ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

October 30, 2017

School board seeks to remove a sitting member from the board for alleged "official misconduct"


School board seeks to remove a sitting member from the board for alleged "official misconduct"
Decisions of the Commissioner of Education, Decision No. 17,204

The School Board [Board] held a special meeting at which it voted to pursue removal charges against a sitting member of the board [Member]* for alleged "official misconduct." Member did not attend the special meeting at which the Board approved three motions, all by a 4-2 vote, ** which, respectively:

1. Charged Member with official misconduct pursuant to Education Law §1709(18);

2. Appointed a board attorney to prosecute the charges; and

3. Designated an attorney to serve as a hearing officer for the removal hearing.

Member was subsequently served with disciplinary charges that set out "twelve specifications of misconduct [that] alleged numerous incidents in which [Member], among other things, berated or verbally attacked district personnel, invaded the personal space of others, refused to comply with orders, improperly photographed personnel records and improperly destroyed a document."

In response, Member filed an appeal with the Commissioner of Education challenging the Board's action, contending:

[1] The Board "lacked sufficient votes to approve charges against [Member] because [the Board's President] ... was biased and, therefore, should have been disqualified from voting"; 

[2] "The charges do not allege official misconduct;" and

[3] [The charges] "[d]o not sufficiently identify specific factual details which would afford [Member] an opportunity to prepare a defense."

Addressing Member's argument that the Board "lacked sufficient votes to approve charges" because the Board President "was biased*** and, therefore, should have been disqualified from voting," the Commissioner first noted that "a distinction must be drawn between a board member’s vote to authorize removal proceedings (the “initiation level”) and his or her vote to sustain charges of official misconduct following a full and fair opportunity for the subject of such charges to refute them (the “final determination level”)"

Although "a board member harboring an 'adverse animus' should not be allowed to participate in the 'decision-rending' aspect of a removal proceeding," the Commissioner noted that Member cited "no authority indicating that this standard is applicable to a board member’s vote to initiate removal proceedings." In other words, a board member may participate in activities leading to, and making, the decision to file disciplinary charges against an individual but then he or she should recuse himself or herself from any and activities involving or related to going forward with the disciplinary action.

Accordingly, the Commissioner said that she found that Member had tried, and failed, to meet Member's burden of demonstrating that the Board President should have been disqualified at the initiation of disciplinary action level.

Turning to Member's allegation that the Charge and Specifications were defective, the Commissioner said she found no merit in Member's claim that the statement of charges is deficient. "On the record before me," said the Commissioner, Member was  "afforded sufficient due process to satisfy this requirement and found that "the statement of charges was sufficiently detailed so as to apprise [Member] of the alleged official misconduct which would be at issue at the hearing." In the words of the Commissioner, "[e]ach charge identified the date when the alleged conduct occurred and a specific description of the objectionable conduct.

Finding that Member's claims were "without merit," the Commissioner dismissed Member's appeal.

* Education Law §1709(18) authorizes the members of a Board "To remove any member of their board for official misconduct. But a written copy of all charges made of such misconduct shall be served upon him [or her] at least ten days before the time appointed for a hearing of the same; and he [or she] shall be allowed a full and fair opportunity to refute such charges before removal.

**  The decision notes that "[a]s relevant to this appeal," the Board President was one of the four board members who voted in favor of the motions.

*** In support of this contention, Member refereed to and submitted numerous newspaper articles and public statements detailing the acrimonious relationship between various board members and the superintendent.  In particular, Member complained of an incident in which the superintendent alleged that his vehicle had been vandalized, and the Board President allegedly told a fellow board member that he believed Member was responsible for the vandalism.  Member  further complained that the Board President told a reporter that Member had been a “headache” since Member took office and that Board President is referenced within some of the charges against Member.  The Board denies in its answer that the Board President speculated that Member damaged the superintendent’s vehicle and, in an affidavit, Board President generally averred  that he is not biased against Member.

The decision is posted on the Internet at:


October 28, 2017

Trends in arbitration


Trends in arbitration

On October 24, 2017, the United States Senate, by a 51-50 vote, approved H.J.Res. 111 providing for congressional disapproval under Chapter 8 of Title 5, United States Code, of the rule submitted by Bureau of Consumer Financial Protection relating to "Arbitration Agreements." 

The Joint Resolution, in effect, nullified a rule adopted by the Consumer Financial Protection Bureau prohibiting banks from mandating that consumers resolve disputes with the bank through arbitration.

The Bureau's rule regulated the use of arbitration agreements in contracts for specific consumer financial products and services and prohibited "the use of a predispute arbitration agreement to prevent a consumer from filing or participating in certain class action suits." The rule also requires consumer financial product and service providers to furnish the CFPB with particular information regarding arbitrations."

In contrast, on October 26, 2017, a California appellate court handed down its decision in Baxter v. Genworth North America Corp., [California Courts of Appeals, First Appellate District, Docket Number A144244, ], sustaining a lower court's ruling that held that a employment agreement constituted  “procedural unconscionability.”

Genworth had acquired another company, AssetMark, and Maya Baxter, as a condition of continue employment by Genworth, was required to agree to resolving any dispute with Genworth through its "Resolve Employee Issue Resolution  Program," a four-step procedure culminating in arbitration of the matter[s].

Significantly, the court ruled that severing the offending provisions it found in Genworth's "Resolve Employee Issue Resolution  Program" was not an option because "the arbitration agreement is permeated by unconscionability."

October 27, 2017

Educator's unsatisfactory performance rating for the academic year supported by the "detailed descriptions" of educator's difficulties in the classroom in the record


Educator's unsatisfactory performance rating for the academic year supported by the "detailed descriptions" of educator's difficulties in the classroom in the record
2017 NY Slip Op 03891, Appellate Division, First Department

Supreme Court denied the CPLR Article 78 petition filed by a teacher [Petitioner]seeking a court order annulling the determination of New York City Department of Education [DOE], thereby sustaining DOE's unsatisfactory performance rating of Petitioner for the 2013-2014 school year.

The Appellate Division unanimously affirmed Supreme Court's ruling.

The court explained the DOE's determination that Petitioner's performance as a teacher of during the 2013-2014 school year was unsatisfactory was not arbitrary and capricious.

The Appellate Division pointed out that the determination was supported by Petitioner's  principal's detailed descriptions of Petitioner's difficulties in [1] developing learning objectives, [2] using lesson plans, [3] maintaining academic rigor, [4] meeting students' varying needs, [5] facilitating "accountable talk" through "higher order thinking questions," and [6] actively engaging students.

The Appellate Division also noted Petitioner's deficiencies including Petitioner's "persistent failure to improve despite the ongoing individualized professional development support she received."

The court also rejected Petitioner's contention that she was not provided with sufficient time or feedback to remedy perceived deficiencies as also "belied by the record."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_03891.htm

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The findings of fact made by a §75 hearing officer are given collateral estoppel effect in considering a terminated individual's application for unemployment insurance benefits


The findings of fact made by a §75 hearing officer are  given collateral estoppel effect in considering a terminated individual's application for unemployment insurance benefits
Matter of Schaefer (Commissioner of Labor), 2017 NY Slip Op 04335, Appellate Division, Third Department

The Claimant for unemployment insurance benefits had been terminated from her position as a school bus driver after having been served with disciplinary charges alleging  misconduct arising from her alleged [1] mismanagement of students on her bus during an incident, [2] being uncooperative with school district personnel during a field trip and [3] calling a parent of a student and requesting that the student wait for the bus at an unapproved bus stop without permission from the school district.

Following a disciplinary hearing held pursuant to Civil Service Law §75, the Hearing Officer sustained the charges [1] and [3] but dismissed the charge related to being uncooperative during the field trip. The Hearing Officer, considering that Claimant had received prior parental complaints, counseling memos from the school district and performance evaluations that were all critical of her student management skills, recommended that the appointing authority terminate Claimant.

The appointing authority accepted the Hearing Officer's findings and recommendation as to the penalty to be imposed and dismissed Claimant from her position.

Subsequently Claimants application for unemployment insurance benefits was denied by the Unemployment Insurance Appeal Board based its finding that Claimant had been terminated from her position with the school district due to "disqualifying misconduct.*

Claimant appealed the Board's determination. The Appellate Division sustained the Board's ruling, explaining that "[A]s claimant had a full and fair opportunity to litigate the issue of misconduct at the disciplinary hearing, the Board properly accorded collateral estoppel effect to the Hearing Officer's factual findings."

In addition, the court noted that the Board made its own its own determination as to whether Claimant's behavior, which included creating a hostile environment for a student on her bus and failing to follow a known policy of the employer, constituted disqualifying misconduct for unemployment insurance purposes.

Under the circumstances, the Appellate Division said it found that the Board's decision was supported by substantial evidence and "will not be disturbed." 

* N.B. As the Appellate Division noted in Matter of Wrzesinski [Roberts], 133 AD2d 884, not every discharge for cause in a disciplinary action is misconduct within the meaning of the Unemployment Insurance Law, which defines such disqualifying misconduct  conduct as “a willful and wanton disregard of the employer's interest.” 

The decision is posted on the Internet at:

October 26, 2017

An appointing authority's request for "any and all medical records relating to an employee's current state of health" may be too broad and not reasonably tailored to the scope of the relevant medical records


An appointing authority's request for "any and all medical records relating to an employee's current state of health" may be too broad and not reasonably tailored to the scope of the relevant medical records
2017 NY Slip Op 07129, Appellate Division, Second Department

This CPLR Article 78 was filed by an individual [Petitioner] seeking judicial review a determination by the appointing authority, a school district, that Petitioner was guilty of charges of insubordination and incompetence following a Civil Service Law §75 disciplinary hearing and that the appropriate penalty was termination.

The Appellate Division annulled the appointing authority's finding Petitioner guilty of insubordination and vacated the penalty imposed by the appointing authority. The matter was matter was remitted to the appointing authority for new consideration of the matter and the imposition of appropriate penalty, if any, under the circumstances.

The appointing authority had been advised that Petitioner had been admitted to a psychiatric facility after making threats of violence against his former spouse to his psychiatrist. Pursuant to Education Law §913, the appointing authority referred Petitioner to a psychiatrist for a medical examination to determine his mental capacity to continue working as a custodian and directed  Petitioner to provide the psychiatrist with "any and all medical records relating to [his] current state of health."

Petitioner attended the medical examination but did not bring any medical records, contending that production of such records was an invasion of his privacy. This failure resulted in Petitioner by charged with insubordination and incompetence.

The Appellate Division addressed a number of issues, finding:

1. A hearing pursuant to Civil Service Law §75 was the proper means to adjudicate the charge of incompetence in consideration of the fact that the appointing authority's  examining psychiatrist opined that Petitioner presented a potential danger to the students and fellow staff members and was thereby unfit to continue working at the elementary school.

2.  The appointing authority's determination to sustain the charge of insubordination based on Petitioner's failure to provide the requested medical records was not supported by substantial evidence.
The Appellate Division said that there was no evidence the Petitioner failed to attend the medical examination to which he was directed and submit to the medical examination. Neither, said the court, was that any evidence that Petitioner was requested to submit to any additional medical examination by the same or another psychiatrist.

As Education Law §913 does not mandate that medical records be produced as a requirement of submitting to a medical examination, the Appellate Division held that "under the circumstances of this case, the [appointing authority's] determination that Petitioner's failure to provide requested medical records constituted a failure to submit to the medical examination is not supported by substantial evidence."

Further, the court opined that "the appointing authority's request for 'any and all medical records relating to [Petitioner's] current state of health' was overly broad and not reasonably tailored in scope in that it sought medical records beyond those that were relevant to [Petitioner's] mental capacity to perform his duties."

Noting that the request for medical records "lacked any time or subject matter limitation," the Appellate Division concluded that the appointing authority "was in error "to the extent that it found that Petitioner was insubordinate "for his failure to comply with this unreasonable directive."

Finding that the penalty of termination of Petitioner's employment was based on the Board's adoption of the hearing officer's recommendation to sustain both the charge of insubordination as well as the charge of incompetence, the court said that the matter must be remitted to the appointing authority to give it the opportunity to consider the appropriate penalty to be imposed upon [Petitioner] in connection with the charge of incompetence, and the imposition of that penalty thereafter."

Editor's Note:

In situations such as the one confronting Petitioner, a number of disciplinary hearing officers have suggested that the employer consider that the is employee is incompetent within the meaning of §72 of the Civil Service Law, Leave for Ordinary Disability, rather than be deemed incompetent within the meaning of §75 of the Civil Service Law for the purpose of initiating disciplinary action.

Indeed, in Gooshaw v Village of Massena, 216 AD2d 819, the Appellate Division said that it is inappropriate to file disciplinary charges against an individual who is unable to report for work because of his or her conceded disability while in Penebre v Dzaluk, 51 AD2d 574, the Appellate Division ruled that §75 charges for misconduct should not have been served on the employee but that the employer should have proceeded under §72, Ordinary Disability Leave, instead.

The decision is posted on the Internet at:.


CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com