“New New York Education Reform Commission” established by Governor Cuomo

“New New York Education Reform Commission” established by Governor Cuomo

Governor Andrew M. Cuomo has established the New New York Education Reform Commission, bringing together nationally recognized education, community, and business leaders to recommend reforms to the state's education system in order to improve performance in the classroom so that all of New York's students are fully prepared for their futures. Richard (Dick) Parsons, Retired Chairman, Citigroup will serve as the Chair of the New NY Education Reform Commission

The Executive Order creating the Commission includes the following tasks:

1. Find ways to improve teacher recruitment and performance, including the teacher evaluation system;

2. Examine factors contributing to teacher recruitment and performance including: incentives to hire and retain high-quality teachers; improvements in the teacher evaluation system to ensure New York is implementing one of the strongest evaluation systems in the country;

3. Use teacher evaluations for decisions regarding promotion, hiring and termination as required in the teacher evaluation law; and teacher preparation, certification and education programs to ensure that teachers are properly trained to best educate our Students;

4. Improve student achievement;

5. Examine education funding, distribution and costs;

6. Increase parent and family engagement in education;

7. Examine state and local policies to increase parent and family engagement;

8. Examine the problem of high-need and low-wealth school communities;

9. Find the best use of technology in the classroom;

10. Identify the strategies for making the best use of technology in the classroom;

11. Examine New York's education system to ensure it meets the needs of students while respecting the taxpayer;

12. Examine potential strategies to reorganize the state's education system including district

consolidation and/or shared services; and comparing models from other states to achieve efficiencies and improved education outcomes.

Membership of the Commission includes:

Richard (Dick) Parsons, Retired Chairman, Citigroup, Chair of the New NY Education Reform Commission

Randi Weingarten, President, American Federation of Teachers, AFL-CIO

Geoffrey Canada, Founder & CEO, Harlem Children's Zone

Irma Zardoya, President & CEO, NYC Leadership Academy

Elizabeth Dickey, President, Bank Street College of Education

Mary Anne Schmitt-Carey, President, Say Yes to Education

Lisa Belzberg, Founder & Chair Emeritus, PENCIL

Michael Rebell, Co-Founder & Executive Director, Campaign for Educational Equity

Karen Hawley Miles, President & Executive Director, Education Resource Strategies

José Luis Rodríguez, Founder & CEO, Hispanic Information and Telecommunications Network, Inc.

Sara Mead, Associate Partner, Bellwether Education Partners

Eduardo Martí, Vice Chancellor of Community Colleges, CUNY

Thomas Kane, Professor of Education & Economics, Harvard Graduate School of Education

Jean Desravines,CEO, New Leaders

Michael Horn, Executive Director & Co-Founder, InnoSight Institute

Chancellor Nancy Zimpher, Chancellor, SUNY

Chancellor Matthew Goldstein, Chancellor, CUNY

John B. King, Jr., Commissioner, New York State Education Department

Senator John Flanagan, Chair, Senate Education Committee

Assembly Member Cathy Nolan, Chair, Assembly Education Committee

The Commission expected to submit preliminary recommendations to the Governor by December 1, 2012.

The Deputy Secretary for Education, the Assistant Deputy Secretary for Education, and the Assistant Deputy Secretary for Higher Education to the Governor.will serve as staff to the Commission.

The text of the Governor’s announcement is posted on the Internet at:

http://d2srrmjar534jf.cloudfront.net/6/c0/9/3828/press_rls.pdf

Filing an administrative appeal does not extend or toll the statute of limitations for filing a timely Article 78 petition

Filing an administrative appeal does not extend or toll the statute of limitations for filing a timely Article 78 petition

A former teacher asked Supreme Court to annul the determination of the New York City Department of Education (DOE) that terminated her employment.

The teacher had earlier allowed her teaching license to lapse and she was removed from payroll. She was subsequently advised to “secure another teaching position” and was to serve as a probationary employee.

Appointed as a probationary employee, she was found guilty of misconduct by the Special Commissioner of Investigation for the New York City School District and notified that her services as a probationary employee would be terminated and placed on the “Ineligible/lnquiry list due to inappropriate conduct.”

In response to her administrative appeal the teacher was ultimately advised of the decision to reaffirm the underlying decision to terminate her employment and the termination of her DOE license.

Supreme Court dismissed the teacher’s petition because she failed to file a timely notice of claim in accordance with Education Law §3813(1).

Although the teacher conceded that she had not filed the Notice of Claim within three

months of the termination of her probationary employment, she contented that it was unnecessary for her to do so. Justice Mills disagreed, holding that she was required to file the notice of claim within three months of her termination.

Turning to another procedural matter, Supreme Court held that the teacher’s Article 78 challenge to the termination of her probationary employment is also time-barred, having been filed some 18 months after she was terminated from her probationary appointment.

Pointing out that an Article 78 proceeding must be commenced “within four months after the determination to be reviewed becomes final and binding on the petitioner,” the court said that “An agency determination becomes final and binding when the aggrieved party received actual notice of  the determination” and is neither extended nor tolled by the individual’s seeking administrative relief.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2012/2012_31102.pdf

Individuals employed by a private entity under contract to operate a charter school are “public employees” for the purposes of the Taylor Law

Individuals employed by a private entity under contract to operate a charter school are “public employees” for the purposes of the Taylor Law

Buffalo United Charter School ("BUCS") and Brooklyn Excelsior Charter School ("BECS") were formed under Education Law Article 56, (the "Charter Schools Act", together with National Heritage Academies, Inc. (NHA) challenged PERB’s rulings regarding its jurisdiction over the employees providing services to these charter schools.

The Council of School of Supervisors and Administrators, Local 1, AFSA ("CSA") had petitioned PERB for certification as the collective bargaining representative for a unit of unrepresented assistant principals at BECS, while NYSUT/AFT, AFL-CIO (NYSUT) had petitioned PERB for certification as the collective bargaining representative of a unit of unrepresented instruction employees at BUCS.

In response to CSA’s a petition seeking to be certified as the collective bargaining representative of all assistant principals working for BECS, BECS and NHA filed an application with PERB seeking to have the assistant principals designated as "managerial" or "confidential" employees as those terms are defined in Civil Service Law §201(7)(a).

BUCS and BECS then advanced the theory that that PERB was prevented by its own joint public-private employment doctrine* from asserting jurisdiction over the cases and the employees at issue in view of the fact that both entities had contracts with NHA, a private, for-profit corporation, to operate the schools formed by BUCS and BECS.

These agreements, they claimed, provided that NHA was responsible for employing the staffs at BUCS and BECS. In addition, both also claim that PERB lacks jurisdiction because with respect to the employees of NHA the NLRA preempted the Taylor Law.**

PERB, on the other hand, argued that it had properly concluded that the Charter Schools Act "explicitly and implicitly makes (the Taylor Law) applicable to every New York charter school" and that PERB's "joint public-private employer relationship [doctrine] … has been superceded" by the Charter Schools Act.

According to PERB, its joint public-private employment doctrine was inconsistent with the Charter Schools Act and therefore explicitly superceded by §2854(1)(a) of the Education Law. Further, PERB contended that Education Law §2854(3)(a) provides that charter schools are public schools for purposes of the Act and that because the Legislature made no provision for an exception to this mandate, there is no authority permitting application of the joint public-private employment doctrine in this instance.

PERB also asserted that its conclusion that the Charter Schools Act does not authorize the designation of "managerial" and "confidential" employees is a proper legal conclusion and urged the Court to apply a deferential standard of review to PERB's conclusion in this regard.***

Finally, PERB argued that there is no unconstitutional impairment of the Management Agreements between NHA and its charter schools because even with PERB exercising jurisdiction over the charter school employees, NHA's role under the agreements was not materially diminished or impaired.

Justice Curran said that “The critical issue in this proceeding is whether the Charter Schools Act precludes PERB from following its own jurisprudence in applying the joint public-private employment doctrine.”

Concluding that “it is impossible to construe the joint public-private employment doctrine together with application of the Taylor Law via the provisions of the Charter Schools Act,” Justice Curran ruled that “the joint public-private employment doctrine is inconsistent with and contrary to the Charter Schools Act and therefore inapplicable to the petitioners in this action.

As to the question of “preemption” by NLRB, the court ruled that “given the unsettled federal law on this issue and the well researched analysis by PERB” it could not conclude as a matter of law that PERB's decision was arbitrary or clearly contrary to the law. Accordingly, Justice Curran determined that PERB's decision on the NLRB jurisdictional issue should not be annulled.

Turning to PERB’s decision that the specific provision of the Taylor Law authorizing a public employer to designate "managerial" or "confidential" employees the court concluded that “In applying the Taylor Law to charter schools, the Legislature did not employ any language precluding the designation of ‘managerial’ or ‘confidential’ employees.”

Accordingly, Justice Curran ruled that PERB's interpretation of Education Law §2854(3)(a) to mean that all charter schools' employees are public employees and therefore not "managerial" or "confidential," except for its chief executive officer, was overbroad and not supported by the language and structure of the Charter Schools Act.

The court then dismissed the petition filed by BECS. BECS and NHA except that with respect to PERB's ruling holding that assistant principals at BECS are neither "managerial" nor "confidential" employees. As to this determination by PERB the court annulled PERB’s decision and reinstated PERB’s Administrative Law Judge’s ruling on this point.

* PERB's joint public-private employment doctrine derives from New York Public Library v PERB (37 NY2d 752 [1975] where the Court of Appeals held: "[t]he Taylor Law applies only to employment which is unequivocally or substantially public.” In situations where the employment relationship involves joint public and private employers, PERB has declined jurisdiction on the premise that it has no jurisdiction unless each of the joint employers is itself a public employer.

** BUCS and BECS also argued that PERB erroneously found that the Charter Schools Act prevents the designation of the assistant principals at issue as "managerial" or "confidential." The assistant principals, according to petitioners, are members of the executive team at these charter schools and therefore PERB wrongly denied their "managerial" or "confidential" status.

*** PERB had earlier reversed its ALJ’s designating such individuals “managerial” or “confidential.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_22113.htm

Disciplinary action for off-duty misconduct vacated as unrelated to the employee’s ability to satisfactorily perform the duties of the position

Disciplinary action for off-duty misconduct vacated as unrelated to the employee’s ability to satisfactorily perform the duties of the position

A town building inspector cited a building owned by a Town of Huntington employee for “numerous violations” of the Town of Huntington’s Town Code. As a result the employee was served with a notice of discipline and later "suspended from his position."

The employee's union filed a grievance protesting the suspension on the employee’s behalf and ultimately the matter was submitted to arbitration. 

The arbitrator made an award finding that the Town had just cause for suspending the employee. Supreme Court, however, vacated the award after holding that it was irrational and, therefore, the arbitrator exceeded her authority.

The town appealed but the Appellate Division affirmed the lower court’s ruling. Noting that a court may vacate an arbitrator's award only on the grounds stated in CPLR §7511(b), the Appellate Division said that the only ground asserted by the union was that the arbitrator "exceeded [her] power."

Such an excess of power occurs only where the arbitrator's award (1) violates a strong public policy, (2) is irrational, or (3) clearly exceeds a specifically enumerated limitation on the arbitrator's power. In this instance the union argued that the award was irrational because the individual’s employment by the Town was “completely unrelated to the off-duty misconduct of which he [was] accused.”

Observing that if an arbitrator's award is completely irrational, "it may be said that [s]he exceeded [her] power," this basis for the objection requires a showing that there was "no proof whatever to justify the award."

The Appellate Division held that although the charges against the employee flowing from his ownership of a building situated in the town, if proven, “are substantial and directly affect the safety of the public,” they did not relate to his character, neglect of duty, or fitness to properly discharge the duties of his position. As there was no proof in the record to justify the town suspending the employee, it ruled that Supreme Court had properly vacated the arbitration award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2008/2008_05702.htm

Lack of veracity warrants employee’s termination

Lack of veracity warrants employee’s termination

The Appellate Division affirmed Supreme Court’s denial of a petition seeking to vacate a post-hearing arbitration award.

The disciplinary hearing officer found that the employee was guilty of all of the specified charges and that the employer “had just cause for terminating her from her position as a parole officer.”

The Appellate Division, noting that the former employee had failed to establish that the arbitration award violated public policy, was irrational, or was in violation of any of the grounds enumerated in CPLR 7511(b)(1), said that the hearing record “amply supports the arbitrator's finding that [the individual] had violated the DOP's Code of Conduct by making false accusations of stalking, which resulted in her arrest.”

Finding that there was no basis for disturbing the arbitrator's rejection of former employee’s account of events in view of the testimony of an investigating detective that at the time of the alleged incident, the purported stalker was not even in the former employee’s vicinity, the Appellate Division concluded that “in light of petitioner's responsibilities as a parole officer, which depend in large part upon her veracity, her misconduct warranted the penalty of termination.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03281.htm