Continuing Legal Education courses offered pro bono by Tully Rinckey, PLLC
Source: Announcement from Tully Rinckey
Tully Rinckey, a law firm headquartered in Albany, New York, is offering a number of continuing legal education [CLE] courses that can be used to satisfy the minimum annual CLE requirements for newly admitted attorneys without any cost to the participants.
The first in the series of the monthly CLE courses being offered, Domestic Violence, will be held on September 21, 2010 in the Tully Rinckey Conference Room, 441 New Karner Road, Albany, NY. This one-hour course will be presented by Jennifer Corcoran, Esq. and starts at 6:00 p.m. Participants will earn one [1] CLE credit in the area of professional practice.
To register for the course, and for information about the other CLE courses to be offered, call Tully Rinckey [518-640-1258] or e-mail the firm at CLE@tullylegal.com.
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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 14, 2010
Early termination of a school superintendent's contract permitted
Early termination of a school superintendent's contract permitted
Peebles and Forestville CSD, Comm of Ed Decision 13845
A school board's approval of the early termination of its school superintendent's contract resulted in a board member filing a complaint concerning its action with the Commissioner of Education.
Forestville Central School District Superintendent J. Richard Rodriguez was under contract with the District through June 30, 1997. The contract allowed Rodriguez to resign prior to that date by giving the Board of Education at least 90 days written notice. The contract also permitted the Board and the Superintendent to terminate the Superintendent's employment at any time on such terms as they mutually agree upon in writing.
On June 5, 1996 Rodriguez learned that he had been appointed as superintendent by another district effective August 5, 1996. Rodriguez and Tina Duliba, the then Board President, discussed the District's waiving the 90-day notice requirement in exchange for Rodriguez's returning 31 unused vacation days and a pro-rata portion of a $10,000 performance award due him.
During an executive session held by the Board on June 19, 1996, the waiver plan was discussed and Rodriguez submitted his resignation. At its regular meeting on the same day Board member Richard L. Peebles introduced a motion to accept Rodriguez's resignation effective August 4, 1996. His motion was adopted by a unanimous vote.
On August 26, 1996 Peebles filed an appeal with the Commissioner of Education challenging the Board's waiver allowing the early termination of Rodriguez's contract. Peebles contended that Duliba permitted Rodriguez to violate his employment contract by allowing him to leave 45 days early. He also charged that Rodriguez's salary had been miscalculated, resulting in a $12,500 loss to the District. Peebles asked the Commissioner to remove Duliba from the Board and to order Rodriguez to reimburse the District $12,500.
On September 4, 1996 the Board adopted a resolution ratifying its June 19 executive session agreement with Rodriguez, including his surrendering vacation days and part of his performance pay in exchange for its waiving the 90-day notice requirement.
The Board responded to Peebles' claims by arguing that it and Rodriguez had mutually agreed upon the terms of his release from the contract at the June 19 executive session and any failure to record the terms of the agreement were [sic] cured when the Board ratified the agreement with a formal resolution on September 4, 1996.
The Commissioner dismissed Peebles' appeal, finding:
1. Peebles failed to satisfy his burden of establishing the facts upon which he sought relief.
2. Evidence submitted by the Board indicated that the entire Board discussed and approved the early release date and accepted Rodriguez's offer to exchange vacation days and a pro-rata portion of his performance bonus for its approving his early release from the contract.
3. Although the business office had originally miscalculated Rodriguez's salary, the error was eventually corrected and it does not appear that the District overpaid Rodriguez .
In addition, the Commissioner said that there is simply no basis for the removal of ... Duliba since there is no evidence of a willful violation or neglect of duty under [Section 306.1 of the Education] law.
Probably this situation would have been avoided had the District memorialized the decision or agreements reached by the parties during the Board's executive session at the Board's regular meeting later that day.
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Peebles and Forestville CSD, Comm of Ed Decision 13845
A school board's approval of the early termination of its school superintendent's contract resulted in a board member filing a complaint concerning its action with the Commissioner of Education.
Forestville Central School District Superintendent J. Richard Rodriguez was under contract with the District through June 30, 1997. The contract allowed Rodriguez to resign prior to that date by giving the Board of Education at least 90 days written notice. The contract also permitted the Board and the Superintendent to terminate the Superintendent's employment at any time on such terms as they mutually agree upon in writing.
On June 5, 1996 Rodriguez learned that he had been appointed as superintendent by another district effective August 5, 1996. Rodriguez and Tina Duliba, the then Board President, discussed the District's waiving the 90-day notice requirement in exchange for Rodriguez's returning 31 unused vacation days and a pro-rata portion of a $10,000 performance award due him.
During an executive session held by the Board on June 19, 1996, the waiver plan was discussed and Rodriguez submitted his resignation. At its regular meeting on the same day Board member Richard L. Peebles introduced a motion to accept Rodriguez's resignation effective August 4, 1996. His motion was adopted by a unanimous vote.
On August 26, 1996 Peebles filed an appeal with the Commissioner of Education challenging the Board's waiver allowing the early termination of Rodriguez's contract. Peebles contended that Duliba permitted Rodriguez to violate his employment contract by allowing him to leave 45 days early. He also charged that Rodriguez's salary had been miscalculated, resulting in a $12,500 loss to the District. Peebles asked the Commissioner to remove Duliba from the Board and to order Rodriguez to reimburse the District $12,500.
On September 4, 1996 the Board adopted a resolution ratifying its June 19 executive session agreement with Rodriguez, including his surrendering vacation days and part of his performance pay in exchange for its waiving the 90-day notice requirement.
The Board responded to Peebles' claims by arguing that it and Rodriguez had mutually agreed upon the terms of his release from the contract at the June 19 executive session and any failure to record the terms of the agreement were [sic] cured when the Board ratified the agreement with a formal resolution on September 4, 1996.
The Commissioner dismissed Peebles' appeal, finding:
1. Peebles failed to satisfy his burden of establishing the facts upon which he sought relief.
2. Evidence submitted by the Board indicated that the entire Board discussed and approved the early release date and accepted Rodriguez's offer to exchange vacation days and a pro-rata portion of his performance bonus for its approving his early release from the contract.
3. Although the business office had originally miscalculated Rodriguez's salary, the error was eventually corrected and it does not appear that the District overpaid Rodriguez .
In addition, the Commissioner said that there is simply no basis for the removal of ... Duliba since there is no evidence of a willful violation or neglect of duty under [Section 306.1 of the Education] law.
Probably this situation would have been avoided had the District memorialized the decision or agreements reached by the parties during the Board's executive session at the Board's regular meeting later that day.
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Financial Disclosure by Federal Officers
Financial Disclosure by Federal Officers
Formal Opinion of the Attorney General 98-F1
The Attorney General concludes that federal officials serving as members or directors of State public benefit corporation to monitor federal funds cannot be required to comply with New York's financial disclosure requirements [Section 73-a, Public Officers Law].
The opinion indicates that a state cannot impose qualifications on federal officials in addition to those the federal government had deemed sufficient where the federal officials are serving with the corporation as officials of the federal government rather than in their personal capacities.
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Formal Opinion of the Attorney General 98-F1
The Attorney General concludes that federal officials serving as members or directors of State public benefit corporation to monitor federal funds cannot be required to comply with New York's financial disclosure requirements [Section 73-a, Public Officers Law].
The opinion indicates that a state cannot impose qualifications on federal officials in addition to those the federal government had deemed sufficient where the federal officials are serving with the corporation as officials of the federal government rather than in their personal capacities.
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Disciplinary action for failure to maintain height and weight requirements to continue in public employment lawful
Disciplinary action for failure to maintain height and weight requirements to continue in public employment lawful
Francis v. City of Meriden, CA2, 129 F.3d 281, Cert. denied, 526 U.S. 1018
Does disciplining law enforcement personnel and firefighters who fail to meet certain “weight/height” guidelines constitute unlawful discrimination under Americans with Disabilities Act of 1990 [ADA] or the Rehabilitation Act of 1973 [RHA]? In the Francis case, the U.S. Circuit Court of Appeals, Second Circuit [New York], ruled that such discipline is not discriminatory.
City of Meriden, Connecticut, firefighter John A. Francis had been suspended for one day because he exceeded the Meriden fire department’s weight/fitness guidelines for firefighters set out in a collective bargaining agreement. Under the terms of the agreement, a firefighter whose weight exceeded the limits had to demonstrate his or her fitness by passing either a body fat test or a physical fitness test. If the firefighter was unable to do so, he or she could be disciplined and subject to disciplinary penalties up to and including termination.
Obesity, except in cases where the obesity relates to a physiological disorder, is not a “physical impairment” within the meaning of the statutes. For the purposes of ADA and RHA, an “impairment” does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight or muscle tone that are within “normal” range and are not the result of a physiological disorder. [29 C.F.R. Section 1630.2(h)]
To state a claim under the ADA or the RHA, individual must either have an impairment or be able to show that he or she was “regarded as” having such an impairment.” An employer who disciplines an employee for not meeting certain weight guidelines has not unlawfully discriminated against the employee unless it can be shown that either (1) the weight condition is the symptom of a physiological disorder, or (2) that the employer’s disciplinary action was based on the perception that the employee is obese as a result of a physiological disorder (“morbidly obese.”) [See Andrews v. State of Ohio, 104 F.3d 803 (6th Cir. 1997)]
According to the decision, “a plaintiff ... must allege that the employer believed, however erroneously, that the individual suffered from an “impairment” that, if it truly existed, would be covered under the statutes and that the employer discriminated against the plaintiff on that basis.” The Court said Francis’ action had to be dismissed because “to hold otherwise would open up the ‘regarded as’ prongs of the ADA and the RHA to a range of physical conditions -- height, strength, dexterity, and left-handedness, for example -- not meant to be covered by the Acts.”
The Court said that employers subject to ADA and the Rehabilitation Act may not discriminate against a qualified individual with a disability with respect to the “job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”
A “physical impairment” under the ADA is defined by regulations issued by the Equal Employment Opportunity Commission (“EEOC”) as “[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, ... cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.” 29 C.F.R. Section 1630.2(h)(1).1. For the purposes of HRA, the same definition is applied [45 C.F.R. Section 84.3(j)(2)(i).2].
The text of the decision is posted at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/heightweight-requirements-in-public.html
Francis v. City of Meriden, CA2, 129 F.3d 281, Cert. denied, 526 U.S. 1018
Does disciplining law enforcement personnel and firefighters who fail to meet certain “weight/height” guidelines constitute unlawful discrimination under Americans with Disabilities Act of 1990 [ADA] or the Rehabilitation Act of 1973 [RHA]? In the Francis case, the U.S. Circuit Court of Appeals, Second Circuit [New York], ruled that such discipline is not discriminatory.
City of Meriden, Connecticut, firefighter John A. Francis had been suspended for one day because he exceeded the Meriden fire department’s weight/fitness guidelines for firefighters set out in a collective bargaining agreement. Under the terms of the agreement, a firefighter whose weight exceeded the limits had to demonstrate his or her fitness by passing either a body fat test or a physical fitness test. If the firefighter was unable to do so, he or she could be disciplined and subject to disciplinary penalties up to and including termination.
Obesity, except in cases where the obesity relates to a physiological disorder, is not a “physical impairment” within the meaning of the statutes. For the purposes of ADA and RHA, an “impairment” does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight or muscle tone that are within “normal” range and are not the result of a physiological disorder. [29 C.F.R. Section 1630.2(h)]
To state a claim under the ADA or the RHA, individual must either have an impairment or be able to show that he or she was “regarded as” having such an impairment.” An employer who disciplines an employee for not meeting certain weight guidelines has not unlawfully discriminated against the employee unless it can be shown that either (1) the weight condition is the symptom of a physiological disorder, or (2) that the employer’s disciplinary action was based on the perception that the employee is obese as a result of a physiological disorder (“morbidly obese.”) [See Andrews v. State of Ohio, 104 F.3d 803 (6th Cir. 1997)]
According to the decision, “a plaintiff ... must allege that the employer believed, however erroneously, that the individual suffered from an “impairment” that, if it truly existed, would be covered under the statutes and that the employer discriminated against the plaintiff on that basis.” The Court said Francis’ action had to be dismissed because “to hold otherwise would open up the ‘regarded as’ prongs of the ADA and the RHA to a range of physical conditions -- height, strength, dexterity, and left-handedness, for example -- not meant to be covered by the Acts.”
The Court said that employers subject to ADA and the Rehabilitation Act may not discriminate against a qualified individual with a disability with respect to the “job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”
A “physical impairment” under the ADA is defined by regulations issued by the Equal Employment Opportunity Commission (“EEOC”) as “[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, ... cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.” 29 C.F.R. Section 1630.2(h)(1).1. For the purposes of HRA, the same definition is applied [45 C.F.R. Section 84.3(j)(2)(i).2].
The text of the decision is posted at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/heightweight-requirements-in-public.html
September 13, 2010
Newspaper ordered to disclose the source of alleged inaccurate information it published to the individual suing for alleged defamation
Newspaper ordered to disclose the source of alleged inaccurate information it published to the individual suing for alleged defamation
Matter of Pakter v New York City Dept .of Educ., 2010 NY Slip Op 32451(U, August 20, 2010, Supreme Court, New York County, Judge Cynthia S. Kern [Not selected for publication in the Official Reports]
David Pakter, a school teacher employed by the New York City Department of Education [DOE], was charged with misconduct and removed from his classroom teaching duties and assigned to one of the DOE’S reassignment centers, also known as the “rubber rooms.’’
On March 21, 2010, the New York Post published an article titled “Bored of Ed. in Rubber Rooms.” A sidebar to this article featuring “notable rubber room residents” included Pakter and stated that he was charged with sexual misconduct. Pakter, however, had not been charged with sexual misconduct and the Post subsequently ran a retraction.
Pakter, believing himself to have been defamed and intending to bring a lawsuit against the person or persons who provided the Post with the inaccurate information, asked the Post and DOE to identify the source of the incorrect statement.
When his request was denied, Pakter filed a petition in Supreme Court seeking a court order to compel the disclosure the name or names of the person or persons involved with providing the information and any documentation that he had been charged with sexual misconduct. He also asked for a court order compelling the Post and DOE to preserve all “notes, emails, and electronically stored information” concerning the event.
Judge Kern ruled that Pakter was entitled to “pre-action disclosure of information” as to the identity of the source or sources who provided the Post with the statement as he had made a “strong showing that a cause of action exists” for a cause of action for defamation alleging a false statement, published without privilege or authorization to a third party.
Further, said the court, such pre-action discovery is permitted in cases, such as here, where an individual having a valid claim for defamation needs "to identify the unnamed source or sources who provided defamatory information to a newspaper in order to bring an action against them."
The Post was ordered to answer interrogatories limited to the issue of the name(s) of the source or sources who provided the Post with the statement that Pakter had been charged with sexual misconduct "as reported in the article and sidebar to the article entitled 'Bored of Ed. in Rubber Rooms'" and, in addition, both the Post and DOE were directed “to preserve any documents, reporter’s notes, emails, and electronically stored information related to the statement at issue.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32451.pdf
N.B. Now pending before the Court of Appeals is Geraci v Probst [see 61 AD3d 717]. This case concerns whether the original publisher of a libelous letter could be held responsible for its subsequent publication in a newspaper. The Appellate Division's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2009/2009_02971.htm
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Matter of Pakter v New York City Dept .of Educ., 2010 NY Slip Op 32451(U, August 20, 2010, Supreme Court, New York County, Judge Cynthia S. Kern [Not selected for publication in the Official Reports]
David Pakter, a school teacher employed by the New York City Department of Education [DOE], was charged with misconduct and removed from his classroom teaching duties and assigned to one of the DOE’S reassignment centers, also known as the “rubber rooms.’’
On March 21, 2010, the New York Post published an article titled “Bored of Ed. in Rubber Rooms.” A sidebar to this article featuring “notable rubber room residents” included Pakter and stated that he was charged with sexual misconduct. Pakter, however, had not been charged with sexual misconduct and the Post subsequently ran a retraction.
Pakter, believing himself to have been defamed and intending to bring a lawsuit against the person or persons who provided the Post with the inaccurate information, asked the Post and DOE to identify the source of the incorrect statement.
When his request was denied, Pakter filed a petition in Supreme Court seeking a court order to compel the disclosure the name or names of the person or persons involved with providing the information and any documentation that he had been charged with sexual misconduct. He also asked for a court order compelling the Post and DOE to preserve all “notes, emails, and electronically stored information” concerning the event.
Judge Kern ruled that Pakter was entitled to “pre-action disclosure of information” as to the identity of the source or sources who provided the Post with the statement as he had made a “strong showing that a cause of action exists” for a cause of action for defamation alleging a false statement, published without privilege or authorization to a third party.
Further, said the court, such pre-action discovery is permitted in cases, such as here, where an individual having a valid claim for defamation needs "to identify the unnamed source or sources who provided defamatory information to a newspaper in order to bring an action against them."
The Post was ordered to answer interrogatories limited to the issue of the name(s) of the source or sources who provided the Post with the statement that Pakter had been charged with sexual misconduct "as reported in the article and sidebar to the article entitled 'Bored of Ed. in Rubber Rooms'" and, in addition, both the Post and DOE were directed “to preserve any documents, reporter’s notes, emails, and electronically stored information related to the statement at issue.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32451.pdf
N.B. Now pending before the Court of Appeals is Geraci v Probst [see 61 AD3d 717]. This case concerns whether the original publisher of a libelous letter could be held responsible for its subsequent publication in a newspaper. The Appellate Division's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2009/2009_02971.htm
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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.
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