Board member alleged to have made false statements on his application for membership

Administrative Law Judge Jonathan Fogel recommended dismissing charges against a community board member because the community board did not prove that the member had made two false statements on his application to become a board member. 

ALJ Fogel declined to dismiss the charges on procedural grounds, however, finding that the charges were properly brought under the New York City Charter and although the application predated the member's service as a board member, it is part of the community board member's personnel file and "his membership on the board".  

Brooklyn Community Board 13 v. Greenberg, OATH Index No. 1574/22

Challenging the holding of a scheduled union election

Supreme Court granted plaintiffs' petition to enjoin AFSCME's Local 983 from holding the duly scheduled election and directed Local 983 to provide a plan, to be reviewed by Plaintiffs for a future election within 30 days. The Appellate Division unanimously reversed the Supreme Court's ruling and dismissed Plaintiff's petition.

The Appellate Division opined that Supreme Court had "improvidently exercised its discretion to enjoin [Local 983] from proceeding with their scheduled election," explaining that as Local 983 is an unincorporated association, the Plaintiff's petition fails because it does not plead "that each individual union member authorized or ratified the [allegedly] unlawful actions", citing Matter of Agramonte v Local 461, Dist. Council 37, Am. Fedn. of State County and Mun. Empls., 209 AD3d 478, and other authorities including Martin v Curran, 303 NY 276.

Further, said the Appellate Division, "even had the Martin requirement not applied, [Plaintiffs] failed to exhaust their contractual remedies before bringing this action," noting  AFSCME's constitution prohibits members from instituting a civil action without first availing themselves of the remedies in its constitution. The remedies available to Plaintiffs' include a procedure to challenge the conduct of an election so that a protesting party has an opportunity to be heard.

The decision also points out that provisions of AFSCME's constitution allow petitioners to "appeal an adverse determination to a judicial panel, then to a full judicial panel, and then again to an international convention." In addition, the Appellate Division commented that the Union's constitution "also gives the union the authority to set aside an election outcome and hold a new election upon a finding of a violation."

In the words of the Appellate Division "Petitioners have not advanced a sufficient reason to excuse them from exhausting that remedial process."

Click HERE to access the Appellate Division's decision posted on the Internet.

Selected key points made in recent decisions of the Commissioner of Education

Improper service of an appeal to the Commissioner of Education

The Commissioner dismissed this Education §310 appeal for improper service, noting that §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). 

As here relevant, the petition was sent by U.S. mail to respondent’s district clerk.  The Commissioner observed that service by U.S. mail "does not constitute valid service of a petition pursuant to Education Law §310" and, therefore, "the appeal must be dismissed."*

The Commissioner then opined that "Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief." The Commissioner also noted that "As [the school district correctly noted], there is no requirement that a board of education conduct a nationwide search for a superintendent."

Petitioner, said the Commissioner, has otherwise failed to demonstrate that the school district acted in an arbitrary or capricious manner in appointing its new superintendent. (see Appeal of S.E., 51 Ed Dept Rep, Decision No. 16,352; Appeal of J.P., et al., 42 id. 226, Decision No. 14,832).

* The Petitioner’s affidavit of service contained the following notation:  “Affidavit of service by mail [s]ince the school district is on Spring Break this week.”  This, said the Commissioner, "does not establish that district offices were closed or that [Petitioner] was otherwise prevented from effectuating personal service."

Click HERE top access the Commissioner's decision.

Determining seniority in the course of abolishing a position

In this appeal the Petitioner appealed the action of the Board of Education in abolishing her position of library media specialist, joining several named individuals as "necessary parties." The Commissioner sustained Petitioner's appeal "to the extent indicated."

Petitioner claimed tenure in the district as a library media specialist.  On June 18, 2020, the school board adopted a resolution abolishing, among others, a library media specialist position, effective June 30, 2020.  The school district then identified Petitioner as the least senior person in the tenure area of library media specialist. 

Addressing the merits of the Petitioner's appeal, the Commissioner observed that at the time of a probationary appointment or appointment on tenure, a board of education must identify “the tenure area or areas in which [a] professional educator will devote a substantial portion of [her or] his time”, i.e. assigned to any tenure area to which she devotes a “substantial portion” of her time, defined as “40 percent or more of [her] total time spent … in the performance of [her or] his duties …” (see 8 NYCRR 30.1 [g]).

The Commissioner opined that "Given the limited and ambiguous information in the record, it is impossible to determine which employee’s services should have been discontinued." The Commissioner then admonish [the appointing authority] to comply with Part 30 of the Rules of the Board of Regents in appointing individuals to tenure-eligible positions. "It is unacceptable that [appointing authority] was unable to produce a single document establishing the tenure area(s) to which [Petitioner] and the named necessary parties were appointed] noting that the failure appointing authority "to identify this information, which is required by 8 NYCRR 30-1.3, now necessitates a recreation of its institutional thought process from several years ago—all while the employment of one or more people hangs in the balance" noted the Commissioner.

Click HERE to access the text of the Commissioner's decision.