Eligibility to serve as a school board member

Eligibility to serve as a school board member
Jackson and City of Long Beach CSD, Decisions of the Commissioner of Education, #14,131

Norman B. Alpren, a member of the Long Beach City School District since 1989, was appointed Commissioner of the Long Beach Auxiliary Police [CAP] in 1994. This was a volunteer position.

Mark Jackson and Scott Abramson challenged Alpren’s continuing to serve as a member of the school board while simultaneously serving as CAP. They asked the Commissioner of Education to declare Alpren ineligible for the board, citing Section 2502(7) of the Education Law, which forbids holders of city offices , with some exceptions, from being members of school boards. According to their petition, the position of CAP is a “city office.” Although police officers are exempt and can serve on school boards, the petitioners claimed that the CAP role “does not fall within the statutory exception of ‘policeman’ because it does not ‘endow police officer status.’”

The Commissioner ruled that Alpren could simultaneously serve in both positions, noting that the CAP position was established by the bylaws of the Long Beach Police Department rather than by statute or ordinance and thus Alpren did not hold “public office” within the meaning of Section 2502(7).
.

Testing for illegal drugs

Testing for illegal drugs
Davis v Safir, App. Div., 262 AD2d 107

New York City police officer Freida Davis tested positive for cocaine after being given EMIT and GC/MS tests. This ultimately resulted in the Police Commissioner dismissing her from the force.

Davis sued, contending that GC/MS tests were unreliable and could give “false positive” results. The Appellate Division dismissed her appeal, holding that the positive test results “constitute substantial evidence of petitioner’s possession and use of cocaine.” The court rejected Davis’ argument that the GC/MS testing procedures were unreliable and likely to produce a false positive.

The decision points out that “even if the positive result obtained by the GC/MS tests are disregarded, the positive result obtained by the EMIT tests, the reliability of which [Davis] does not challenge, would alone constitute substantial evidence of the use of cocaine, citing Lahey v Kelly, 71 NY2d 135.

As to the penalty imposed, the court said that “the penalty of dismissal does not shock our sense of fairness” and sustained the Commissioner’s determination.
.

An educator may accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously under certain circumstances

An educator may accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously under certain circumstances
Nancy Pearse v Board of Education of the Burnt Hills-Ballston Lake Central School District, Decisions of the Commissioner of Education, Decision #16,159

The Commissioner of Education sustained, in part, an appeal filed by Nancy Pearse challenging the determination of the Board of Education of the Burnt Hills-Ballston Lake Central School District and its Superintendent, James Schultz, to excess her as a foreign language teacher.

Pearse served in a position where she was assigned to spend 60% of her time as Dean of Students and 40% of her time as a foreign language teacher. On January 22, 2008, the board granted Pearse tenure in the administrative tenure area of dean of students, effective March 19, 2008.

In June 2008 the district abolished Pearse’s .4 teaching assignment as a foreign language teacher and she was laid off as a result.

Pearse appealed to the Commissioner contending that the board had violated her tenure and seniority rights as a foreign language teacher. She argued that she had received tenure by estoppel* in the foreign language tenure area and that she was not the least senior foreign language teacher in the district at the time it abolished her postion.

As redress, Pearse asked the Commissioner to direct the district to reinstate her to her foreign language teaching position, with back pay and benefits.

The district, on the other hand, argued that as Pearse’s teaching position was part-time, she was not eligible to receive tenure in the foreign language tenure area. In addition, the district contended that the decision to layoff Pearse’s was lawful because she was not entitled to accrue tenure and seniority rights in both an administrative and teaching tenure area simultaneously and, therefore, that she never accrued tenure or seniority rights as a foreign language teacher in the district.

The Commissioner said that Pearse’s appeal “presents a novel issue -- whether an educator may accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously.

The test of whether an employee should be deemed to serve in an administrative tenure area is whether an employee spends over 50% of his or her time on administrative duties. The test with respect to teachers attaining "tenure" is that the educator spend at least 40% of his or her duties in the relvent teacher tenure area.**

The Commissioner rejected the school district’s theory that Pearse could not have accrued tenure and seniority rights in a teacher tenure area because she is not a professional educator as defined in Part 30 of the Commissioner’s regulations, noting that 8 NYCRR §30-1.1(e) of the Commissioner’s regulations defines professional educator as follows:

Professional educator means an individual appointed or to be appointed to a full-time position on the professional staff of a school district or board of cooperative educational services, which position has been certified as educational in nature by the Commissioner to the State Civil Service Commission pursuant to the provisions of section 35-g of the Civil Service Law and in which position tenure may be acquired in accordance with the provisions of the Education Law.

Although, said the Commissioner, “§30-1.1(e) requires that the educator be appointed to a full-time position on the professional staff of the district, [it] does not require an individual to be employed solely in a full-time teaching position.”

The Commissioner also rejected the district’s claim that “an educator cannot accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously,” noting that Part 30 of the Commissioner’s regulations clearly permits a professional educator to simultaneously hold tenure and earn seniority in more than one teacher tenure area, citing 8 NYCRR §30-1.9[d].

Accordingly, the Commissioner ruled that an educator “should be able to serve in both an administrative and teacher tenure area at the same time and receive seniority credit and tenure in both tenure areas provided that the individual performs more than 50% of his or her duties in the administrative tenure area and at least 40% of his or her duties in a teacher tenure area.”

Also, noted the Commissioner “Public policy favors the protection of the tenure rights of both teachers and administrators.”

However, the Commissioner said that it was “unclear from the record” if Pearse was the most senior teacher in the foreign language tenure area on the date on she was excessed. He deemed it appropriate “to remand this matter” to school district for it to calculate Pearse’s seniority rights in the foreign language teacher tenure area and make a new determination as to whether she is entitled to be restored to a tenured position as a teacher of foreign language effective June 23, 2009, with back pay and retroactive benefits.

* Tenure by estoppel "results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of the probationary term" (see Lindsey v Board of Education of Mt. Morris Central School District, 72 AD2d 185, 186].

** Part 30 of the Commissioner’s regulations [8 NYCRR 30] provide that teachers are deemed to serve in any tenure area in which they spend at least 40% of their time. Further, the test of whether an employee should be deemed to serve in an administrative tenure area is whether an employee spends over 50% of his or her time on administrative duties.

The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16159.htm

============================================
If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/ ============================================
NYPPL

Educator terminated after being found guilty of berating and belittling less senior staff members

Educator terminated after being found guilty of berating and belittling less senior staff members
Matter of Denhoff v Mamaroneck Union Free School Dist., 2010 NY Slip Op 51742(U), decided on September 30, 2010, Supreme Court, Westchester County, Judge John P. Colangelo

Elizabeth Denhoff filed a petition pursuant to CPLR 7511* in an effort to vacate the findings and recommendations made by Hearing Officer Jay M. Siegel, Esq. The hearing officer found Denhoff guilty of 14 of 20 disciplinary charges filed against her by the District and recommended termination of her employment as a guidance teacher.

The District had alleged that Denhoff had “systematically berated and belittled less senior guidance counselors, criticized their work and threatened to negatively impact their careers” over the course of three academic years. The Hearing Officer had found that “Denhoff engaged in predominantly verbal conduct directed against fellow members of the Guidance Department that denigrated their respective intelligence and competence as teachers and obstructed their desire to work;” which he described as falling into one of four general categories:

1. Verbal criticism tending toward outright disparagement of the abilities of three fellow teachers, usually outside their presence.

2. Verbal and non-verbal criticism by eye rolling or other gestures - - that was either directed to such teachers or took place in such teachers' presence.

3. Attempts to impose "rules" upon or otherwise direct or influence the behavior of such teachers with respect to work hours, participation in extra curricular activities, and reporting matters to the school administration.

4. "Obstructing" the conduct of these teachers, generally with an eye toward inhibiting them from performing their work as guidance counselors, including certain activities that were above and beyond contractually required duties.

One portion of Judge Colangelo’s decision focused on the nature of Denhoff’s conduct, i.e.,”did her conduct amount to violations of the Education Law's proscriptions - - particularly in view of the fact that Denhoff's offensive behavior was that of a teacher without supervisory responsibilities, and was directed toward fellow teachers rather than towards a supervisor, student or parent.”

Because the hearing officer “failed to cite any specific provision of the Education Law violated by Denhoff or base his reason for the sanction imposed on a violation of any specific rule by which a tenured teacher must abide,” the court said this task “had been relegated to the arguments of the parties, and now to the judgment of the Court.”

As the school district conceded, Denhoff was not insubordinate since her actions were not directed at a supervisor, and since no physical violence or violation of the criminal law was shown. Rather, the district’s argument focuses on the general prohibition against "conduct unbecoming a teacher."

In this regard, the court noted that in Matter of Uniondale, 26 Educ. Dept. 498 501 (1987) the Commissioner of Education indicated that certain verbal conduct of a teacher however distasteful, is only deemed "unbecoming" if such conduct has a negative impact on the educational process. In Uniondale the Commissioner commented "Although the panel found that respondent expressed himself to his superiors in an antagonistic and discourteous manner, it held that such conduct does not constitute conduct unbecoming a teacher as long as [his] actions do not affect [his] ability to teach and are not disruptive."'

Denhoff argued that as her verbal assaults were not directed against a student or supervisor, but rather against her teaching colleagues, each act did not have such a significant impact on the educational process as to justify a finding that she had violated the Education Law by engaging in unbecoming conduct - - or, at the least, to merit the ultimate sanction of dismissal.

The court, however, said that Denhoff’s “atomistic approach, focusing on each instance of [her] misconduct in isolation, is at once misleading and misplaced. It is misleading because this approach ignores the cumulative detrimental effect of such behavior on the educational process. It is misplaced because the Hearing Officer and, ultimately, the Court are permitted to consider the totality of [Denhoff's] conduct and how it affected the educational setting and a teacher's ability to carry out his or her pedagogical responsibilities.”

Judge Colangelo, considering “the totality of the circumstances,” said they amply support the Hearing Officer's conclusion that Denhoff, in league with her fellow senior guidance counselor Haruko Hirose,** created a toxic and disruptive environment within the Hommocks' Guidance Department.

As to an appropriate penalty, Judge Colangelo agreed with the hearing officer and said that the school district “ has just cause to terminate [Denhoff’s] employment.” “Indeed,” said the court,” to not confirm the Hearing Officer's decision under the circumstances that obtain herein - - where the penalty of dismissal is not shocking to the conscience or to a "sense of fairness"*** - - would impermissibly substitute the Court's judgment for that of the Hearing Officer who saw, heard and evaluated the testimony of all of the witnesses, including Denhoff.”

* See §3020 - a (5) of the Education Law

** The District also brought charges against Haruko Hirose, another member of the Guidance Department, who resigned her position before any hearing was commenced.

*** The Pell Doctrine, Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51742.htm

==========================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
===========================================
NYPPL

Employer’s internal regulations are not a “well-developed body of law and regulation” for the purposes of §205-a of the General Municipal Law

Employer’s internal regulations are not a “well-developed body of law and regulation” for the purposes of §205-a of the General Municipal Law
Vosilla v City of New York, 2010 NY Slip Op 07162, decided on October 5, 2010, Appellate Division, Second Department

§205-a of the General Municipal Law, in pertinent part, provides for an additional right of action to firefighters “in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus.”

Joseph Vosilla, a New York City firefighter, filed a lawsuit seeking to recover damages for personal injuries he alleged he sustained as a result of the City’s violation of certain provisions of the New York City Fire Department All Unit Circulars, Incident Command System manual provisions, and internal rules concerning, classification and inspection of buildings, “and that such violations directly or indirectly caused the injuries he sustained in the line of duty.”

The Appellate Division, however, rejected Vosilla’s theory that the City was liable for damages in this instance, ruling that “These internal regulations … cannot serve as a predicate for liability under General Municipal Law §205-a, since they are not part of a "well-developed body of law and regulation" imposing clear legal duties or mandating the performance or nonperformance of specific acts.”

Accordingly, said the court, the City established its prima facie entitlement to judgment as a matter of law dismissing the cause of action pursuant to GML §205-a insofar as asserted against it and, in opposition, Vosilla failed to raise a triable issue of fact and thus Supreme Court properly granted that branch of the City's motion summary judgment dismissing the cause of action pursuant to GML §205-a insofar as asserted against it.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07162.htm
NYPPL