An appeal to the Commissioner of Education is not the proper forum to adjudicate issues of constitutional law or the constitutionality of a statute or regulation

An appeal to the Commissioner of Education is not the proper forum to adjudicate issues of constitutional law or the constitutionality of a statute or regulation

Appeal of N.C. on behalf of her son, C.C., Decisions of the Commissioner of Education, Decision #16,805

Among the issues raised in an appeal challenging the decision of the New York City Board of Education [NYC DOE] that a student, C.C., was not entitled to an exemption from the immunization requirements of Public Health Law was N.C.’s allegation that her constitutional rights were violated. N.C. further alleged that “the process by which NYC DOE processed her religious exemption application [was] fraudulent and violated her right to due process.”

The Commissioner said that “an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation,” explaining that “[a] novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction.”

Accordingly, the Commissioner declined to consider “such constitutional claims” but ultimately sustained N.C.’s appeal for other reasons.

Based on the record, the Commissioner concluded that the weight of the evidence supported the N.C.’s contentions that her opposition to the vaccine stems from sincerely held religious beliefs and “produced unrebutted evidence of a linkage to the only vaccine at issue.”

The Commissioner also found that NYC DOE failed to adequately explain its rejection of otherwise convincing evidence and admonished NYC DOE “to provide parents with appropriate written communications articulating the specific reasons for the denial of religious exemptions in accordance with the [Department of Education’s] guidance,” which guidance states that “a decision to deny a request for a religious exemption must be in writing” and “the written communication must address the specific reasons for the denial; merely stating that the request does not demonstrate a sincerely held religious belief is not sufficient articulation.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16805

Some proposed settlement agreements may require court or agency approval

Some proposed settlement agreements may require court or agency approval

Cheeks v Freeport Pancake House, Inc., USCA, 2^ndCircuit, Docket 14-299 CV

Dorian Cheeks sued Freeport Pancake House [FPH] seeking to recover overtime wages, liquidated damages and attorneys’ fees under both the Federal Fair Labor Standards Act [FLSA] and New York State’s Labor Law. He also alleged that he was demoted, and ultimately fired, for complaining about FPH’s failure to pay him and other employees the required overtime wage.

After appearing at an initial conference with the district court, the parties agreed on a private settlement of Cheeks’ action  and filed a joint  stipulation  and order  of dismissal with prejudice* pursuant to Federal Rule 41(a)(1)(A)(ii). The federal district court, however, refused to accept the stipulation as submitted, concluding that Cheeks could not agree to a private settlement of his FLSA claims without either the approval of the district court or the supervision of the United Stated Department of Labor [DOL].

The US Circuit Court of Appeals agreed with the district court's holding ruling that in the absence of such approval, parties cannot settle their FLSA claims through a private stipulated dismissal with prejudice and remanded for further proceedings.

Characterizing as “offering useful guidance,” the Second Circuit noted that other circuit courts of appeal have arrived at different results, citing Martin v Spring Break ‘83 Prods., L.L.C., 688  F.3d 247, a 5^th Circuit ruling in which the court concluded that a private settlement agreement containing a release of FLSA claims entered into between a union and an employer waived the employees’ FLSA claims, even without district court approval or DOL supervision, and, in contrast, Lynn’s Food Stores, Inc. v United States Dep’t of Labor, 679 F.2d 1350, an 11^th Circuit ruling in which that court held that there must be a court finding that the proposed settlement “is a fair and reasonable resolution of a bona fide dispute over FLSA provisions.”

However, said the Second Circuit, the question before it “asks whether the parties can enter into a private stipulated dismissal of FLSA claims with prejudice without the involvement of the district court or DOL that may later be enforceable?”

Explaining that requiring judicial or DOL approval of such settlements is consistent with what "both the Supreme Court and our Court have long recognized as the FLSA’s underlying purpose: to extend the frontiers of social progress by insuring to all our able-bodied working men and women a fair day’s pay for a fair day’s work,” the Second Circuit concluded that review of the proposed settlement by the district court or DOL was required.

* Dismissal with prejudice means it can never be filed again by the parties to the settlement.

The Cheeks decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/52d5a9a7-8d8f-41f8-be32-a006b7a4c96f/2/doc/14-299_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/52d5a9a7-8d8f-41f8-be32-a006b7a4c96f/2/hilite/

An educator’s preferred list eligibility rights depend on his or her tenure area

An educator’s preferred list eligibility rights depend on his or her tenure area

Decisions of the Commissioner of Education, Decision No. 16,801

A duly certified public school administrator [Administrator] employed by the Perry Central School District challenged the district school board’s [Board] decision not to appoint her to a secondary principal position following the abolishment of her position as middle school principal. 

The Board had voted to abolish the position of middle school principal for economic reasons effective June 30, 2014.  The secondary principal position was to become vacant July 1, 2014 when the incumbent of that position would move to a new position as superintendent of schools. A notice was posted regarding the open position of secondary principal and Administrator claimed that she had a right being appointed to the secondary principal position.  The Board told Administrator that she would not automatically be appointed to the position.* 

Administrator contended that she was entitled to the position of secondary principal “because the position is substantially similar to her abolished position of middle school principal” and in the same general tenure area of “principal.”  Administrator also alleged that she was being terminated without due process in violation of Education Law §§3012, 3020, and 3020-a.

In rebuttal, the Board argued that:

1. Administrator failed to meet her burden of proof in showing that the district has a general tenure area of principal;

2. Administrator did not show that she is the senior administrator in that tenure area such that she is entitled to the position of secondary principal; and

 

3. Administrator has failed to show that the district acted in bad faith by abolishing the position of middle school principal.

The Commissioner dismissed Administrator’s appeal claiming that she is entitled to the position of secondary principal because it is similar to her previously abolished middle school principal position and in the same general principal tenure area. The Commissioner explained that the Board has demonstrated, “on the record,” that it has established narrow tenure areas with regard to principals within the district, not one general principal tenure area as Administrator contended.

The Board admitted that “it has not been consistent in its appointment of elementary principals, with past appointment resolutions referencing the elementary principal tenure area.” However, said the Commissioner, it appears that Board “has otherwise consistently applied narrow administrative tenure areas and this [admission] appears to be an error with respect to one employee rather than a conscious decision to revert to a general principal tenure area for all principals.”

The Commissioner’s decision also noted that the Board’s resolution appointing Administrator “on probation” and the Board’s resolution appointing her “on tenure” very explicitly appointed her to the Middle School Principal tenure area.  Thus, concluded the Commissioner, the Board met its burden of proof to show that the Perry Central School District has narrow tenure areas for its principal positions.

Finding that the secondary principal position is not in the same tenure area as Administrator’s abolished position of middle school principal, the Commissioner ruled that Administrator is not entitled to appointment to the secondary principal position, presumably from a preferred eligible list established upon the abolishment of the middle school principal position. 

As to Administrator’s claim that she was terminated without due process, the Commissioner said that the school board explained that the abolition of Administrator’s position resulted from a reorganization of its schools to a pre-kindergarten through sixth grade and seventh grade through twelfth grade configurations that would result in cost savings to the district at a time of fiscal difficulties.  Thus, said the Commissioner, Administrator has not demonstrated that she was denied administrative due process when she was advised that her position was abolished and that she would be terminated as a result of that action, and this branch of her appeal must also be dismissed.

*At the time Administrator filed her appeal to the Commissioner, the position of secondary principal had not yet been filled.  

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16801

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations and summarizing selected court and administrative decisions involving layoff issues. For more information click on http://nylayoff.blogspot.com/

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Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending August 8, 2015

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending August 8, 2015

[Click on text highlighted in colorto access the full report]

Tax collector pleads guilty to faking her own tax payments
DePeyster Town Clerk Michelle Sheppard resigned her two public jobs and agreed to pay $4,303 in restitution for dodging her personal town and county tax payments over several years. http://www.osc.state.ny.us/press/releases/aug15/080715.htm?utm_source=weeklynews20150809&utm_medium=email&utm_campaign=080715release

Comptroller Thomas P. DiNapoli announced his office completed audits of the

Niskayuna Fire District 2

http://www.osc.state.ny.us/localgov/audits/firedists/2015/niskayuna2.pdf?utm_source=weeklynews20150809&utm_medium=email&utm_campaign=080515arelease

Northville Public Library

http://www.osc.state.ny.us/localgov/audits/libraries/2015/northville.pdf?utm_source=weeklynews20150809&utm_medium=email&utm_campaign=080515arelease

Town of North Norwich

http://www.osc.state.ny.us/localgov/audits/towns/2015/northnorwich.pdf?utm_source=weeklynews20150809&utm_medium=email&utm_campaign=080515arelease

Town of Phelps

http://www.osc.state.ny.us/localgov/audits/towns/2015/phelps.pdf?utm_source=weeklynews20150809&utm_medium=email&utm_campaign=080515arelease

Bethpage Union Free School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/bethpage.pdf?utm_source=weeklynews20150809&utm_medium=email&utm_campaign=080515release

Commack Union Free School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/commack.pdf?utm_source=weeklynews20150809&utm_medium=email&utm_campaign=080515release

and the

Plainview-Old Bethpage Central School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/plainviewoldbethpage.pdf?utm_source=weeklynews20150809&utm_medium=email&utm_campaign=080515release

Public Authority agrees to pay legal expenses incurred as a result of its not responding to a Freedom of Information request

Public Authority agrees to pay legal expenses incurred as a result of its not responding to a Freedom of Information request

Source: Empire Center for Public Policy

The Metropolitan Transportation Authority [MTA] and the Empire Center for Public Policy [Center] have reached an out-of-court settlement in which the MTA acknowledged its failure to respond “in a timely manner” to a Freedom of Information Law (FOIL) request submitted to it by the Center.

MTA agreed to pay the legal costs and fees incurred by the Center in the course of settling the lawsuit brought by the Center to obtain MTA 2014 payroll records.* The Center said that it had initiated the legal action after more than four months of  “delays and missed deadlines” by MTA. 

The Center alleged that although some MTA units provided payroll records after lengthy delays, the MTA’s New York City Transit Authority failed to answer the  Center’s “appeal of denial,” the last avenue of recourse to exhaust its administrative remedy, before initiating the legal action.

The payroll data are posted and updated annually at http://seethroughny.net/, the Empire Center’s “transparency website.”

* Empire Center for Public Policy v Metropolitan Transportation Authority, New York City Transit Authority, Supreme Court, Kings County, Docket 6681/2015