to staff certain secondary schools with the required number of personnel or provide an alternative staffing arrangement approved by the Commissioner. The Commissioner then “advised” the Department to either [1] staff its schools appropriately or [2] obtain the Commissioner’s approval for an alternate arrangement as provided in §91.2 of the Commissioner’s regulations.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16130.htm
.
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
September 09, 2010
Alcoholism as a defense in a disciplinary action
Alcoholism as a defense in a disciplinary action
Murolo v Safir, Appellate Division, 246 A.D.2d 653, Leave to appeal denied, 91 N.Y.2d 813
In McEniry v Landi, 84 NY2d 554, the Court of Appeals said that alcoholism qualifies as a disability within the meaning of the State’s Human Rights Law [Section 292.21, Executive Law]. A New York City firefighter, David Murolo, challenged his disciplinary dismissal by contending his misconduct was caused by an alcohol abuse problem that he had overcome. He claimed that his firing violated the Human Rights Law, citing the McEniry decision.
Disciplinary action began after Murolo called in a false alarm. While his fellow firefighters were responding to the false alarm, Murolo took $223 of “communal money” from the station house. After admitting at a disciplinary hearing that he had called in the false alarm and had taken the money, Murolo testified that:
1. He had been drinking heavily prior to the incident and “was not thinking straight.”
2. He had entered a counseling program for his alcohol problem as directed by the Department and had begun to attend Alcoholics Anonymous meetings.
The hearing officer determined that his status as a recovering alcoholic did not shield him from discipline for misconduct and recommended his termination. The Commissioner adopted the hearing officer’s recommendation.
Although a Supreme Court justice accepted Murolo’s argument and remanded the case to the Commissioner for the imposition of a lesser penalty, the Appellate Division disagreed and reinstated the Commissioner’s original determination.
The Appellate Division distinguished the situation in McEniry from Murolo’s.
In McEniry the issue was whether alcoholism prevented the officer from satisfactorily performing his duties. The Court of Appeals held that if an individual establishes a prima facie case that his discharged was based on his or her alcoholism, the burden shifts to the employer to show either that (1) the employee was not disabled by alcoholism, (2) there was an alcoholism disability but no reasonable accommodation was possible or (3) there an alcoholism disability but termination was for other reasons than behavior stemming from alcoholism.
Murolo v Safir, Appellate Division, 246 A.D.2d 653, Leave to appeal denied, 91 N.Y.2d 813
In McEniry v Landi, 84 NY2d 554, the Court of Appeals said that alcoholism qualifies as a disability within the meaning of the State’s Human Rights Law [Section 292.21, Executive Law]. A New York City firefighter, David Murolo, challenged his disciplinary dismissal by contending his misconduct was caused by an alcohol abuse problem that he had overcome. He claimed that his firing violated the Human Rights Law, citing the McEniry decision.
Disciplinary action began after Murolo called in a false alarm. While his fellow firefighters were responding to the false alarm, Murolo took $223 of “communal money” from the station house. After admitting at a disciplinary hearing that he had called in the false alarm and had taken the money, Murolo testified that:
1. He had been drinking heavily prior to the incident and “was not thinking straight.”
2. He had entered a counseling program for his alcohol problem as directed by the Department and had begun to attend Alcoholics Anonymous meetings.
The hearing officer determined that his status as a recovering alcoholic did not shield him from discipline for misconduct and recommended his termination. The Commissioner adopted the hearing officer’s recommendation.
Although a Supreme Court justice accepted Murolo’s argument and remanded the case to the Commissioner for the imposition of a lesser penalty, the Appellate Division disagreed and reinstated the Commissioner’s original determination.
The Appellate Division distinguished the situation in McEniry from Murolo’s.
In McEniry the issue was whether alcoholism prevented the officer from satisfactorily performing his duties. The Court of Appeals held that if an individual establishes a prima facie case that his discharged was based on his or her alcoholism, the burden shifts to the employer to show either that (1) the employee was not disabled by alcoholism, (2) there was an alcoholism disability but no reasonable accommodation was possible or (3) there an alcoholism disability but termination was for other reasons than behavior stemming from alcoholism.
Determining the compensation of the officers of a town
Determining the compensation of the officers of a town
Taney v Town of Waterloo, NYS App. Div., 245 A.D.2d 1079, Motion for leave to appeal denied, 91 N.Y.2d 957
Although a Town Board may determine the compensation to be paid a Town Justice, its decision to pay its justices at different rates may raise a federal “equal protection” issue. The Taney decision is an example of such a situation.
After Alfred C. Taney was reelected Waterloo Town Justice in 1996, the Town Board voted to reduce his salary from $8,975 to $1,200. It kept the salary being paid to its other Town Justice, who was then in the middle of his term of office, at $8,975. In 1997, the Town Board again considered the compensation being paid to its Town Justices. Taney’s salary was kept at $1,200; the salary of the other Town Justice’s was increased 3 percent. Taney filed a suit pursuant to Article 78 [Article 78, Civil Practice Law and Rules], contending that the Board’s actions violated his Constitutional rights under 42 USC 1983.
Seneca County Supreme Court Justice Harvey decided that Board’s 1997 salary determinations were arbitrary, capricious and an abuse of its discretion. The Court directed the Board to set Taney’s 1997 salary at “a fair and equitable amount.”
On appeal the Appellate Division commented that, pursuant to Section 27 of the Town Law, a Town Board has the power to set the salaries of its Town Justices and it is not obligated to pay all justices the same rate of compensation. Accordingly, the Court concluded that “there is nothing illegal per se in the Town Board’s 1997 decision to pay [Taney] a salary different from the other Town Justice [and] the amount of that salary is a decision left to the sound discretion of elected Town officials, who ordinarily should not be second-guessed.”
Nevertheless, the Appellate Division rejected the Board’s argument that Taney’s $1,200 salary was consistent with the salaries of Town Justices in other towns and that Taney was not given a raise in 1997 because of his reduced caseload.
Technical issues figured prominently in the decision. While “the determination of a Town Justice’s salary ... is properly the subject of a CPLR article 78 proceeding,” the Appellate Division held that:
1. The merits of the Board’s 1996 decision were not properly before the lower court because the Statute of Limitations for filing an Article 78 petition challenging the Board’s 1996 action had expired; and
2. The lower court should have considered Taney’s allegations concerning the Constitutionality of the Board’s 1996 action as the controlling “three-year Statute of Limitations with respect to the 42 USC 1983 cause of action ... has not expired.”
Accordingly, said the Court, “whether [Taney’s] constitutional rights were violated by the [Board’s] 1996 salary determination may be litigated in the context of that cause of action,” citing Benjamin v Town of Fenton, 892 F Supp 64.
Taney v Town of Waterloo, NYS App. Div., 245 A.D.2d 1079, Motion for leave to appeal denied, 91 N.Y.2d 957
Although a Town Board may determine the compensation to be paid a Town Justice, its decision to pay its justices at different rates may raise a federal “equal protection” issue. The Taney decision is an example of such a situation.
After Alfred C. Taney was reelected Waterloo Town Justice in 1996, the Town Board voted to reduce his salary from $8,975 to $1,200. It kept the salary being paid to its other Town Justice, who was then in the middle of his term of office, at $8,975. In 1997, the Town Board again considered the compensation being paid to its Town Justices. Taney’s salary was kept at $1,200; the salary of the other Town Justice’s was increased 3 percent. Taney filed a suit pursuant to Article 78 [Article 78, Civil Practice Law and Rules], contending that the Board’s actions violated his Constitutional rights under 42 USC 1983.
Seneca County Supreme Court Justice Harvey decided that Board’s 1997 salary determinations were arbitrary, capricious and an abuse of its discretion. The Court directed the Board to set Taney’s 1997 salary at “a fair and equitable amount.”
On appeal the Appellate Division commented that, pursuant to Section 27 of the Town Law, a Town Board has the power to set the salaries of its Town Justices and it is not obligated to pay all justices the same rate of compensation. Accordingly, the Court concluded that “there is nothing illegal per se in the Town Board’s 1997 decision to pay [Taney] a salary different from the other Town Justice [and] the amount of that salary is a decision left to the sound discretion of elected Town officials, who ordinarily should not be second-guessed.”
Nevertheless, the Appellate Division rejected the Board’s argument that Taney’s $1,200 salary was consistent with the salaries of Town Justices in other towns and that Taney was not given a raise in 1997 because of his reduced caseload.
Technical issues figured prominently in the decision. While “the determination of a Town Justice’s salary ... is properly the subject of a CPLR article 78 proceeding,” the Appellate Division held that:
1. The merits of the Board’s 1996 decision were not properly before the lower court because the Statute of Limitations for filing an Article 78 petition challenging the Board’s 1996 action had expired; and
2. The lower court should have considered Taney’s allegations concerning the Constitutionality of the Board’s 1996 action as the controlling “three-year Statute of Limitations with respect to the 42 USC 1983 cause of action ... has not expired.”
Accordingly, said the Court, “whether [Taney’s] constitutional rights were violated by the [Board’s] 1996 salary determination may be litigated in the context of that cause of action,” citing Benjamin v Town of Fenton, 892 F Supp 64.
Determining the compensation of the officers of a town
Determining the compensation of the officers of a town
Taney v Town of Waterloo, NYS App. Div., 245 A.D.2d 1079, Motion for leave to appeal denied, 91 N.Y.2d 957
Although a Town Board may determine the compensation to be paid a Town Justice, its decision to pay its justices at different rates may raise a federal “equal protection” issue. The Taney decision is an example of such a situation.
After Alfred C. Taney was reelected Waterloo Town Justice in 1996, the Town Board voted to reduce his salary from $8,975 to $1,200. It kept the salary being paid to its other Town Justice, who was then in the middle of his term of office, at $8,975. In 1997, the Town Board again considered the compensation being paid to its Town Justices. Taney’s salary was kept at $1,200; the salary of the other Town Justice’s was increased 3 percent. Taney filed a suit pursuant to Article 78 [Article 78, Civil Practice Law and Rules], contending that the Board’s actions violated his Constitutional rights under 42 USC 1983.
Seneca County Supreme Court Justice Harvey decided that Board’s 1997 salary determinations were arbitrary, capricious and an abuse of its discretion. The Court directed the Board to set Taney’s 1997 salary at “a fair and equitable amount.”
On appeal the Appellate Division commented that, pursuant to Section 27 of the Town Law, a Town Board has the power to set the salaries of its Town Justices and it is not obligated to pay all justices the same rate of compensation. Accordingly, the Court concluded that “there is nothing illegal per se in the Town Board’s 1997 decision to pay [Taney] a salary different from the other Town Justice [and] the amount of that salary is a decision left to the sound discretion of elected Town officials, who ordinarily should not be second-guessed.”
Nevertheless, the Appellate Division rejected the Board’s argument that Taney’s $1,200 salary was consistent with the salaries of Town Justices in other towns and that Taney was not given a raise in 1997 because of his reduced caseload.
Technical issues figured prominently in the decision. While “the determination of a Town Justice’s salary ... is properly the subject of a CPLR article 78 proceeding,” the Appellate Division held that:
1. The merits of the Board’s 1996 decision were not properly before the lower court because the Statute of Limitations for filing an Article 78 petition challenging the Board’s 1996 action had expired; and
2. The lower court should have considered Taney’s allegations concerning the Constitutionality of the Board’s 1996 action as the controlling “three-year Statute of Limitations with respect to the 42 USC 1983 cause of action ... has not expired.”
Accordingly, said the Court, “whether [Taney’s] constitutional rights were violated by the [Board’s] 1996 salary determination may be litigated in the context of that cause of action,” citing Benjamin v Town of Fenton, 892 F Supp 64.
Taney v Town of Waterloo, NYS App. Div., 245 A.D.2d 1079, Motion for leave to appeal denied, 91 N.Y.2d 957
Although a Town Board may determine the compensation to be paid a Town Justice, its decision to pay its justices at different rates may raise a federal “equal protection” issue. The Taney decision is an example of such a situation.
After Alfred C. Taney was reelected Waterloo Town Justice in 1996, the Town Board voted to reduce his salary from $8,975 to $1,200. It kept the salary being paid to its other Town Justice, who was then in the middle of his term of office, at $8,975. In 1997, the Town Board again considered the compensation being paid to its Town Justices. Taney’s salary was kept at $1,200; the salary of the other Town Justice’s was increased 3 percent. Taney filed a suit pursuant to Article 78 [Article 78, Civil Practice Law and Rules], contending that the Board’s actions violated his Constitutional rights under 42 USC 1983.
Seneca County Supreme Court Justice Harvey decided that Board’s 1997 salary determinations were arbitrary, capricious and an abuse of its discretion. The Court directed the Board to set Taney’s 1997 salary at “a fair and equitable amount.”
On appeal the Appellate Division commented that, pursuant to Section 27 of the Town Law, a Town Board has the power to set the salaries of its Town Justices and it is not obligated to pay all justices the same rate of compensation. Accordingly, the Court concluded that “there is nothing illegal per se in the Town Board’s 1997 decision to pay [Taney] a salary different from the other Town Justice [and] the amount of that salary is a decision left to the sound discretion of elected Town officials, who ordinarily should not be second-guessed.”
Nevertheless, the Appellate Division rejected the Board’s argument that Taney’s $1,200 salary was consistent with the salaries of Town Justices in other towns and that Taney was not given a raise in 1997 because of his reduced caseload.
Technical issues figured prominently in the decision. While “the determination of a Town Justice’s salary ... is properly the subject of a CPLR article 78 proceeding,” the Appellate Division held that:
1. The merits of the Board’s 1996 decision were not properly before the lower court because the Statute of Limitations for filing an Article 78 petition challenging the Board’s 1996 action had expired; and
2. The lower court should have considered Taney’s allegations concerning the Constitutionality of the Board’s 1996 action as the controlling “three-year Statute of Limitations with respect to the 42 USC 1983 cause of action ... has not expired.”
Accordingly, said the Court, “whether [Taney’s] constitutional rights were violated by the [Board’s] 1996 salary determination may be litigated in the context of that cause of action,” citing Benjamin v Town of Fenton, 892 F Supp 64.
Public entities are immune from negligence claims arising out of the performance of its governmental functions absent proof of a special relationship
Public entities are immune from negligence claims arising out of the performance of its governmental functions absent proof of a special relationship
Zeitlin v NYC Board of Education, NYS Supreme Court [Not selected for publication in the Official Reports]
Pupils assaulting teachers has become an occupational hazard in a number of school districts. What is a school district’s liability if a student assaults a teacher?
In the Zeitlin case New York State Supreme Court Justice Solomon considered a schoolteacher’s demand for compensatory and punitive damages based on his school district’s alleged failure to protect him from student assaults.
Citing Miller v State of New York, 62 NY2d 506, Justice Solomon described the basic law in such situations as follows:
Public entities are immune from negligence claims arising out of the performance of their governmental functions unless the injured person establishes a special relationship with that entity underlying a specific duty to protect that individual and reliance on the performance of that duty by the individual.
What is involved in establishing such a “specific duty?” According to the ruling, such a duty comes into being only where all four of the following elements are satisfied:
1. Assumption: An assumption by a municipality or municipal agency, through promises or actions, of an affirmative duty to act on behalf of the party who was injured;
2. Knowledge: Knowledge on the part of the municipality’s agents that inaction could lead to harm;
3. Direct Contact: Direct contact between the municipality’s agents and the injured party; and
4. Justifiable reliance: The injured party’s justifiable reliance on the municipality’s undertaking.
In the Zeitlin case the Court concluded that although providing security against physical attack from third parties was a governmental function, “Zeitlin fails to meet the first element [assumption] of a claimed special duty of protection and for that reason alone, his claim must fail” and dismissed his complaint. In other words, Zeitlin was unable to demonstrate a critical element -- that the District has assumed any responsibility for his safety at the work site.
This “four element” test is not usually applied in cases involving the safety of students, however. As the Appellate Division said in Foster v New Berlin Central School District, 246 AD2d 880, “school districts are under a duty to adequately supervise students in their care and will be liable for foreseeable injuries proximately related to the absence of adequate supervision.”
Zeitlin v NYC Board of Education, NYS Supreme Court [Not selected for publication in the Official Reports]
Pupils assaulting teachers has become an occupational hazard in a number of school districts. What is a school district’s liability if a student assaults a teacher?
In the Zeitlin case New York State Supreme Court Justice Solomon considered a schoolteacher’s demand for compensatory and punitive damages based on his school district’s alleged failure to protect him from student assaults.
Citing Miller v State of New York, 62 NY2d 506, Justice Solomon described the basic law in such situations as follows:
Public entities are immune from negligence claims arising out of the performance of their governmental functions unless the injured person establishes a special relationship with that entity underlying a specific duty to protect that individual and reliance on the performance of that duty by the individual.
What is involved in establishing such a “specific duty?” According to the ruling, such a duty comes into being only where all four of the following elements are satisfied:
1. Assumption: An assumption by a municipality or municipal agency, through promises or actions, of an affirmative duty to act on behalf of the party who was injured;
2. Knowledge: Knowledge on the part of the municipality’s agents that inaction could lead to harm;
3. Direct Contact: Direct contact between the municipality’s agents and the injured party; and
4. Justifiable reliance: The injured party’s justifiable reliance on the municipality’s undertaking.
In the Zeitlin case the Court concluded that although providing security against physical attack from third parties was a governmental function, “Zeitlin fails to meet the first element [assumption] of a claimed special duty of protection and for that reason alone, his claim must fail” and dismissed his complaint. In other words, Zeitlin was unable to demonstrate a critical element -- that the District has assumed any responsibility for his safety at the work site.
This “four element” test is not usually applied in cases involving the safety of students, however. As the Appellate Division said in Foster v New Berlin Central School District, 246 AD2d 880, “school districts are under a duty to adequately supervise students in their care and will be liable for foreseeable injuries proximately related to the absence of adequate supervision.”
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CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL.
For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.
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