A school board member seeking the removal of another member must demonstrate willful misconduct or neglect of duty of the part of the member

A school board member seeking the removal of another member must demonstrate willful misconduct or neglect of duty of the part of the member

Matter of Powell and Elliott, Decisions of the Commissioner of Education, Decision 16,216

Willa Powell, a member of the Board of Education of the Rochester City School District asked the Commissioner to remove another member of the board, Cynthia Elliott, alleging that Elliott had “willful and substantive disclosure of confidential information” acquired in the course of her official duties to a newspaper.

The Commissioner denied Powell’s application.

The Commissioner explained that a member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.

To be considered willful, the actions of the individual must have been intentional and with a wrongful purpose.

Here, said the Commissioner, Powell had not met her burden of proving that Elliott had engaged in behavior constituting a willful violation or neglect of duty requiring her removal from office to his satisfaction. As to the evidence advanced by Powell, the Commissioner ruled that the fact that the draft report released to the media “contains a code linked back to the copy intended for [Elliott], does not in itself prove that [Elliott] released it, much less that she intentionally released it.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume50/d16216.htm

The party alleging that an individual has changed his domicile has the burden of proving such a change of the individual’s “permanent place of abode”

The party alleging that an individual has changed his domicile has the burden of proving such a change of the individual’s “permanent place of abode”
Matter of Gigliotti v Bianco, 2011 NY Slip Op 02206, Appellate Division, Fourth Department

The City of Niagara Falls School District terminated the employment of Vincent F. Gigliotti on the grounds that he failed to comply with the District's residency policy, which requires District employees to be domiciliaries of the City of Niagara Falls. Supreme Court properly granted the petition.

It is well established that "domicile means living in [a] locality with intent to make it a fixed and permanent home." As the Court of Appeals said in Matter of Newcomb, 192 NY 238, "For a change to a new domicile to be effected, there must be a union of residence in fact and an absolute and fixed intention to abandon the former and make the new locality a fixed and permanent home."

An individual may have but one domicile at time, i.e., his or her permanent place of abode, which continues until he or she has acquired a new one and any party alleging a change in an individual’s domicile “has the burden to prove the change by clear and convincing evidence."

In contrast, an individual may have multiple places of residence simultaneously, i.e., two or more residences in the same or at different geographical locations in which he or she may, from time to time, live, but only one such residence is his or her domicile.

According to the decision, the Gigliotti, a lifelong resident of Niagara Falls, divorced and while he was temporarily laid off from his position, remarried. Gigliotti and his wife, who owned a home in Ransomville New York, agreed that Gigliotti would continue to live in Niagara Falls with his ailing mother while his spouse would continue to live in her home in Ransomville.

The evidence considered by the Appellate Division in determining Gigliotti’s domicile included Gigliotti’s listing his Niagara Falls address on his federal income tax return forms, his New York State driver's license, his marriage certificate, and his bank and credit statements. In addition, the court noted that Gigliotti’s personal belonging remained at his residence in Niagara Falls, “although he keeps a set of golf clubs and some clothing at his wife's residence in Ransomville.”

The Appellate Division, after considering the evidence, determined that the District’s conclusion that Gigliotti had changed his domicile from Niagara Falls to Ransomville was arbitrary and capricious.

Significantly, the court commented that although the District did not conduct a hearing before terminating Gigliotti’s employment, such a hearing was not "required by statute or law," citing Colton v Berman, 21 NY2d 322 Assuming that the District had provided Gigliotti with an opportunity to show that he or she satisfied the District’s requirement regarding domicile, the problem here was that the court disagreed with the District’s conclusion that Gigliotti was not domiciled in Niagara Falls.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02206.htm
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Protected speech vs. whistle blowing

Protected speech vs. whistle blowing

Ringle v Onondaga County, 267 AD2d 1088

The Ringle decision by the Appellate Division, Fourth Department, addresses a number of important issues concerning the limits, if any, on the right of a public employee to publicly “to blow the whistle” on his or her employer.

The court’s conclusion: a public employee’s right to “blow the whistle” on his or her employer of his or her superiors is not absolute.

David Ringle and William R. Sawyer sued Onondaga County, contending that the county had retaliated against them for “whistle blowing” in violation of (1) their Constitutional right to free speech and (2) Section 75-b of the Civil Service Law.

Both Ringle and Sawyer alleged that they were unlawfully dismissed or constructively discharged from their positions as a result of their communicating with other government agencies and the media concerning alleged inappropriate activities in the Onondaga County Laboratory (OCL) and Medical Examiner’s Office (MEO) and inappropriate conduct by their supervisor, the Onondaga County Medical Examiner.

Constitutionally protected rights

The Appellate Division first considered the Constitutional free speech and civil rights claims under 42 US 1983 advanced by Ringle and Sawyer.

After noting that “it is well established that a governmental entity may not discharge or retaliate against an employee based on that employee’s exercise of the right of free speech,” the Appellate Division pointed out that:

1. The “Pickering test” [Pickering v Board of Education, 391 US 563] is used to determine if a public employee has been unlawfully dismissed from his or her employment for “engaging in speech.” This test balances the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in providing efficient service to the public.

2. Consideration must be given to whether the speech to which the employer objects “impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise”

3. The greater a “confidential relationship” and the “policymaking function” of the speaker, the greater the State’s interest in terminating the employee for expressions against the employer’s interests and the lesser the employee’s First Amendment rights.

According to the decision, Ringle’s and Sawyer’s comments concerning “mismanagement by the Medical Examiner and inappropriate activities in the OCL and MEO may fairly be categorized as a matter of public concern.”

The Appellate Division, however, found that both Ringle and Sawyer held positions requiring confidentiality and which involved policymaking and public contact, elements that the court determined to be mitigating factors insofar as their free speech rights were concerned.

The court concluded that given their job responsibilities, “[c]ommon sense tells us that the expressive activities of [such] highly placed supervisory, confidential, policymaking, or advisory employee[s] will be more disruptive to the operation of the workplace than similar activity by a low level employee with little authority or discretion.”

The Appellate Division held that the record established that the comments made by Ringle and Sawyer were disruptive to the operation of the workplace, created disharmony among co-workers, interfered with their working relationships with their supervisor, and affected the performance of their duties.

Given these circumstances, the court said that it concluded that terminating Ringle and Sawyer, even in retaliation for their comments to the media and other government agencies concerning the operation of the OCL and MEO, did not violate their First Amendment rights or their civil rights under 42 USC 1983.

Civil Service Law Section 75-b whistle blowing claims

In determining Ringle’s and Sawyer’s rights under Section 75-b of the Civil Service Law, different considerations were found to be controlling.

First, the Appellate Division said that lawsuits under Section 75-b sought to vindicate personal rights in contrast to efforts to vindicate a public interest.

Section 75-b prohibits a public employer from retaliating against a public employee who “blows the whistle.” Subdivision 2(a) states that a public employer shall not dismiss or take other disciplinary or other adverse personnel action involving an individual’s public employment who discloses information to a governmental body involving a threat to public health or constitutes improper governmental action.

Alleged violations of Section 75-b are typically challenged by the individual bringing an Article 78 action [Article 78, Civil Practice Law and Rules.]. In filing such a petition, said Appellate Division, the individual seeks to vindicate a private rather than a public right. What private right? The right not to be dismissed or otherwise subjected to reprisals because of his or her disclosures to other governmental agencies of the media.

This conclusion meant that both Ringle and Sawyer had fallen into a procedural trap.

The Appellate Division said that because the “Civil Service Law Section 75-b causes of action they brought sought to vindicate only the individual interests of Ringle and Sawyer, ... they were properly dismissed by the lower court because Ringle and Sawyer failed to file a notice of claim as required by Section 50-a of the General Municipal Law Section and Section 52 of the County Law.*

In addition, the court pointed out that Section 75-b does not serve as a shield against disciplinary action being taken against an employee where there is a “separate and independent basis” for discipline the individual.

Finally, the Appellate Division observed that “by commencing actions pursuant to Civil Service Law Section 75-b, Ringle and Sawyer are barred from asserting any other State law cause of action related to the alleged retaliatory discharges.”

* This ruling implies that where an individual sues a school district or BOCES claiming he or she was dismissed or subjected to punitive action in violation of Section 75-b, he or she must file a notice of claim in accordance with Section 3813(1) of the Education Law.