Reassigning a teacher to non-teaching duties

Reassigning a teacher to non-teaching duties

Taylor v Hammondsport CSD, 267 AD2d 987

May a school district assign a teacher to perform non-teaching duties against his or her will? This was the issue raised by David C. Taylor, a tenured high school science teacher.

The Hammondsport Central School District had assigned Taylor to perform nonteaching duties after he was found guilty of a number of specifications set out in disciplinary charges filed against him pursuant to Section 3020-a of the Education Law.

The hearing officer found Taylor guilty of portions of two charges filed against him. The penalty imposed: a $1,000 fine. However, the hearing officer in setting the penalty to be imposed did not provide for any remedial action.*

Taylor objected to his reassignment to non-teaching duties, contending that the assignment to such duties constitutes the imposition of an additional penalty or remedial action in violation of Education Law Section 3020-a. He challenged his reassignment, demanding that he be reinstated to his former teaching assignment and compensated for emotional distress he has endured as the result of district’s assigning him to nonteaching duties.

A State Supreme Court judge dismissed Taylor’s petition on the ground that he did not have any “clear legal right to the relief sought against [district], and therefore [an order in the nature of] mandamus* was not available to him as a remedy.”

The Appellate Division agreed with the lower court, pointing out that Section 3020-a “neither limits the authority of [the district] to assign [Taylor] to nonteaching duties nor requires [the district] to restore [Taylor] to his teaching duties following the completion of disciplinary procedures conducted pursuant to the statute.”

Addressing a procedural issue, the Appellate Division ruled that Taylor was required to give the district a notice of claim as required by Section 3813(1) of the Education Law prior to his commencing litigation.

The court said that in this instance complying with Section 3813 (1) was a statutory condition precedent to bringing an action or proceeding against the district because Taylor was attempting to vindicate his private rights. Accordingly, he was not exempt from the notice of claim requirement set out in the Education Law as might be the case were he attempting to vindicate a public interest in contrast to a personal one.

* Education Law Section 3020-a.4, in pertinent part, provides: …. In addition to or in lieu of the aforementioned penalties, the hearing officer, where he or she deems appropriate, may impose upon the employee remedial action including but not limited to leaves of absence with or without pay, continuing education and/or study, a requirement that the employee seek counseling or medical treatment or that the employee engage in any other remedial or combination of remedial actions.

** Latin for "we order." Mandamus is one of a number of ancient “writs.” In modern legal practice it describes a court order directing a governmental entity [or official] to perform an act required by law when it has neglected or refused to do.
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Disciplinary penalty set out in a consent award agreed to in the course of disciplinary arbitration not within the power of a subsequent arbitrator to modify

Disciplinary penalty set out in a consent award agreed to in the course of disciplinary arbitration not within the power of a subsequent arbitrator to modify
In the Matter of Saderia Burke v Nassau Health Care Corporation, 2011 NY Slip Op 02887, Appellate Division, Second Department

This decision addressed two proceedings involving Saderia Burke’s arbitration award. Burke, a member of the Civil Service Employees Association, Inc.

In the course of a disciplinary proceeding Burke and the Nassau Health Care Corporation entered into a "Consent Award" that was "so-ordered" by the arbitrator. The Award provided that Burke would be terminated if she committed certain disciplinary infractions within an agreed period.

Subsequently Health Care served a “notice of termination” on Burke after she allegedly committed “certain infractions.” CSEA filed another grievance and demand for arbitration.

After this second hearing, the arbitrator found that Burke, indeed, had committed infractions that would result in termination in accordance with the Consent Award. The arbitrator, however, issued an award imposing a penalty of suspension rather than termination.

Health Care filed an Article 75 petition seeking to vacate the award while CSEA filed an Article 75 petition seeking to confirm the award.

Supreme Court denied Health Care’s petition, granting so much of the arbitration award as imposed a penalty of suspension without pay on Burke.

The Appellate Division reversed the Supreme Court’s decision, and vacated the penalty of suspension without pay awarded by the arbitrator, explaining that courts may vacate an arbitration award if the award "violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power," citing Matter of Falzone, 15 NY3d 530.

An arbitrator, said the court, may properly modify a prior arbitration award only to:

1. Correct a miscalculation or mistaken description in the prior award:

2. To correct so much of the prior award as was rendered on a matter not submitted to the arbitrator and which can be corrected without affecting the merits of the decision; or

3. To correct a prior award that is "imperfect in a matter of form."

In this instance the Appellate Division found that the arbitrator had exceeded his authority by determining an issue “not submitted to him.” Further, he ruled on an issue had been resolved via a “consent award” in a prior arbitration involving Burke, the penalty to be imposed for any other “certain” disciplinary infraction.

In view of this, ruled the Appellate Division, Supreme Court should have modified so much of the arbitrator's award as imposed a penalty of suspension without pay and reinstated the penalty of termination.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02887.htm

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Termination of employment recommended as the penalty for failure to follow proper procedure in safeguarding the property of an agency client

Termination of employment recommended as the penalty for failure to follow proper procedure in safeguarding the property of an agency client

NYC Human Resources v Townsend, OATH Index #1325/11

A NYC Human Resources Administration client was arrested and Marvin Townsend, a supervising special officer, was assigned to process the arrest.

The client had a jacket with a Portable Sony Playstation (PSP) and wallet, in the pocket.

Townsend told the client he would not voucher the property and that she could get it from his office on the next day.

When the client retrieved the jacket, the PSP and wallet were missing. The PSP was subsequently returned to the client but the wallet was not.

ALJ Alessandra Zorgniotti found that the sergeant failed to follow vouchering procedures and attempted to cover up his actions and deceive the client. The Administrative Law Judge recommended that Townsend be terminated from his position.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1325.pdf
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Temporary appointees not entitled to a pretermination due process hearing

Temporary appointees not entitled to a pretermination due process hearing

Sanni v NYS Office of Mental Health, USDC, EDNY, 2/15/2000

Frequently a public employee holding a temporary appointment will challenge his or her termination from the position claiming that he or she is entitled to a pretermination due process hearing. This was one of the issues considered by Federal District Court Judge Gleeson in the course of his deciding the Sanni case.

Thomas Sanni, then employed in a grade 27 project director position at Kings Park Psychiatric Center, was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. Simultaneously, he was reinstated to his permanent grade 18 position and transferred to Queens Children Psychiatric Center.

Ultimately, arbitrator Howard A. Rubenstein found Sanni guilty of 11 of the 14 charges filed against him. Among the charges for which Sanni was found guilty were the following:

1. Improperly participating in and supporting the decision to employ the minister of [Sanni’s] church to exorcise a patient possessed by spirits;

2. Transporting a patient in his car when he did not hold a valid driver’s license;

3. Claiming overtime for work he did not perform;

4. Having his personal automobile repaired by Kingsboro and billing the facility for personal items he shipped overseas via international Federal Express; and

5. Lying under oath in the course of being interviewed concerning the charges.

The department accepted Rubenstein’s findings and his recommendation that Sanni be terminated. Sanni sued, contending that the Office of Mental Health’s disciplinary action against him (1) violated his civil rights, (2) constituted retaliation for his filing a Title VII complaint against it and (3) it terminated him from the grade 27 position in violation of Section 75.

As to Sanni’s due process claims, Judge Gleeson pointed out that a public employee who has a property interest or right in his or her position is entitled to a pretermination hearing before he or she may be removed from the position. By logical extension, said the court, an employee covered by Section 75 has a property interest in his or her civil service grade since one of the penalties that may be imposed under Section 75 is demotion in grade and title.

The problem with Sanni’s argument, however, was that temporary employees in New York have no property interest in their jobs. Accordingly, Judge Gleeson, citing the Appellate Division’s ruling in Jones v Westchester County, 644 NY2d 640, granted the State’s motion to summarily dismiss this branch of Sanni’s complaint.

Sanni’s civil rights and retaliation claims based on his demotion and transfer to another department facility survived, however.

This suggests that in such situations the State may attempt to have the case dismissed on the grounds that it immune from suit in federal court for alleged violations of Title VII in view of the rulings by the Supreme Court of the United States in Kimel v Board of Regents, 528 U.S. 62 and Alden v Maine, 527 U.S. 706, cases involving employees suing their state employer in federal court for alleged violations of, respectively, the Age Discrimination in Employment Act and the Fair Labor Standards Act.

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Civil Service Commission's refusal to extend an eligible list challenged

Civil Service Commission's refusal to extend an eligible list challenged

Matter of Kapetanos v City of New York,  37 AD3d 279

Christopher Kapetanos challenged the New York City Civil Service Commission’s decision not to extend the duration of a 2000 eligible list for the civil service position of Associate Fraud Investigator. The decision notes that Kapetanos did not plead, even in conclusory fashion, that the restriction triggering the Commission’s ability to exercise its Civil Service Law Section 56.1 discretion to extend the eligible list was attributable to a financial emergency.

Section 56.1 addresses extending eligible lists in situations involving restriction against the filling of vacancies. It provides that:

The duration of an eligible list shall be fixed at not less than one nor more than four years; provided that, except for lists promulgated for police officer positions in jurisdictions other than the city of New York, in the event that a restriction against the filling of vacancies exists in any jurisdiction, the state civil service department or municipal commission having jurisdiction shall, in the discretion of the department or commission, extend the duration of any eligible list for a period equal to the length of such restriction against the filling of vacancies.

Restriction against the filling of vacancies shall mean any policy, whether by executive order or otherwise, which, because of a financial emergency, prevents or limits the filling of vacancies in a title for which a list has been promulgated. An eligible list that has been in existence for one year or more shall terminate upon the establishment of an appropriate new list, unless otherwise prescribed by the state civil service department or municipal commission having jurisdiction.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2007/02/extension-of-eligible-list.html

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