Each school to have a principal of its own

Each school to have a principal of its own

Opinions of the Commissioner of Education 9994.

A school district proposal to have two elementary schools share a single principal who would divide his time between the two schools would not comply with the mandate of the Regulations of the Commissioner of Education (Section 100.3) which requires that each building of facility be under the supervision of a certified principal. 

Strict compliance with evaluation procedures excused in view of evidence attesting to the terminated probationary teacher’s poor performance in class

Strict compliance with evaluation procedures excused in view of evidence attesting to the terminated probationary teacher’s poor performance in class

Matter of Brown v Board of Educ. of the City School Dist. of the City of New York, 2011 NY Slip Op 07908, Appellate Division, First Department

A probationary teacher served with the New York City School System for three years and was terminated at the end of his third year. Consistent with a review procedure set forth in the collective bargaining agreement between the Board of Education and the teacher’s employee organization, the teacher appealed his temination to the Department of Education's Office of Appeal and Review [OAR].

The teacher’s principal and assistant principal were called as witnesses by the Department of Education at the OAR hearing during which they testified about the teacher’s poor performance in class management and engagement of students. Also introduced in the course of the hearing was the teacher’s Annual Professional Performance Review and Report on Probationary Service of Pedagogical Employee [APPR] that indicated a "U-rating."

In addition to cross-examining the DOE's witnesses, the teacher pointed out that the APPR report was deficient in several respects, namely that no documentation was annexed to the APPR as required by the Chancellor's rating handbook and that sections of the report were left blank. Ultimately the teacher was denied his Certification of Completion of Probation, whereupon he initiated an Article 78 proceeding challenging the determination to terminate him.

Supreme Court found that the Board of Education’s determination that resulted in the teacher’s unsatisfactory performance rating and his being discontinued from service was in violation of lawful procedure in that “the APPR report was not in strict compliance with the procedures set forth in the Rating Handbook promulgated by the Chancellor.”

The Appellate Division, however, unanimously reversed Supreme Court’s ruling “on the law” and reinstated the Board of Education’s decision to terminate the teacher.

The Appellate Division said that the teacher had failed to demonstrate that his termination as a probationary employee was arbitrary and capricious or was made in bad faith, noting that the teacher did not dispute that the evidence adduced at the hearing from the principal and assistant principal. That evidence, said the court,  provided "ample ground for his discontinuance."

The court said that the principal and the assistant principal described teacher's poor performance in class management and engagement of students, which descriptions were based on their personal classroom observations. Under these circumstances, said the Appellate Division, any deficiencies in the APPR report "do not render the determination to discontinue his employment arbitrary and capricious" as the hearing testimony provided ample grounds for terminating the teacher.

Reinstatement following layoff focuses on tenure rights

Reinstatement following layoff focuses on tenure rights

Chauvel v. Nyquist, 55 AD2 76, affd., 43 NY2 48)

Does “greater system-wide service” control situations involving layoff of teachers, or is it seniority in corresponding or similar positions that determines which person is to be offered an open teaching position first?

Where the performance of duties of the open position is unquestionably “similar” to those of the abolished positions, the teacher having the greater seniority in the performance area, not in the employing school district itself, is to receive the appointment.

Standards for such re-employment are more narrow than those dealing with layoff (Ward v. Nyquist, 43 NY2d 57) so as to prevent erosion of the tenure rights of the incumbents of abolished positions and means that the duties required to be performed in the vacant position must be similar to the duties performed by the person in his previous position before it was abolished. A test was stated in Matter of Elkins, 14 Ed Dept Repts 193, to the effect that if more than one-half of the functions to be performed by the incumbent of the new position are those which he performed in his old position, the positions are similar.

Tenured employee protected from political firing

Tenured employee protected from political firing

Branti v. Finkel, U.S. Supreme Court, 445 U.S. 507

The United States Supreme Court upheld a decision of the District Court, Southern District of New York, which ruled that two public defenders could not be removed from their positions because of their political affiliation. Both served in exempt class positions on a part-time basis. 

It was reported that both were Republicans, one having been appointed by a Republican while the other had been appointed earlier by a Democrat. Rejecting the argument that a necessary confidential relationship existed between the Public Defender and his assistants, and that such a relationship could not be had if the Public Defender was of a different political party than his assistants, the Court stated that the crucial point is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for effective performance. 

The decision in this case suggests that the Court’s views with respect to a political test for appointment might be the same as its views concerning removal from the public service. By indicating that performance was the significant consideration, the Court may well have limited the selection to the public service on the basis of merit and fitness in all but the rarest of situations.

Creating new positions

Creating new positions

Civil Service Employees Association v. Town of Harrison, 48 NY2d 66

There is only one way to create a new position, the way the controlling law requires.

The statutory imperatives of Section 22 of the Civil Service Law reflects such a strong public policy with respect to establishing new positions that it may not be ignored nor may it be circumvented under color of an “alternative” to the provisions of Section 22 contained in a collective bargaining agreement negotiated pursuant to the Taylor Law (Section 200 et seq, Civil Service Law).

Failing to comply with the mandates of Civil Service Law §22 is fatal and no new position can come into being unless it is created as prescribed by the section.

While the Court in its decision did not address the “status” of the incumbent of the “new position”, it would appear that the “status” of the individual is not dependent on the “existence” of any position and, presumably, other relevant provisions of the Civil Service Law (i.e., Section 80, Layoff) would control if the incumbent of the “nonexistent new position” could no longer serve as a “position” for payroll purposes.