School officials were entitled to qualified immunity from former teacher’s claim of biased investigation into alleged sexual abuse of student

School officials were entitled to qualified immunity from former teacher’s claim of biased investigation into alleged sexual abuse of student
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Purvis v. Oest, ___F.3d____(7th Cir. Aug. 2, 2010), is an interesting case.

The Seventh Circuit held that three school officials who conducted an investigation into allegations that a teacher had sexually abused one of her students were entitled to qualified immunity from the former teacher’s suit that the biased nature of the investigation corrupted the subsequent criminal investigation in violation of her due process rights.

The court also ruled that the chief of police was entitled to qualified immunity from the teacher’s claim of false arrest because he had probable cause to make the arrest.

The teacher had resigned from her employment in exchange for a cash settlement. In finding that the individual defendants were entitled to qualified immunity, the court applied the two-step immunity test:

(1) whether the plaintiff showed a that the defendant had violated a constitutional right; and

(2) whether that right was clearly established at the time the violation occurred.

Mitchell H. Rubinstein

Statements made to the press about an individual that the individual finds offensive may be protected by a qualified privilege

Statements made to the press about an individual that the individual finds offensive may be protected by a qualified privilege
Liere v Scully, 2010 NY Slip Op 09227, Decided on December 14, 2010, Appellate Division, Second Department

Peter Scully, Regional Director of the State Department of Environmental Conservation told a television reporter alleging the Robert Liere was "bulldozing" his farm to create a "massive solid waste facility," as well as alleging that Liere accepted "land clearing debris" and "yard waste" without obtaining required governmental approvals, just prior to the Department issuing an administrative warrant to inspect Liere’s farm.

Liere sued, contending that he had been defamed by Scully, sued seeking to recover damages. Supreme Court dismissed Liere’s petition and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division ruled that Scully had demonstrated that he was entitled to have Liere’s lawsuit dismissed as a matter of law by presenting evidence that the challenged statements were protected by a qualified privilege.*

A qualified privilege, explained the court, applies to statements that are " fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned."

Scully had shown that he made the statements to which Liere had objected “in his official capacity as regional director of the DEC and that the television reporter to whom he made the statements, and the public in general, had corresponding interests in the statements' subject matter.”

Although the matter could have gone to trial if Liere had shown that there was a triable issue of fact as to whether Scully statements had exceeded the scope of the privilege or whether the statements were made with either spite or ill will [common law malice**] or a high degree of awareness of the statements' probable falsity [constitutional malice***], the Appellate Division ruled that Liere had failed to demonstrate that Scully was guilty of any act that would otherwise defeat his claim to a qualified privilege.

* In contrast, an "absolute privilege" protects the speaker from any and all liability based on statements alleged to be defamatory. Typically this privilege is extended in connection with some governmental function such statements made by a member of a legislative body in connection with his or her legislative duties or when uttered as sworn testimony in a judicial or legislative proceeding.

** Common requires proof of hatred or ill will.

*** See New York Times Co. v. Sullivan, 376 U.S. 254

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09227.htm

Payment for unused leave credits upon resignation or separation from employment

Payment for unused leave credits upon resignation or separation from employment
Gratto Ausable v Valley CSD. 271 AD2d 175

The Gratto case explores the obligation of the employer to pay an individual for his or her unused vacation credits upon his or her involuntary termination. The general rule set out by the Appellate Division, Third Department in dealing with claims for such payment: use it or lose it!

Ausable Valley CSD Superintendent John Gratto’s employment contract with the school district provided that Gratto was to receive 25 paid vacation days a year, subject to a maximum accumulation of 45 days of vacation credit. The contract, however, was silent with respect to making a cash payment for any unused vacation time upon the termination of Gratto’s employment.

When Gratto was involuntarily terminated from his position he claimed that he was entitled to payment for his unused vacation credits upon his separation as he had earned it. The district disagreed and refused to pay him for his unused leave credits.

The absence of a statement providing for the cash liquidation of leave credits proved to be one of a number of critical elements in the Appellate Division’s resolution of his appeal from a Supreme Court judge’s summarily dismissing his complaint.

The Appellate Division said that “[i]n the absence of a statutory or contractual basis for recovery, a public employee may not recover the monetary value of unused vacation time that has accrued as of the date of termination.”

Gratto attempted to avoid this general rule by contending that a public employee who is involuntarily terminated, is constitutionally entitled to receive the cash value of unused vacation days, citing a Fourth Department decision, Clift v City of Syracuse, 45 AD2d 596 in support of his theory.

In Clift, the Appellate Division, Fourth Department. said that if the employer discharges an employee without having either given him the opportunity to use the vacation he has earned, or in the alternative, compensating him with its monetary value, it transgresses the due process requirements of both the New York State and United States Constitutions and it should not be permitted to do so.

The Third Department, however, decided that Clift has never been interpreted as meaning that a public employee who is involuntarily discharged is automatically entitled to a cash payment for his or her unused vacation. Rather, it viewed the holding as applying only where there are circumstances requiring special considerations.*

The Appellate Division rejected Gratto’s claim that his work responsibilities prevented him from using all of his leave credits for vacations. What was missing in Gratto’s situation? Evidence that a superior or supervisor induced him to forego any vacation time during that year for any reason or that he refrained from using vacation time the entire year because of noncontractual duties.

The Appellate Division affirmed the lower court’s ruling, holding that under the circumstances, Gratto was not entitled to the cash value of his 45 days of unused vacation when he was involuntarily separated.

This is similar to the general rule with respect to State workers subject to the State Civil Service Commission’s Attendance Rules for the Classified Service, 4 NYCRR 30.1. Section 30.1 states that an employee who is removed from State service as a result of disciplinary action, or who resigns after charges of incompetency or misconduct have been served, is not entitled to compensation for vacation credits.

What about a voluntary separation, i.e., the State employee is not involved in a disciplinary action when he or she resigns or retires? Section 30.1 provides that an appointing authority may require, as a condition for such payment that it be given at least two weeks notice prior to the last day of work.

* The special circumstances in Clift: the employee contended that he agreed to defer using his vacation credits based on promises made by his superior and was then involuntarily dismissed. Similarly in May v Ballston Spa CSD, 170 AD2D 920, the Third Department ruled in favor of the employee upon its finding that the employee was induced to forego vacation when his superiors assured him that he would be paid for his unused leave notwithstanding his involuntary separation as a result of a layoff.

Qualifying for reinstatement

Qualifying for reinstatement
Levy v Freeport UFSD, 275 A.D.2d 459, Motion for leave to appeal denied, 95 N.Y.2d 769

Carol L. Levy asked the Freeport Union Free School District to reinstate her to the position of Coordinator of English Language Arts/Reading.

Levy contended that she was qualified for reinstatement to the position because she was certified in reading. Conceding that Levy was certified in reading, the district declined to reinstate her to as the Coordinator because she was not certified in English.

Levy sued, seeking a court order compelling the district to reinstate her to the position.

The Appellate Division set out the general rule for reinstatement as follows:

Although a teacher seeking reinstatement need not be tenured in the area of the vacant position, the vacant position must be similar to the teacher’s former position and the teacher must be legally qualified to teach in the position sought.

Here, said the court, the record is clear: Levy is certified to teach reading, but not to teach English.



Under the circumstances, the court concluded, Levy did not have the appropriate certification for the position of English Language Arts/Reading Coordinator and dismissed her appeal.

Political activities by State officers and employees
NYS Ethics Commission

Periodically the New York State Ethics Commission reminds State workers of the State’s policy regarding political activities. Typically the Commission notes that:

1. State personnel may only engage in campaign activities on their own time;

2. State resources, including telephones, office supplies, photocopying and FAX machines and secretarial support may not be used for campaign purposes.

3. State personnel may not use their official position to solicit funds or coerce or influence co-workers for political purposes.

4. Campaign materials may not indicate or imply any State support or opposition to the candidate except that a candidate may refer to his or her State position in a campaign biography.

Section 107 of the Civil Service Law sets out a number of prohibitions against certain political activities by employees of the State and its political subdivision.

In addition, the political activities of State employees whose employment is Federally financed, in whole or in part, may be further restricted by the federal Hatch Act [53 Stat. 1147].

Essentially, the Hatch Act bars State and local officers and employees from being candidates for public office in a partisan election, using official authority or influence to interfere with or affect the results of an election or nomination directly or indirectly coerce contributions from subordinates in support of a political party or candidate.

Although a public officer or employee may lawfully seek the nomination for such public office, he or she must resign from his or her public employment upon accepting the nomination.