The 2014 Anderson Series Seminars scheduled

The 2014 Anderson Series Seminars scheduled

Source: Government Law Center, Albany Law School

The Albany Law School’s Government Law Center will present the 2014 Annual Warren M. Anderson Breakfast Seminar Series, a nonpartisan hour-long breakfast program held at the Capitol during the Legislative Session.

The program features informative speakers to address legal aspects of current public policy issues facing the State of New York. Since it was established 22 years ago, the Anderson Series has been one of the most prestigious and anticipated events on the GLC’s calendar. The program continues to be offered free of charge, but space is limited.

The following presentations are schedule to be held on the dates indicated:

MUNICIPAL FINANCE - February 11  

INFRASTRUCTURE FUNDING - April 8  

CAMPAIGN FINANCE - April 29  

EDUCATION REFORM AND THE COMMON CORE - May 20  

All session are held from 8-9 a.m. on the dates indicated above in the Assembly Parlor, at the State Capitol, 3rd FL

For those interested, each seminar is accredited for one hour of transitional and non-transitional CLE credit in the area of “Professional Practice.”

To register or to obtain more information, contact Ms. Amy Gunnells at agunn@albanylaw.eduor telephone 518-445-2329. 
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Defending and indemnifying an educator sued in a civil action arising out of the exercise of his or her duties

Defending and indemnifying an educator sued in a civil action arising out of the exercise of his or her duties

2013 NY Slip Op 52173(U), Supreme Court, Cortland County [Not selected for publication in the Official Reports]

A lawsuit [Civil Action] was filed on behalf of a female student alleging five causes of the action: (1) a negligent supervision claim against the school district; (2) an assault claim against a teacher [Teacher]; (3) a battery claim against Teacher; (4) an intentional infliction of emotional distress claim against Teacher; and (5) a negligent infliction of emotional distress claim against Teacher.

Upon being served with the summons and complaint, Teacher, citing Education Law §3028*, asked the school district provide him with a defense and indemnification in the Civil Action. The school district notified Teacher that it would provide, through its liability insurer, a defense of the underlying action and indemnification for any damages that may be awarded against Teacher on the fifth cause of action — for negligent infliction of emotional distress — but that it would not provide indemnification for any damages that may be awarded for the intentional torts alleged in the second, third, or fourth causes of action.

In response to the school district's refusal to provide him with complete indemnification, Teacher filed an Article 78 petition seeking a court order directing the school district to so provide such indemnification. The school district moved, without answering Teacher’s petition, for summary judgment and dismissal of his petition as a matter of law.

Education Law §3811.1, in pertinent part, provides that in the event a superintendent, principal, member of the teaching or supervisory staff, member of a committee on special education or subcommittee thereof, surrogate parent as defined in the regulations of the commissioner of education, or any trustee or member of the board of education of a school district or non-instructional employee of any school district other than the city school district of the city of New York or any board of cooperative educational services shall defend any action or proceeding, other than a criminal prosecution or an action or proceeding brought against him by a school district or board of cooperative educational services hereafter brought against him, including proceedings before the commissioner of education, arising out of the exercise of his powers or the performance of his duties under this chapter,** all his reasonable costs and expenses, as well as all costs and damages adjudged against him … [emphasis supplied].

Addressing the school district’ motion to dismiss Teacher's claim for full indemnification in the Civil Action, Supreme Court said that it may properly consider the merits of Teacher’s petition “because the dispositive facts are undisputed and the parties had ample opportunity to present their respective arguments”, noting that such a motion to dismiss must be granted where the petition and supporting papers fail to allege facts sufficient to support the alleged claim.

The Education Law §3811(1), said the court, requires the school district defend Teacher in a civil actions arising out of the exercise of his duties and indemnify him from any resulting damages. The issue of whether the alleged conduct on which the Civil Action is based comes within the provisions of Education Law §3811(1) as having been within the discharge of Teacher's professional duties as an employee of the school district is for school district to decide in the first instance. The school district’s determination in this regard may be set aside only if it lacks a factual basis and, therefore, is arbitrary and capricious.

An employee's actions are within the scope of his or her employment only if the purpose of such acts is to further the employer's interest, or to carry out the duties owed to the employer. Here the school district concluded that Teacher's actions with respect to the fifth cause of action set out in the Civil Action was within the scope of his employment and, therefore, offered a defense of the entire Civil Action but limited its duty to indemnify Teacher with respect to the fifth cause of action.

In this regard, the court said that the fact that some of the alleged conduct may have arisen in Teacher's performance of his duties does not require that he be indemnified for damages based on conduct that exceeds the scope of his employment. With respect to the allegations on which the second, third and fourth causes of action are based the school district concluded that such conduct is not within the scope of Teacher's employment.

With respect to Causes of Actions 2, 3 and 5, Supreme Court held that there was no basis for concluding that Teacher's conduct, allegedly constituting an intentional tort, amounted to acting in good faith or that such conduct was merely the result of Teacher’s inartfully trying to fulfill his duties. Similarly, said the court, no reasonable argument may be made that such conduct either furthers the school district's legitimate interests or was required for Teacher to carry out his duties.

Finding that the school district had a rational basis for concluding that the conduct alleged in Causes of Action 2, 3 and 4 were not performed within the scope of Teacher's employment, the court ruled that the school district has no duty to indemnify Teacher with respect to those three causes of action. 

Supreme Court then “ordered that [the school district] provide Teacher with a defense of the underlying action and indemnity for damages arising from the fifth cause of action asserted therein” and dismissed the remainder of Teacher’s petition with prejudice.

* Teacher’s notice of petition and relief sought was deemed amended to conform to the proof (seeCPLR 3025[c]), by changing "3028" to "3811" on the representation that citing 3028 was a scrivener’s error.

** The court noted that the phrase utilized in Education Law § 3811 — "arising out of the exercise of his powers or the performance of his duties under this chapter" — is equivalent to the term "scope of employment," "scope of employment," "discharge of duties," "performance of duties," and similar phrases are interchangeable citing Segal-Cotler v Board of Education, 20 NY3d 671.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_52173.htm

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An administrative disciplinary penalty that is within the discretion of the reviewing agency to impose will not be disturbed by the court

An administrative disciplinary penalty that is within the discretion of the reviewing agency to impose will not be disturbed by the court

2014 NY Slip Op 00261, Appellate Division, Third Department

The Board of Regents suspended an individual’s [LPN] license to practice as a licensed practical nurse in New York for two years following her pleading guilty to petit larceny to satisfy charges against her for fraudulently obtaining unemployment insurance benefits.LPN was sentenced to three years of probation and ordered to pay restitution in the amount of $17,860.50.

The State Education Department's Office of Professional Discipline then sought to impose an administrative disciplinary penalty on LPN based on her criminal conviction.*  Following a hearing, the Office of Professional Discipline advocated for a revocation of LPN's license. 

However, the Regents Review Committee recommended that LPN's license be suspended for two years. The Board of Regents accepted the Review Committee's recommendation. LPN sued, challenging the “appropriateness of the penalty” imposed on her by the Board of Regents.

Applying the Pell Doctrine,**the Appellate Division said that an administrative penalty that is within the discretion of the reviewing agency to impose will not be disturbed unless it is so disproportionate to the offense as to shock one's sense of fairness. 

Here, said the court, notwithstanding the recommendation of the Office of Professional Discipline, the Board, considering mitigating circumstances: the lack of any direct relation between LPN's misconduct and her work as a licensed practical nurse, and LPN’s “genuine remorse,” determined that determined that a significant suspension of LPN’s license was warranted “based on the amount of money stolen over a 10-month period.”

LPN had argued that, in addition to these factors, the economic impact of the suspension on her family should be taken into consideration. However the Appellate Division said that the record indicates that the Board was aware of LPN’s financial situation.

Under the circumstances, including LPN's admitted breach of the standards of honesty and integrity expected of a professional, the court said that the penalty imposed by the Board of Regents was not so disproportionate to her offense as to shock one's sense of fairness and dismissed LPN’s appeal.

* Education Law §6509[5][a][i] indicates that “Being convicted of committing an act constituting a crime under: (i) New York State law” constitutes professional misconduct.

** Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00261.htm

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Finding that Educator “lacked good moral character” results in revocation of her teaching license

Finding that Educator “lacked good moral character” results in revocation of her teaching license

2013 NY Slip Op 08318, Appellate Division, Third Department

After students complained that a high school teacher [Educator] was exhibiting favoritism towards certain male students and sending text messages to one male student, the school principal advise Educator about her behavior and that she should avoid even appearances of impropriety.

The following year, similar complaints led to an investigation and the superintendent placing Educator on administrative leave. Educator was allowed to return from leave after she agreed “to follow a teacher improvement plan that required, among other things, that she not meet alone with students.” The plan also suggested that she avoid exchanging communications of a personal nature or engaging in activities beyond the boundaries of an appropriate student/teacher relationship.

Because Educator did not reform her behavior, the district initiated dismissal proceedings whereupon Educator resigned from her position.

Ultimately the State Department of Education initiated an investigation into Educator 's moral character*and issued a notice of substantial question of moral character. Educator requested a hearing, following which the panel found that Educator lacked good moral character because she had engaged in inappropriate contact with a student and disregarded a directive from the superintendent. The majority of the panel recommended that Educator’s teaching certificate be revoked.

The Commissioner of Education agreed with the panel findings regarding Educator’s lack of good moral character and revoked her teaching certificate.**

Following Supreme Court’s dismissed Educator 's CPLR Article 78 petition seeking annulment of the Commissioner's determination, Educator appealed.

The Appellate Division said the finding that Educator lacked good moral character was not arbitrary or capricious. As an example of the information in the record, the Appellate Division noted that Educator's phone records and testimony from an Education Department investigator established that Educator had exchanged over 1,800 text messages with a particular male student between September and May, with 268 of them sent between the hours of 10:00 p.m. and 7:00 a.m. The court commented that “Although the content of the messages and calls is unknown, and [Educator] testified that none of it was inappropriate, the sheer volume of messages between a student and teacher raised red flags.”

The decision reports that “In her testimony, [Educator] acknowledged that her contact with students was not proper because it blurred the boundaries of the teacher/student relationship, but she used her testimony as an opportunity to justify her behavior or blame the students” and “Educator continued exchanging messages after being warned, disciplined and resigning her position for her nonprofessional contact with students, indicating that she did not truly understand or appreciate the improper nature of her extensive personal contact with students.”

The Appellate Division ruled that the Commissioner of Education did not abuse his discretion in imposing the penalty of revocation, as that penalty was not shocking or disproportionate to Educator's conduct.

* See 8 NYCRR 83.1, Determination of good moral character.

** Education Law §305.7 provides, in pertinent part, that “The commissioner may annul upon cause shown to his or her satisfaction any certificate of qualification granted to a teacher by any authority whatever….”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08318.htm
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Governor Cuomo to launch a citizen preparedness corps training program on February 1, 2014

Governor Cuomo to launch a citizen preparedness corps training program on February 1, 2014

Source: Office of the Governor

Governor Cuomo believes that more New Yorkers than ever need to be prepared and be trained to respond in the event of an emergency. His goal: Provide 100,000 citizens with the tools they need to be ready and able to help their families and neighbors during emergencies

To achieve this, on February 1, 2014 the Governor will launch the Citizen Preparedness Corps Training Program that will train some 100,000 New Yorkers in the proper preparation for emergencies or disasters by December 31, 2014. The Governor explained that the program seeks to provide citizens of the State with the tools and resources to prepare for emergencies and disasters and to be able to respond and attain, as quickly as possible, to pre-disaster conditions in the event New York experiences a natural disasters.

Citizen Preparedness Corps training will begin on Saturday, February 1st in Richmond and Suffolk Counties at:

Saturday, February 1st, 2014 - Richmond County
New Dorp High School, 10:00 a.m. - 12:00 p.m.
465 New Dorp Lane, Staten Island, NY 10306

Saturday, February 1st, 2014 - Suffolk County
Farmingdale State College, 12:00 p.m. - 2:00 p.m.
Roosevelt Hall, Multipurpose Room
2350 Broadhollow Road, Farmingdale, NY 11735

Space is limited, and those wishing to participate must register in advance. Pre-registration for the training session is available at: http://www.nyprepare.gov/aware-prepare/nysprepare/

Training sessions will be led by New York National Guard personnel, working with experts from the Division of Homeland Security and Emergency Services’ Office of Emergency Management and Office of Fire Prevention and Control. All training sessions will be coordinated with local county emergency management personnel.

A key component of this training effort is the distribution of Citizen Preparedness Corps Response Kits that contain key items to assist individuals in the immediate aftermath of a disaster.

Each training participant [limited to one kit per family] will receive a free Citizen Preparedness Corps Response Starter Kit. The Starter Kit includes a plastic drop cloth; light stick; a First Aid Kit; a face mask; safety goggles; an AM/FM pocket radio with batteries; six packs of drinking water; six food bars; a regular flashlight and two D batteries; an emergency blanket; duct tape; work gloves; and a water bottle. As part of the training, participants will receive information about the other supplies and personal information that they should add to their personal Response Kit.

Click here for a photo of the kit.
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