Governor Andrew M. Cuomo signs bill addressing cyberbullying in schools.

Governor Andrew M. Cuomo signs bill addressing cyberbullying in schools.

Source: Office of the Governor

Effective July 1, 2013, schools in New York State will be required to take action when students experience cyberbullying or other forms of harassment. The new law, Chapter 102 of the Laws of 2012,* is designed to "ensure that school districts take immediate steps to end harmful behavior, prevent recurrences, and ensure the safety of the targeted students." 

The new law also provides for improved training to help teachers and administrators better prevent and respond to bullying and other harmful acts. In addition, it specifically addresses situations  “where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property.”

According to the Office of the Governor, the “new law is designed to strengthen a school's response to harassment and bullying through improved reporting, investigation, intervention, training and prevention.” 

Key provisions:

1. Require Schools to Act When Cyberbullying Occurs

The law requires that schools act in cases of cyberbullying, which may occur on or off campus, when it creates or would create a substantial risk to the school environment, substantially interferes with a student’s educational performance or mental, emotional or physical well-being, or causes a student to fear for his or her physical safety.

2. Ensure Proper Protocols Are in Place to Deal with Cyberbullying

The law requires school districts to put in place protocols to deal with cyberbullying, harassment, bullying and discrimination, including assignment of a school official to receive and investigate reports; prompt reporting and investigation; responsive actions to prevent recurrence of any verified bullying; coordination with law enforcement when appropriate; development of a bullying prevention strategy; and notice to all school community members of the school’s policies.

3. Set Training Requirements For School Employees to Help Identify and Prevent Cyberbullying

The law sets training requirements for current school employees, as well as for new teachers and administrators applying for a certificate or license, on the identification and mitigation of harassment, bullying, cyberbullying and discrimination.

* A copy of the text of the bill is available from NYPPL by e-mail upon request. E-mail your request to publications@nycap.rr.com and type “Cyberbullying” in the subject line,

Dismissed probationer's allegations that her termination constituted retaliation for exercising her First Amendment rights rejected

Dismissed probationer's allegations that her termination constituted retaliation for exercising her First Amendment rights rejected

Kiehle v. County of Cortland, USCA, 2^nd Circuit, Docket #11-3097-cv [Summary Order*]

Kristina Kiehle appealed a federal district court's judgment granting summary judgment to the County of Cortland and three employees of the Cortland County Department of Social Services ("DSS") alleging that she had been terminated from her position as a probationary case worker in retaliation for testifying at a New York State Family Court ("Family Court") hearing.

The Circuit Court of Appeals, after a de novo review, sustained the district court’s granting the County’s motion for summary judgment.

According to the decision, Kiehle had voluntarily testified at a Family Court hearing in which a mother sought to re-obtain custody of her daughter. After introducing herself as a DSS caseworker, Kiehle stated that her conclusions were based on information that she had obtained in the course of her public employment and that “the mother was able to adequately supervise, and was not neglectful of, her children. She then recommended that the child be returned to the mother.

The Circuit Court said that although Kiehle’s position was contrary to DSS’s position in the proceeding, she had not distinguished her personal views from those of DSS. Accordingly it sustained the district court’s conclusion that Kiehle did not testify as a private citizen on a matter of public concern at the Family Court hearing but, rather, she testified as a government employee, i.e., as a DSS caseworker.

Citing Garcetti v Ceballos, 547 U.S. 410, the Circuit Court explained that "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

The Circuit Court set out the following guidelines used by courts in cases where a public employee claims “First Amendment retaliation,” indicating that in order for the employee to prevail, he or she must demonstrate that:

(1) The speech addressed a matter of public concern,

(2) The employee suffered an adverse employment action, and

(3) There was a causal connection existed between the speech and the adverse employment action" such that "speech was a motivating factor in the determination."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/6b2350f4-485a-4223-8c69-f3f5bc5e76f1/16/doc/11-3097_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6b2350f4-485a-4223-8c69-f3f5bc5e76f1/16/hilite/

* Rulings by summary order do not have precedential effect.

Employee terminated for omitting relevant information from his application for employment

Employee terminated for omitting relevant information from his application for employment
Russell v New York Citywide Admin. Servs., 55 AD3d 614

Stephen Russell sued the New York City Department of Citywide Administrative Services following its terminating his temporary employment as a bridge and tunnel officer. An investigation by the Citywide Administrative Services revealed that Russell had failed to disclose pertinent information on his employment application. The information omitted: Russell’s “prior misdemeanor criminal conviction, prior revocations and suspensions of his driver's license, and a prior termination from employment by the New York City Transit Authority.”

The Appellate Division agreed with Supreme Court that Citywide Administrative Service’s decision to terminate Russell’s temporary employment was neither arbitrary nor capricious, had a rational basis, and was not made in bad faith.

Section 50.4 (f) and (g), respectively, permit the State Civil Service Department and municipal commissions to disqualify an individual “who has intentionally made a false statement of any material fact in his [or her] application; or (g) who has practiced, or attempted to practice, any deception or fraud in his [or her] application … to be disqualified. 

The statute further provides that “No person shall be disqualified pursuant to this subdivision unless he [or she] has been given a written statement of the reasons therefore [sic] and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.”

The full text of the decision is posted on the Internet at
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07670.htm

Tours of active military duty considered for the purpose of mitigating disciplinary penalty imposed on employee

Tours of active military duty considered for the purpose of mitigating disciplinary penalty imposed on employee
Gomez v Kelly, 55 AD3d 305

New York City Police Commissioner Raymond W. Kelly found Manuel Gomez guilty of five charges of misconduct and as the penalty placed Gomez on a one-year disciplinary probation and imposed a forfeiture of 30 days of vacation credit.

The charges filed against Gomez: violation of his commanding officer's order to terminate his involvement with the District Attorney's office in a criminal investigation; failure to take possession of drugs during a police department integrity test; failure to voucher his helmet, mace and shield before leaving for active military duty; retrieved his service handgun before the official date of his discharge from active military duty; and failure to report a domestic incident to the department.

Gomez appealed and the Appellate Division, after sustaining the Commissioner’s determination finding Gomez guilty of the charges filed against him, ruled the penalty imposed by the Commissioner was “excessive in light of the mitigating circumstances, i.e., [Gomez's] several tours of active military duty, including a year in Afghanistan for which was decorated, and the substantial pay lost in connection with his military service,” citing Pell v Board of Education, 34 NY2d 222.

The court remanded the case to the Commissioner for the purpose of his setting a lesser penalty.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07181.htm

Substantial evidence supports disciplinary hearing officer’s findings

Substantial evidence supports disciplinary hearing officer’s findings

Mercado v Kelly, 54 AD3d 654

A police officer appealed his termination from his position as a New York City police officer after he was found guilty of certain charges following a disciplinary hearing.

The Appellate Division, in a unanimous decision, said that “Substantial evidence supports the findings, including that [the officer] possessed a stolen license plate and made false and misleading statements about whether he knew the plate was stolen.

Accordingly, the court dismissed the officer’s appeal as “There is no basis for disturbing the hearing officer's assessment of petitioner's credibility regarding the inconsistencies between his plea allocution in the criminal case against him and his statements to the Internal Affairs Bureau investigators.”

As to the penalty imposed by the Police Commissioner, dismissal, the Appellate Division said that “The penalty of dismissal does not shock our sense of fairness, particularly where the evidence gives rise to the inference that petitioner obtained the stolen license plate by virtue of his official position and intended to use the plate for fraudulent purposes, citing Kelly Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07175.htm