A reprimand “to be expunged” from the employee’s personnel record if he or she does not repeat to offense within a specified period of time is not a penalty authorized by law

A reprimand “to be expunged” from the employee’s personnel record if he or she does not repeat to offense within a specified period of time is not a penalty authorized by law

Decisions of the Commissioner of Education, Decision 10933

A §3020-a disciplinary panel found a teacher guilty of insubordination as the result of her refusal to act as a chaperone at a school event. The penalty imposed by the panel: “… a reprimand, to be expunged from (the teacher’s personnel) records if for the next two years there are no further disciplinary problems of a similar nature”.

The District appealed the penalty imposed by the panel to the Commissioner of Education, contending that such a penalty was not authorized by §3020-a of the Education Law.

The Commissioner agreed, finding that although the penalty to be imposed, a reprimand, was authorized by §3020-a, the disciplinary panel lacked any authority to direct the District to later expunge the reprimand from the teacher’s file for “good behavior.” The Commissioner then exercised his authority to impose an appropriate disciplinary penalty on the employee and ruled that a reprimand would be appropriate under the circumstances.

The Attorney General has considered the question of an employer to remove a reprimand from an employee’s personnel file. In Opinion of the Attorney General 81-28, the Attorney General said that an appointing authority that wishes to clear the record of an employee who had in the past misbehaved but who has since performed well should have that option, observing that “public policy is not served by forever blighting the employee’s personnel file.”

Accordingly, although a §3020-a disciplinary panel may not direct the appointing authority to “remove” any reference to the penalty from the individual’s personnel file, the appointing authority, in the exercise of its discretion, may elect to do so.

Presumably the same rationale would be applied with respect to penalties set out in other statutes providing for initiating disciplinary action against an employee for alleged misconduct such as §75 of the Civil Service Law, §155 of the Town Law, §137 of the Second Class Cities Law and §8-804 of the Village Law.

However, no such limitation would apply with respect to penalties imposed by an arbitrator pursuant to a negotiated alternative to a statutory disciplinary procedure as the arbitrator is generally permitted to impose such penalty as he or she deems appropriate under the circumstances.

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A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

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Civil Service Law §106 does not authorize an individual to maintain a private cause of action based on alleged violation of the statute

Civil Service Law §106 does not authorize an individual to maintain a private cause of action based on alleged violation of the statute

Goddard v Martino, 2013 NY Slip Op 23240, Supreme Court, Dutchess County, Justice Peter M. Forman

Donald J. Goddard was appointed as a police officer in the Town of Hyde Park Police Department in 1986 and ultimately was permanently appointed to the position of Lieutenant in 2004. He was subsequently provisionally appointed to serve as Chief of Police pending his passing and qualifying for appointment from a promotion list for Chief.

In the words of Justice Peter M. Forman, “the relationship between [Goddard] and the newly-elected Town Board quickly became toxic” and Goddard subsequently submitted a letter expressing his intent “to retire from the Town of Hyde Park Police Department effective April 10, 2010.”

Goddard sued the Town alleging that:

1. He submitted this retirement letter because (a) he had become aware that the Town Board was contemplating abolishing the position of Lieutenant, and (b) he was advised by a member of the Town Board that he would never be appointed as the permanent Chief of Police, regardless of his performance on the civil service examination and “felt compelled to retire in order to preserve his health benefits, which would be forfeited if his employment ended due to termination rather than retirement;” and

2. The Town Board abolished the Lieutenant position in order to prevent him from being reinstated to that position once the permanent Chief of Police position was filled. 

Although the Town Board asserted that the Lieutenant position was being abolished for financial reasons, Goddard alleges that this financial justification was a pretext, and that "the Town Board was manipulating the civil service system in order to prevent [Goddard] from being reinstated as Lieutenant."

Ultimately Goddard filed a notice of claim with the Town alleging that the Town had “obstructed or defeated his civil service rights in violation of Civil Service Law §106.” Following a hearing conducted with respect to the notice of claim filed pursuant to General Municipal Law §50-h, Goddard commenced the instant litigation asserting a private cause of action based upon Town’s alleged violation of Civil Service Law §106.

Civil Service Law §106, in pertinent part, makes it a misdemeanor to defeat, deceive or obstruct the civil service rights of any person who seeks appointment, promotion, or reinstatement to a covered civil service position. However, notes the opinion, "Civil Service Law §106 does not expressly make a private cause of action available to individuals who believe that their civil service rights have been violated."

Addressing the Town’s motion seeking summary judgment dismissing Goddard’s complaint on the grounds that no private cause of action is available under Civil Service Law §106, Justice Forman said that a petitioner had to satisfy three tests to maintain his or her cause of action based on alleged violations of Civil Service Law §106.

The courts said that “When assessing whether a statute provides an implied right to a private cause of action, "the essential factors to be considered are: (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme."

Commenting that the first factor is the one that is most easily satisfied, the court noted that “When a statute seeks to deter certain conduct, the second factor will be satisfied upon a determination that a private cause of action for injuries arising from this prohibited conduct would further the statute's deterrent goal.”

Goddard, said the court, clearly falls within the class of people for whose benefit Civil Service Law §106 was enacted. Recognizing a private cause of action under Civil Service Law §106 would also clearly advance the statute's deterrent goal. Therefore, said the court, the first two prongs of this three-prong test were satisfied.

The third factor, generally recognized as the most important factor, is whether a private right of action is consistent with the legislative scheme.

In Justice Forman’s view, there was no clear evidence that the Legislature intended to expose municipalities to the risk of financial liability for a violation of Civil Service Law §106. Rather, said the court, “Civil Service Law §102(3) squarely places the authority for enforcement of Civil Service Law §106 on the appropriate municipal civil service commission,” thus precluding an aggrived individual from bringing a private cause of action seeking redress of his or her grievance.

Justice Forman, upon reading §102(3) and §106 together, concluded that “the Legislature intended to limit enforcement of Civil Service law §106 to criminal proceedings (to punish past violations), and to actions by the appropriate municipal civil service commission seeking injunctive relief (to prevent continued violations).”

Noting the Goddard had a number of other legal remedies available to him regarding his allegations concerning his statutory right to his continued employment in the public service, including his claim that he was forced to retire because the Lieutenant position was being abolished, not for the purpose of economy or efficiency, but as a subterfuge to deprive Goddard of his civil service rights, Justice Forman granted the Town’s motion for summary judgment dismissing Goddard’s complaint.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_23240.htm

A school board’s “essential responsibilities” can’t be negotiated away

A school board’s “essential responsibilities” can’t be negotiated away

Sweet Home Central School District v. Sweet Home Education Association, 90 AD2d 683, affd, 58 NY2d 912 

The collective bargaining agreement [CBA] between the Sweet Home Central School District [District] and the Union permitted the District to "transfer" teachers subject to the teacher involved being advised of the reason(s) for the transfer and being given an opportunity to select from among  “current openings” for which the teacher was qualified. The contract also provided that wishes of the teacher were to be taken into consideration to the extent possible.

A music teacher grieved his “involuntary transfer out” as concert band director. The arbitrator directed the District to review the appropriate positions available with him and to permit him to select from among them. He further directed the District to permit the teacher to return to the concert band director position if he wished and the District was to “develop a program, with outside assistance, ‘to assure a smooth functioning’ of the concert band” were he to choose to return.

On appeal the arbitrator’s award was modified by the Appellate Division. The court explained that §1711 of the Education Law gave the Board a non-delegable responsibility to maintain adequate standards in the classroom and the District’s authority to assign and reassign teachers was essential to that responsibility.

“Public policy prevents a school district from bargaining away this responsibility,” said the court. In keeping with this view, the arbitrator was held not to have the power to direct the District to retain the teacher in the position from which he had been reassigned.

The Court then held that the CBA between the District and the Union could (and did) establish procedural rules regulating the District’s right to reassign teachers. That portion of the arbitrator’s award directing the District to comply with the procedural rules to which it had agreed was upheld.

Dismissal of disciplinary charges recommended because superior condoned the employee's alleged failure to follow department policy

Dismissal of disciplinary charges recommended because superior condoned the employee's alleged failure to follow department policy

OATH Index No. 866/13

A New York City juvenile counselor was charged with failing to conduct three inspections during a tour or duty as required. 

At the disciplinary hearing, however, the counselor proved that the ”three inspections” requirement had not been enforced by management for many years. 

OATH Administrative Law Judge Alessandra F. Zorgniotti recommended dismissal of charges.

The counselor admitted that she did not make three tours of inspection and testified that the failure to do so was a regular practice caused by an excessive work load.

Judge Zorgniotti found that the counselor had proved her affirmative defense of condonation and waiver by showing that her not making three inspections each tour of duty was condoned by supervisors. Further, said the ALJ, the employer did not show that it placed the counselor on notice that the “three inspection” during a tour of duty policy would be enforced

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-866.pdf

An alternative to a principal for each school

An alternative to a principal for each school

Matter of Mennella, Decisions of the Commissioner of Education Number 10851

Although the Regulations of the Commissioner of Education provide that each school in a District shall have assigned to it a qualified principal, waivers from that requirement may be obtained under appropriate circumstances.*

An example of this is found in the Commissioner’s decision in Matter of Mennella.

One issue involved Mennella's seeking an order to restore funds for an abolished position of principal. The District had decided to administer its two smallest elementary schools by assigning one principal and two assistant principals to them.

The Commissioner rejected Mennella's claim that the District could not do so, noting that earlier the District had been granted the required exemption each school have a principal. The Commissioner also noted that the assistant principals involved held valid elementary principal certificates and were qualified to perform the duties assigned to them.

* 8 NYCRR 100.2(a), addressing the administration of elementary and secondary schools, provides, in pertinent part, as follows: “The board of education of each school district shall employ and assign to each school under its supervision a full-time principal holding the appropriate certification as required pursuant to section 80.4(b) of this Title. Upon the submission of evidence that there are circumstances which do not justify the assignment of a principal to a particular school, or that another mode of building administration would be more effective, the commissioner may approve an alternative mode of building administration.”