A provision in a town code that is intended to supercede a statutory provision must comply with the statutory method set by law to accomplish that end

A provision in a town code that is intended to supercede a statutory provision must comply with the statutory method set by law to accomplish that end
Matter of Guzdek v Mohan, 56 AD3d 1206

The Amherst Town Board adopted a resolution providing for the appointment of three officers to fill vacancies in the Town’s Police Department.

When Satish Mohan, the Town Supervisor, declined to comply with the Board’s action, Edward W. Guzdek, Jr., the President of the Amherst Police Club, sued in an effort to obtain a court order directing Mohan to fill the vacancies.

Mohan argued that, pursuant to Section 4-10 of the Town of Amherst’s Code, he had the authority to appoint officers to the Town Police Department.

The Supreme Court disagreed, holding that the Code was inconsistent with Town Law §150. The court said that Town Law §150 provides that the appointment of police officers "is a legislative function within the exclusive jurisdiction of the town board," citing a 1980 opinion of the Attorney General [1980 Informal Opinion 249].

The Appellate Division affirmed the Supreme Court’s ruling, holding that although the Amherst Town Board may delegate its authority to appoint police officers to the Town Supervisor by designating the Supervisor to serve as police commissioner as authorized by Town Law §150.2, it had not done so. Nor, said the court, does Section 4-10 of the Code effectively supersede the provisions of Town Law §150 with respect to the Town Board's authority to make appointments to the Town Police Department.

Section 150.1 of the Town Law provides, in pertinent part that “The town board of any town may establish a police department and appoint a chief of police and such officers and patrolmen as may be needed and fix their compensation.”

The Appellate Division concluded that Section 4-10 did not "substantial[ly] adhere to the statutory methods to evidence a legislative intent to … supersede those provisions of [Town Law §150] sought to be … superseded” and dismissed Mohan’s appeal.

On this point, Section 150.2, in pertinent part, provides that “The town board may also by resolution designate the supervisor to serve as police commissioner, and when so designated, such supervisor shall have all the powers of and perform the duties of such board of police commissioners.” In this instance the court, in effect, ruled that that no such resolution had been adopted and that Section 4-10 of the Town Code was not sufficient to demonstrate such a legislative intent.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08875.htm

A public school district is not an "education corporation or association" within the meaning of the State’s Human Rights Law §296(4)

A public school district is not an “education corporation or association” within the meaning of the State’s Human Rights Law §296(4)

North Syracuse Cent. School Dist. v New York State Div. of Human Rights, 2012 NY Slip Op 04668, Court of Appeals

Is a public school district an "education corporation or association" within the meaning of  Executive Law §296(4)? If it is an “education corporation or association,” then the New York State Division of Human Rights (SDHR) has jurisdiction to investigate complaints filed against public school districts under that provision. Otherwise it does not. The Court of Appeals decided “not.”

The case arose when a number of public school students filed complaints with the SDHR claiming that their respective school districts engaged in an "unlawful discriminatory practice" barred by §296(4) of the Executive Law, the "Human Rights Law," by permitting their harassment on the basis of race and/or disability.

The school districts involved filed Article 78 petitions seeking a writ of prohibition* barring the SDHR from investigating the complaints on the ground that a public school district is not an "education corporation or association" as contemplated by Executive Law §296(4).**

The Appellate Division concluded that as a school district is a "municipal corporation" and therefore a "public corporation" under the General Construction Law, it could not be an "education corporation" within the meaning of Executive Law §296(4)]. However, the Court of Appeals, noting that this “approach is a legitimate one,” decided that there was some problem in SDHR's relying on the General Construction Law because the provision at issue in the Executive Law was enacted 15 years prior to General Construction Law §§65 and 66.

The Court, however, said that it did not need to address whether the General Construction Law is applicable here as there was an independent basis, supported by legislative history of Tax Law §4(6), for its conclusion that a public school district is not an "education corporation or association."

The Court of Appeals said that the legislative history surrounding the enactment of Tax Law §4(6), in concert with the circumstances under which the Legislature transferred the term "education corporation or association" from Tax Law §4(6) to Executive Law §296(4), “bespeaks the Legislature's intention that the term was to have the same meaning in the Executive Law as it did in former Tax Law §4(6).” Moreover, said the court, the use of the phrase "non-sectarian" was plainly included in Executive Law  296(4) to carve out an exception for parochial schools, while reserving for the SDHR the jurisdiction to investigate §296(4) complaints against private, non-sectarian education corporations or associations.

The Court then noted that “Public school districts are different from private, non-sectarian institutions and fall outside the purview of the SDHR's jurisdiction relative to §296(4) claims … [as] a public school district receives tax-exempt status by virtue of the fact that it is public, so there would never be any need for it to 'hold itself out to the public to be non-sectarian' as, say, a private school."

The fact that the SDHR did not have jurisdiction to consider the students’ complaints did not mean that they did not have a forum in which to seek relief. The Court said that “In addition to potential remedies under federal law, public school students may file a complaint with the Commissioner of Education (see Education Law §310).”

Further, said the court, in 2010, the Legislature enacted the "Dignity for All Students Act," establishing article 2 of the Education Law, designed "to afford all [public school] students an environment free of any harassment that substantially interferes with their education, regardless of the basis of the harassment, and free of discrimination based on actual or perceived race, color, weight, national origin, ethnic group, religion, disability, sexual orientation, gender, or sex," commenting that while SDHR lauded this legislation by noting that it "addresses a myriad of harassment and discrimination issues that arise within a school context and its goals comport with the goals of the [Human Rights Law]," noticeably absent from SDHR’s correspondence was any indication that the Division had previously handled similar claims of that nature arising in public schools.***

The Court’s conclusion: Because a public school district is not an "education corporation or association" under Executive Law §296(4), the SDHR lacked jurisdiction to investigate the complaints filed by the students in these appeals.

* A writ of prohibition, one of the ancient writs under English Common Law, is an order issued by a higher tribunal barring a lower tribunal prohibiting the litigation from going forward because the lower tribunal lacks jurisdiction to consider the matter before it.

**Executive Law § 296 (4) provides, in relevant part, that "[i]t shall be an unlawful discriminatory practice for an education corporation or association which holds itself out to the public to be non-sectarian and exempt from taxation pursuant to … [RPTL Article 4] … to permit the harassment of any student or applicant, by reason of his race … [or] disability …."

***The Court of Appeals referred to a letter from New York State Div. of Human Rights, dated July 22, 2010, and included in the Bill Jacket for Chapter 482 of the Laws of 2010, in support of this statement.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04668.htm

A public officer must show that alleged false statements concerning him or her were made with actual malice to recover damages for defamation

A public officer must show that alleged false statements concerning him or her were made with actual malice to recover damages for defamation
Watson v Jamestown, 56 AD3d 1289

Michael J. Watson, a police officer, sued a number of police department officials, alleging, among other alleged wrongdoing, defamation.

Supreme Court granted summary judgment dismissing Watson’s complaints. The Appellate Division affirmed the lower court’s action.

Addressing Watson’s claim of defamation, the Appellate Division noted that "A public official [as a police officer, Watson was a public officer] may not recover damages for defamation unless the official proves that the offending false statement was made with actual malice -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not," citing Freeman v Johnston, 84 NY2d 52.

In this instance, said the court, the officials being sued established “their entitlement to judgment as a matter of law with respect to that cause of action by demonstrating that the remarks that allegedly defamed [Watson] were true with the exception of one remark that was a misstatement but was not made with malice.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09231.htm

A union’s duty of fair representation

A union’s duty of fair representation

County of Tompkins and Tompkins County Sheriff and Tompkins County Deputy Sheriff’s Association, Inc., 44 PERB ¶3024, U-28437, U-28483

The Board affirmed the dismissal of a charge by the Tompkins County Deputy Sheriff’s Association, Inc. (Association), which alleged that the joint employer violated §209-a.1(d) of the Public Employees’ Fair Employment Act (Act) by submitting to interest arbitration a proposal to exclude all unit employees not on the payroll at the time of contract ratification and/or the date of an interest arbitration award from receiving retroactive payments of wages and benefits. 

Although a demand for retroactivity of wages and benefits is generally a mandatory subject of negotiations under the Act and arbitrable under §204.9(g) of the Act, the Association asserted that the joint employer’s proposal was prohibited based upon the rationale in the Appellate Division, Third Department’s decision in Baker v Board of Education, Hoosick Falls Central School District, 3 AD3d 678, 37 PERB ¶7502 (3d Dept 2004).

In that decision, the appellate court concluded that the particular facts alleged in a plenary action were sufficient to state a claim of a breach of the duty of fair representation based upon the employee organization’s alleged failure to provide any representation to the plaintiffs, who had been excluded from receiving retroactive salary increases under a negotiated agreement.

The Board noted that in reaching its decision, the Appellate Division was obligated to grant all reasonable inferences to the factual allegations of bad faith and arbitrariness made in the complaint. Accordingly, the Board found that the Hoosick Falls decision does not stand for the substantive proposition that parties are prohibited from proposing the exclusion of one group of employee from a negotiated retroactive salary increase or other benefits.

In its decision, the Board also resolved exceptions and cross-exceptions to the ALJ’s conclusions with respect to the arbitrability of various Association proposals under §209.4(g) of the Act. The Board concluded that the Association’s mandatory on-call and General Municipal Law §207-c proposals were nonarbitrable under §209.4(g) of the Act because they were unitary demands that included inseparable nonarbitrable components under §209.4(g) of the Act.

The Board emphasized that the application of the unitary demand principle to disputes under §209.4(g) of the Act is necessitated by the Legislature’s public policy choice of dividing the subject matter of proposals for deputy sheriffs into two classes with distinct impasse procedures.

The Association’s health insurance buy-out, rate of pay and overtime proposals were found to be arbitrable because they are directly related to compensation. However, the Board found that the Association’s proposals concerning union leave, road patrol schedules, and clothing were nonarbitrable under §209.4(g) of the Act.

Providing employees with legal representation and reimbursement for legal fees and expenses incurred in defense of a civil action arising out work related activities

Providing employees with legal representation and reimbursement for legal fees and expenses incurred in defense of a civil action arising out work related activities

Thomas v New York City Dept. of Educ., 2012 NY Slip Op 04280, Appellate Division, First Department [See, also, Sagal-Cotler v Board of Educ. of City School Dist. of the City of N.Y., 2012 NY Slip Op 04281, Appellate Division, First Department]

The genesis of the Thomas action: An individual employed as a paraprofessional by the New York City Department of Education (DOE), sought to obtain legal representation pursuant to Education Law §2560(1) when she was named as the defendant in a civil action.*

To obtain legal representation pursuant to the statute in such a situation, however, the individual must meet three requirements: 

1. He or she must have acted within the scope of her employment;

2. He or she must have acted in the discharge of her duties; and

3. His or her action must not have been in violation any rule or regulation of the DOE at the time of the incident.

The Corporation Counsel rejected the individual request for representation and indemnification if held liable.

Noting that the Corporation Counsel is empowered by General Municipal Law §50-k(2) to make factual determinations in the first instance as to whether the individual violated any agency rule or regulation, which "determination may be set aside only if it lacks a factual basis and in that sense, is arbitrary and capricious," the Appellate Division sustained the Corporation Counsel’s decision.

Although the individual denied the charges that had been filed against her, the court said that the allegations against her were "substantiated" at the conclusion of an investigation. Significantly, said the Appellate Division, the individual did not challenge the disciplinary findings against her.

Accordingly, the Corporation Counsel’s determination denying the individual with legal representation and indemnification in a civil action arising out of this incident had a rational basis and was not arbitrary and capricious, an abuse of discretion, or contrary to law.

In so ruling the Appellate Division sustained Supreme Court’s holding that Education Law §2560, which incorporates by reference General Municipal Law §50-k, and Education Law §3028, are not in conflict and should be read together and "applied harmoniously and consistently," citing Alweis v Evans, 69 NY2d 199.

The Appellate Division explained that "It is the duty of the courts to so construe two statutes that they will be in harmony, if that can be done without violating the established canons of statutory interpretation," (see McKinney's Consolidated Laws of New York, Book 1, Statutes §398).

In this instance the Appellate Division said that individual was acting within the scope of her employment since the incident occurred in a classroom but the alleged action, hitting a child on the head during a lesson, violated DOE Chancellor's Regulation A-420 as well as a Statewide rule prohibiting corporal punishment (see 8 NYCRR 19.5[a][2]).

Accordingly, said the court, the alleged act was not undertaken in the discharge or furtherance of the individual’s duties as a school employee, regardless of the purpose of the alleged act.

 

The decision notes that it is a fundamental rule of statutory construction that a court, "in interpreting a statute, should attempt to effectuate the intent of the Legislature" and the plain meaning of the statutory language is "the clearest indicator of legislative intent.”

Both Education Law §§3028 and 2560 provide for the legal representation and indemnification of Board of Education employees. However, they each set forth different circumstances under which such representation and indemnification are to be provided.

When read together, said the court, it is clear that, pursuant to Education Law §3028, a board of education must provide legal representation and pay attorney's fees and expenses incurred in the defense of an employee in any action arising out of a disciplinary action taken against a student by an employee while acting in the scope of his or her employment and in the discharge of his or her duties, unless, pursuant to Education Law §2560(1), the employee is a member of a board of education in a city having a population of one million or more, and, pursuant to General Municipal Law §50-k, he or she violated any rule or regulation of the agency.

* §§17 and 18 of the Public Officers Law respectively address providing State officers and employees and officers and employees of political subdivisions of the State with legal representation and reimbursement for legal fees and expenses incurred in defense of a civil action arising out an act or omission involving the performance of official duties. §19 of the Public Officers Law provides for the state to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of a State officer or employee in his or her defense of a criminal proceeding in a state or federal court arising out of any act which occurred while such officer or employee was acting within the scope of his or her public employment or duties upon his or her acquittal or upon the dismissal of the criminal charges against him or her or reasonable attorneys' fees incurred in connection.

The Thomas decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04280.htm

The Sagal-Cotler decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04281.htm