School district resident alleges members of the board of education and school officials and staff of "incompetent, unethical, inappropriate and illegal behaviors."

School district resident alleges members of the board of education and school officials and staff of "incompetent, unethical, inappropriate and illegal behaviors." 

Decisions of the Commissioner of Education, Commissioner's decision 17,393

In view of the variety issues addressed by the Commissioner in her deciding this appeal by a district resident and taxpayer of the Beacon City School District, the decision is set out below in its entirety.

Appeal of MELISSA RUTKOSKE, on behalf of CONCERNED PARENTS OF BEACON CITY SCHOOL DISTRICT from action of the Board of Education of the City School District of the City of Beacon regarding board practices.

Decision No. 17,393

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent^[1], Michael K. Lambert, Esq., of counsel

Elia, Commissioner:

Petitioner Melissa Rutkoske, a district resident and taxpayer, appeals on behalf of Concerned Parents of Beacon City School District (“Concerned Parents”) from various actions taken by the Board of Education of the City School District of the City of Beacon (“respondent board”), its school attorney and superintendent (collectively, “respondents”).

The appeal must be dismissed.

Petitioner Rutkoske asserts that Concerned Parents is a group of parents who support and endorse the instant petition.  Petitioner Rutkoske is an individual taxpayer and community member who resides within respondent board’s district.  In her verification of the petition, petitioner Rutkoske asserts that she is “the Petitioner on behalf of the Concerned Parents of the Beacon City School District.” 

According to petitioner, between the fall of 2014 and a board of education meeting which allegedly occurred on October 14, 2015, respondent board and its officials and staff committed various actions which petitioner characterizes as “incompetent, unethical, inappropriate and illegal behaviors [which] are ongoing and continuous.”  Petitioner cites numerous examples of such conduct; for example, petitioner states that respondent board and respondent’s attorney allowed a board meeting to continue even though the meeting room was over “fire code capacity”; that unethical personal relationships existed between respondent board’s staff, officials and individuals within the district; that personal affairs as well as business were conducted using the district’s email system; that improper gifts were made from a district official to an official of the Beacon Teacher’s Association (“BTA”); that respondent board’s administrative power was used improperly to assist in teacher promotion, teacher transfer, and student placement; and that the school attorney failed to properly investigate or review such alleged improper behaviors. 

Petitioner seeks “[i]nvestigation, audit, and oversight” by the New York State Education Department into the above allegations.  Petitioner further seeks an order “[d]irecting the [b]oard to remove the [superintendent] for cause” and to hire a new law firm to represent the district.

Respondents claim, inter alia, that petitioner’s allegations are without merit and stem from a personal vendetta harbored by petitioner Rutkoske.  Respondents assert that Concerned Parents “is, at best, an unincorporated association” which lacks standing to maintain the instant appeal.  Respondents claim that petitioner inappropriately gained access to district emails attached as exhibits to the petition.  Respondents also argue that petitioner failed to properly identify a respondent or respondents in the caption of the appeal, thus mandating dismissal for failure to join necessary parties.  Respondents further contend that the petition must be dismissed for lack of proper service and as untimely. 

Respondents additionally claim that the officer of the BTA of whom petitioner complains has resigned and, thus, any matters regarding this individual are moot. 

Respondents also assert that petitioner has failed to establish a clear legal right to the relief sought.  Respondents also object to the fact that the petition does not contain petitioner’s name, telephone number, or post office address as required by 8 NYCRR §275.4(a).

As an initial matter, by letter dated January 25, 2016, respondents object to petitioner’s reply, claiming that it contains new material and was not served on their attorney as required by §275.8(b) of the Commissioner’s regulations.  Petitioner’s affidavit of service indicates that the reply was served upon “the Clerk of the Board.”  As respondents note, the Commissioner’s regulations require that “all subsequent pleadings and papers shall be served upon the adverse party or, if the adverse party is represented by counsel, upon such party’s attorney” (8 NYCRR §275.8[b]).  Accordingly, I have not considered petitioner’s reply (Appeal of Reis and Argus, 51 Ed Dept Rep, Decision No. 16,335).

Concerned Parents lacks standing to bring this appeal.  As respondents note, there is no evidence in the record suggesting that Concerned Parents is an incorporated association.  Petitioner has merely attached to her petition a list of signatures allegedly belonging to district residents who “support” the instant petition.  An unincorporated association lacks standing to maintain an appeal under Education Law §310 (Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,282; Appeal of Torres, 46 id. 301, Decision No. 15,515).  Moreover, an individual representative of an unincorporated association has no greater standing to maintain an appeal pursuant to Education Law §310 than the association itself (Appeal of Beilman, 38 Ed Dept Rep 644, Decision No. 14,109; Appeal of Ben-Reuben, et al., 33 id. 299, Decision No. 13,055).  Therefore, neither Concerned Parents nor petitioner Rutkoske, as an individual representative of such unincorporated association, may maintain the instant appeal.

However, although not entirely clear from the petition, to the extent petitioner Rutkoske intends to bring this proceeding on her own behalf as a district resident and taxpayer, she has standing to do so to the extent she is aggrieved.^[2]  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  To the extent petitioner Rutkoske attempts to assert claims on behalf of other parents, however, she lacks standing to do so.  (Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874). 

The appeal must be dismissed for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  As described herein, petitioner raises claims and seeks relief that, if granted, would adversely affect, at a minimum, the board, the superintendent and the school attorney.  However, she has failed to name any of them in the caption of the appeal. Indeed, the caption in this matter as submitted by petitioner Rutkoske reads as follows:

In the Matter of Concerned Parents of Beacon City School District

requesting New York State Education oversight due to

unethical, illegal and inappropriate conduct of the leadership of

the Beacon City School District.

Moreover, petitioner has not personally served the board, superintendent or school attorney.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).  The record indicates that the instant appeal was served only upon the district treasurer.  Although petitioner’s affidavit of service indicates that the district treasurer is authorized to accept service on behalf of the district, the treasurer has submitted an affidavit herein whereby she attests that she is not authorized to accept service on behalf of the district. 

On this record, therefore, in light of the conflicting affidavits, I find that the evidence regarding service of the petition on respondent is in equipoise and petitioner has not met her burden of proving that proper service was made on respondent board (see Appeal of a Student with a Disability, 54 Ed Dept Rep, Decision No. 16,780; Appeal of Catalan, 47 id. 176, Decision No. 15,660; Appeal of M.D., 47 id. 51, Decision No. 15,623).

Moreover, the record contains no evidence of personal service upon the superintendent and school attorney.  Therefore, because each individual and entity would clearly be affected by a determination in petitioner’s favor, the appeal must be dismissed for failure to join necessary parties.

To the extent petitioner seeks an order directing respondent board to remove the superintendent, such request must also be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  I take administrative notice of information published on the district’s website indicating that Barbara Walkley is no longer the district’s superintendent.  Therefore, subsequent events have rendered petitioner’s request academic (see Appeal of Budich and MacDonald, 54 Ed Dept Rep, Decision No. 16,774).

Furthermore, petitioner’s request for the removal of the school district’s attorney and the hiring of a new law firm to replace him amounts to a request that I remove the school attorney pursuant to Education Law §306.  It is well established, however, that a school attorney is not an officer of the district and, therefore, not subject to removal from office by the Commissioner of Education (Application of Balen, 40 Ed Dept Rep 250, Decision No. 14,474; Application of Rojek and Spadone, 24 id. 434, Decision No. 11,453; Application of Sterling, 23 id. 294, Decision No. 11,223).  Accordingly, the appeal must be dismissed against the school attorney.

Finally, to the extent petitioner seeks an investigation, an audit, and/or the oversight by the New York State Education Department “into the behaviors of” the board and various individuals, including the superintendent and school attorney, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,223; Appeal of Huffine, 48 id. 386, Decision No. 15,893).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

^[1]As described more fully below, the original caption submitted by petitioner in this matter identified only the “leadership of the Beacon City School District.”  As a result, respondent’s counsel asserts that, in “an exercise of caution,” the verified answer is submitted on behalf of the “leadership of the Beacon City School District.”

^[2]In light of this determination, references below to “petitioner” refer to petitioner Rutkoske, the sole petitioner with standing to maintain the instant appeal.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17393

Recent disciplinary findings and penalty recommendations of OATH Administrative Law Judges

Recent disciplinary findings and penalty recommendations of OATH Administrative Law Judges

Source: New York City Office of Administrative Trials and Hearings

Employee's "whistleblower defense" rejected by Administrative Law Judge

OATH Index No. 1883/17

A New York City claims examiner raised a Civil Service Law §75-b whistleblower defense to misconduct charges filed against the individual

Administrative Law Judge Noel R. Garcia found the employee did not establish that the sole motivation for petitioner’s charges was to retaliate against the employee for the complaints that he had filed.

Rather, the ALJ found that the persons who investigated and prosecuted the disciplinary matter had an independent and good faith basis to file the charges.

Among Judge Garcia's findings:

1. Petitioner proved respondent took 288 days of unauthorized absence;

2. The individual operated of a personal watercraft in Florida while on leave for a purported injury; and

3. The employee submitted false documents during the hiring process that indicated that He was employed as an Assistant District Attorney during a period when he, in fact, worked as a paralegal.

Penalty recommended by the ALJ: termination of employment.  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1883.pdf

Only one of several disciplinary charges filed against the employee sustained by proof submitted by the appointing authority at the disciplinary hearing

OATH Index No. 1958/17

In response to complaints filed against a New York City correction officer, the correction officer was charged with aggravated harassment, violating EEO policies, failing to maintain professional boundaries with a female recruit and suppressing the recruit's report about his conduct.

OATH Administrative Law Judge Kara J. Miller found the evidence inconclusive on most charges because the witnesses for both sides had credibility issues, making it difficult for the appointing authority to sustain its burden of proof.

Judge Miller sustained only the charge that the officer failed to maintain professional boundaries by referring to the complainant as “redbone”.

A five-day suspension without pay was recommended.  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1958.pdf

Placing employee on "emergency involuntary leave" as authorized by CSL §72.5  sustained

OATH Index No. 1750/18

An employee challenged his placement on emergency involuntary leave for unfitness to perform his job duties due to mental disability pursuant to §72.5 of the Civil Service Law.

Co-workers credibly testified about the employee’s sudden, unprovoked outbursts, his verbal altercations with women who worked in his unit and his repeated, unsupported claims that the women are sexual predators who physically and verbally harassed him.

A psychiatrist who examined the employee found the employee was unfit because he could not get along with his co-workers.

ALJ Zorgniotti found petitioner proved that the employee was unfit and that petitioner properly placed him on emergency pre-hearing leave.  

The decisions is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1750.pdf

Determining if a dispute between a public employer and an employee organization is arbitrable

Determining if a dispute between a public employer and an employee organization  is arbitrable
Matter of City of Long Beach v Long Beach Professional Fire Fighters Assn., Local 287, 2018 NY Slip Op 03356, Appellate Division, Second Department

The City of Long Beach [Long Beach] filed a petition pursuant to CPLR Article 75 seeking a permanent stay of a demand for arbitration submitted by the Long Beach Professional Fire Fighters Assn., Local 287 [Local 287].

Local 287 sought arbitration alleging that Long Beach had violated provisions set out in a collective bargaining agreement* negotiated by the parties addressing [1] the layoff of certain Long Beach firefighters and [2] the terms and conditions of employment with respect to certain paramedics when Long Beach "unilaterally set the terms of employment" for certain paramedics when they were hired.

Initially the Appellate Division observed that a public employer has wide latitude to negotiate the terms of the agreements, and can agree to submit disputes to arbitration in "the absence of plain and clear prohibitions in statute or controlling decisional law, or restrictive public policy" and, Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563 noted that although the Taylor Law reflects New York's " strong'" policy favoring arbitration, this principle is not without limits.

New York courts use a two-part test to determine if a dispute is arbitrable, first asking if "there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." In the absence of any such prohibition, the court then inquires as to whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

A court must stay arbitration where it can conclude, upon the examination of the parties' contract and any implicated statute on their face, "that the granting of any relief would violate public policy."

Turning to Local 287's claim that Long Beach's decision regarding layoffs of the firefighters was subject to arbitration the Appellate Division said that Civil Service Law §80(1), Suspension or demotion upon the abolition or reduction of positions, provides that a public employer has the nondelegable discretion to determine—for reasons of economy, among others — what its staffing and budgetary needs are in order to effectively deliver uninterrupted services to the public. Accordingly, and in the absence of bad faith, fraud, or collusion, that discretion "is an undisputed management prerogative" for the public's benefit, and cannot be altered or modified by agreement or otherwise.

Thus, said the Appellate Division, arbitration of the claim regarding the layoffs of the firefighters would violate public policy.

Turning to Local 287's claims relating to the terms and conditions of employment of the paramedics, the court opined that "no public policy precludes arbitration of those claims." Further, the court noted that the arbitration provision in the CBA "permits arbitration of such claims."

* Civil Service Law Article 14, typically referred to as the "Taylor Law."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03356.htm

Unsatisfactory rating voided because employee's "performance review" failed to comply with the employer's own procedures and thus undermined the integrity of the process

Unsatisfactory rating voided because employee's "performance review" failed to comply with the employer's own procedures and thus undermined the integrity of the process

Joyce v City of New York, 2018 NY Slip Op 03433, Appellate Division, First Department

The Appellate Division annulled the determination of respondent New York City Department of Education [DOE] sustaining the "unsatisfactory" rating for the 2010-2011 academic year give to John Joyce, a tenured teacher.

The court said that the record demonstrates "deficiencies in the performance review process" that resulted in Mr. Joyce being given an unsatisfactory rating for the 2010-2011 academic year.

Citing Matter of Gumbs v Board of Educ. of the City Sch. Dist. of the City of N.Y., 125 AD3d 484, and Matter of Richards v Board of Educ. of the City Sch. Dist. of the City of N.Y., 117 AD3d 605, the Appellate Division noted that these deficiencies "were not merely technical, but undermined the integrity and fairness of the process."

Mr. Joyce had received a satisfactory rating for the previous academic year and, in contravention of its own procedures, DOE failed to place him on notice that he was in danger of receiving an unsatisfactory rating for the 2010-2011 academic year until after April 28, 2011.

Although DOE's procedures required that tenured teachers in danger of receiving an unsatisfactory rating have "formal observations including a pre-observation and post-observation conference by the principal ... as part of a prescriptive plan to improve their teaching," Mr. Joyce received only one formal observation which took place one week before the end of the academic year and was not part of a prescriptive plan to improve his performance as a teacher.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03433.htm

Report Reviews Impact of Taylor Law

Duly noted:

The Empire Center has issued a 50th anniversary update of its seminal 2007 report on New York’s landmark Taylor Law, which governs labor relations in state and local government, 50 Years Later, Report Reviews Impact of Taylor Law. 

The report is posted on the Internet at:

https://www.empirecenter.org/publications/taylor-made/?utm_source=Empire+Center+emails&utm_campaign=5422cbfc52-EMAIL_CAMPAIGN_2018_05_29_07_25&utm_medium=email&utm_term=0_6cc7720848-5422cbfc52-290604285