“Tebowing” and other activities by students leading to disciplinary suspensions

“Tebowing” and other activities by students leading to disciplinary suspensions

Source: On Board, a publication of the New York State School Boards Association

“Tebowing” that resulted in hallway congestion and other unusual reasons for initiating student disciplinary actions leading to suspensions are described in an article published in the July 2, 2012 edition of the New York State School Boards Association’s publication On Board.

Among other incidents leading to suspensions: Growing long hair for charity [in violation of the school’s dress code] and “Chivalry” [holding an exterior door open for an adult known to the student in violation of security procedures].

The article is posted on the Internet at:

http://www.nyssba.org/index.php?src=news&submenu=news_media&srctype=detail&category=On%20Board%20Online%20July%202%202012&refno=2213

An administrative decision made in violation of lawful procedure, affected by an error of law, that is arbitrary and capricious or that is an abuse of discretion is fatally defective

An administrative decision made in violation of lawful procedure, affected by an error of law, that is arbitrary and capricious or that is an abuse of discretion is fatally defective

Malverne Volunteer Fire Dept. v New York State Off. of Fire Prevention & Control, 2012 NY Slip Op 05174, Appellate Division, Second Department

The New York State Fallen Firefighters Memorial Appeals Committee denied a request to include former Malverne Volunteer Fire Department firefighter Paul Ryan Brady's name on the New York State Fallen Firefighters' Memorial Wall. Malverne appealed, contending that the Committee’s decision was not made after a quasi-judicial hearing it claimed was required by the Committee’s procedures.

Although Supreme Court dismissed Malverne’s petition, the Appellate Division “reversed, on the law” and remanded the matter to Supreme Court “to direct the New York State Fallen Firefighters Memorial Appeals Committee to include Paul Ryan Brady's name on the New York State Fallen Firefighters' Memorial Wall.”

The Appellate Division explained that in this instance it must consider whether the Committee’s determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion.

The test applied in such cases: “did the action taken by the agency have a rational basis." Citing Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, the Appellate Division said that a court will overturn such action only "where it is taken without sound basis in reason' or regard to the facts'" or where it is "arbitrary and capricious."

In this instance, said the court, the determination of the Committee that the death of firefighter Brady was not a "line of duty death" within the selection criteria for inclusion on the New York State Fallen Firefighters Memorial Wall was arbitrary and capricious and did not have a rational basis in the record.

Indeed, said the court, “The record demonstrates that, under the applicable selection criteria, Paul Ryan Brady died while engaged in an action that was required, authorized or recognized by law, rule, regulation, [or] condition of employment.’"

Accordingly, the Appellate Division ruled that Supreme Court should have [1] granted Malverne’s petition, [2] annulled the Committee’s determination and [3] directed the appeals committee to include Brady's name on the New York State Fallen Firefighters' Memorial Wall

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05174.htm

Statute of limitations no bar to bring disciplinary charges when the allegations claim “continuous incompetency”

Statute of limitations no bar to bring disciplinary charges when the allegations claim “continuous incompetency”

Canna v Town of Amherst, 55 AD3d 1269

Town of Amherst Superintendent of the Wastewater Treatment Facility Anthony R. was terminated from his employment following a hearing conducted pursuant to Civil Service Law §75 (1) based on charges alleging incompetence in the supervision of the operation of the facility.

Canna appealed, contending, among other things, that the Section 75 hearing officer “was biased against him;” that the Town Board’s resolution to terminate his employment was not supported by the required number of valid votes; that the charges were barred by the 18-month statute of limitations set out in Section 75(4) of the Civil Service Law; and that the penalty imposed, dismissal, was “shocking to one’s sense of fairness.”

The Appellate Division rejected Canna’s claim the hearing officer was biased, holding that Canna failed to present "a factual demonstration to support the allegation of bias and proof that the outcome [of the hearing officers findings and recommendation] flowed from it."

As to the validity of the Board’s vote, the court rejected Canna’s claim that the Board’s vote was tainted by the statements by one Town Board member to the effect that it would be difficult for Canna to resume his position as superintendent of the Facility after all that had transpired. Further, said the Appellate Division, “The record establishes that he further stated that, although [that member of the Board] did not believe that [Canna] was ‘single handedly’ responsible for all of the problems at the Facility, he believed that the evidence establish that [Canna] was incompetent, and incompetence is a valid basis for termination.”

Addressing the other aspects of Canna’s appeal, the Appellate Division said that the disciplinary proceeding against Canna was not time-barred based on the 18-month limitations period set forth in Civil Service Law §75(4) because his “alleged incompetency was continuous” and that the penalty imposed upon him, dismissal, was not so disproportionate to the offense as to be shocking to one's sense of fairness, citing Pell v Board of Education, 34 NY2d 222.

The full text of the decision is posted on the Internet at

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07300.htm

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Rebutting the statutory presumption that an “on-the-job” injury or death was job-related shifts burden of showing job-relatedness to the claimant

Rebutting the statutory presumption that an “on-the-job” injury or death was job-related shifts burden of showing job-relatedness to the claimant
Petrocelli v Sewanhaka Cent. School Dist., 54 AD3d 1143

Section 21 of the Workers’ Compensation Law sets out “a presumptions of compensability when an unwitnessed or unexplained death occurs during the course of one's employment.” The presumptions “in the absence of substantial evidence to the contrary are:

1. That the claim comes within the provision of this chapter;

2. That sufficient notice thereof was given;

3. That the injury was not occasioned by the willful intention of the injured employee to bring about the injury or death of himself or of another;

4. That the injury did not result solely from the intoxication of the injured employee while on duty.

5. That the contents of medical and surgical reports introduced in evidence by claimants for compensation shall constitute prima facie evidence of fact as to the matter contained therein.

However, these are rebuttable presumptions and if there is substantial evidence to the contrary, the claimant has the burden of establishing that the injury or death is causally related to employment.

Denise Petrocelli’s husband died while coaching a high school basketball game. Mrs. Petrocelli filed a claim for workers' compensation death benefits.

The death certificate listed as Mrs. Petrocelli’s husband’s cause of death as “a spontaneous rupture of the splenic artery with hemoperitoneum, due to portal hypertension complicating cirrhosis of the liver and chemotherapy for treatment of a primitive neuroectodermal tumor of the right adrenal gland.” A Workers' Compensation Administrative Law Judge ruled that the Workers' Compensation Law §21 presumption of compensability had been rebutted by the statements of the cause of death set out in the death certificate. Mrs. Petrocelli was directed to produce evidence of causally related death. Once this was done, the employer would have an opportunity to produce a consultant's report on the same issue.

The Workers' Compensation Board affirmed the ALJ’s finding and Mrs. Petrocelli appealed.

The Appellate Division sustained the Board’s determination, ruling that “irrefutable proof excluding all . . . conclusions other than that offered by the employer that the accidental injury was not work related” is not required to rebut a Workers’ Compensation Law Section 21 presumption.

In this instance, said the court, evidence contained in the death certificate indicates that Mrs. Petrocelli’s husband’s death was directly caused by factors not related to his work. Accordingly, the court declined to disturb the Board's finding that the Section 21 presumption was overcome, requiring Mrs. Petrocelli to come forward with proof of a causally related death.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07058.htm

Workers’ compensation benefits discontinued upon individual’s retirement based on a finding that he had “removed himself from the labor market”

Workers’ compensation benefits discontinued upon individual’s retirement based on a finding that he had “removed himself from the labor market”

Richardson v Schenectady City School Dist., 2012 NY Slip Op 05230, Appellate Division, Third Department

Dana Richardson objected to a Workers' Compensation determination that he had voluntarily removed himself from the labor market and denied his claim for workers' compensation benefits.

Richardson, a health teacher for the Schenectady City School District, sustained a variety of compensable injuries, including injuries to his head and back, while breaking up a fight between students in February 2006. In December 2008, he submitted a letter to the school district advising it that he would be retiring effective June 2009.

After the effective date of Richardson’s retirement, the school district and its workers' compensation carrier moved to suspend benefits based upon Richardson's “voluntary withdrawal from the labor market”. Ultimately, Workers' Compensation ruled that Richardson had, indeed, withdrew from the labor market and as a result was no longer entitled to awards upon his retirement in 2009.

The Appellate Division affirmed Workers' Compensation’s decision, explaining that “Whether [Richardson’s] retirement constituted a voluntary withdrawal from the labor market presented a factual issue for the Board, and its determination will not be disturbed if supported by substantial evidence.” In this instance Workers' Compensation relied on the report of a physician who performed an independent medical examination and opined that, while Richardson suffered from a moderate to marked disability, he was capable of working in a modified duty capacity.

Another element that was considered: Richardson’s letter informing the school district indicated that “he was taking advantage of a very favorable retirement incentive.” Richardson did not indicated that his physical disabilities played a role in his decision to retire and, in addition, he testified that he never discussed retirement with his doctors, did not advise the employer that he was retiring due to his disabilities and never asked for an accommodation to return to work within his restrictions.

Although there was “evidence that may have supported a different result,” the Appellate Division said that the determination was supported by substantial evidence and thus would not be disturbed.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05230.htm

Treating groups in the collective bargaining unit differently does not always constitute to a violation of the union’s duty of fair representation

Treating groups in the collective bargaining unit differently does not always constitute to a violation of the union’s duty of fair representation

Calkins v Police Benevolent Assn. of N.Y. State Troopers, Inc., 55 AD3d 1328

Thomas E. Calkins and five other retired State Troopers were among some 72 retirees rehired as "Special Troopers" on a temporary basis in 2001. They commenced this lawsuit in an effort to recover wage and benefit increases negotiated by the Police Benevolent Association of New York State Troopers [PBA] pursuant to a collective bargaining agreement (CBA) between it and the State of New York

Calkins charged the PBA violated its duty of fair representation as the exclusive bargaining agent for the Special Troopers as a result of the PBA excluding the Special Troopers from expanded duty pay and increases in longevity pay in an effort to obtain a substantial increase in longevity pay for the other State Troopers in the unit represented by the PBA. The Special Troopers’ exclusion was reflected in Memorandum of Agreement signed by the PBA and the State and subsequently ratified by PBA’s membership.

Supreme Court granted the PBA’s motion for summary judgment dismissing the Calkins' action and Calkins appealed.

The Appellate Division commence its review of the appeal by noting that in order “To establish that a bargaining agent breached its duty of fair representation, a plaintiff must show that the bargaining agent's conduct was arbitrary, discriminatory, or in bad faith,” citing Civil Service Bar Assn., Local 237 v City of New York, 64 NY2d 188. To do so, said the court, the complaining party must provide substantial evidence of fraud, deceitful action, or dishonest conduct, or evidence of discrimination that is intentional, severe, and unrelated to legitimate objectives of the collective bargaining representative.

Here, however, the fact that the PBA treated the Special Troopers differently from other State Troopers represented by it in its negotiations for a new collective bargaining agreement does not amount to a violation of the duty of fair representation. The court found that the PBA “met its initial burden on the motion by establishing that it undertook ‘a good-faith balancing of the divergent interests of its membership and [chose] to forgo benefits which may be gained for one class of employees in exchange for benefits to other employees.’"

Further, said the Appellate Division, the record demonstrates that the PBA did not misrepresent its negotiating position. A "Contract Update" memorandum sent to its members expressly stated that the Special Troopers were excluded from "all new monetary aspects of the contract."

As the record before it did not demonstrate that the PBA’s conduct was arbitrary, discriminatory or in bad faith, the Appellate Division sustained the lower court’s granting the PBA’s motion for summary judgment.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07368.htm

Simple majority vote required for most personnel actions taken by a Board

Simple majority vote required for most personnel actions taken by a Board

Inquiry from a NYPPL reader

From time to time a reader will submit a question concerning a personnel matter that may be of general interest to the readers of New York Public Personnel Law. In this instance the reader submitted an inquiry regarding the termination and reinstatement of police officers or firefighters by a Town or Village Board. The question: "Does a Town Board or a Village Board need a 'super majority' to either terminate or reinstate a police officer or firefighter?"

In your editor's opinion, unless there is a law, rule, regulation or a provision in a collective bargaining agreement providing otherwise, generally all that is required to appoint, suspend, terminate or reinstate an individual to a position is a simple majority of a board when a board is the “appointing authority.”

For example, Education Law Section 2573(1)(a) permits the termination of a probationary teacher "at any time during [the individual's] probationary period, on the recommendation of the superintendent of schools, by a majority vote of the board of education" while Education Law Section 2509(2) states that a majority vote of a school board for tenure is required to grant a probationary teacher tenure.

With respect to the granting of tenure by a board of education, the Commissioner of Education rejected the theory that a majority voting against tenure was required to deny a teacher tenure in the district [Decisions of the Commissioner of Education Decision No. 14,337]. In other words, unless there is an affirmative vote by a majority of the members of the school board to grant the individual tenure, he or she cannot claim tenure except in those relatively rare situations where the individual attains tenure by acquiescence or estoppel by operation of law.

As to a “super-majority” vote requirement, in some instances this is provided for by statute.

In Headriver, LLC v. Town Bd. of Town of Riverhead, 2 N.Y.3d 766, the Court of Appeals pointed out that where a planning commission recommends that the application for a special use permit be denied, General Municipal Law §239-m requires a “super-majority” vote by the town board in order to overturn the commission’s recommendation.

In Headriver, following a public hearing, the Board voted 3-2 to grant the special use permit. As the statutory super-majority requirement [i.e., a 4-1 vote], the commission's recommendation had not been overturned by the Board as the statute required “a vote of a majority plus one of all the members thereof.”

In another case, the court ruled that the Brookhaven Town Board violated its own procedures when it considered a resolution less than 90 days after earlier rejecting it. The Board’s procedure mandated that "A Resolution, Local Law or Ordinance that receives less than a majority of votes shall not be reintroduced for ninety days (90) or unless this rule is waived by a super-majority vote of the Town Board." [East End Property Co. No. 1 LLC v. Town Bd. of Town of Brookhaven, 15 Misc.3d 1138(A)].

Additionally, General Construction Law §41 requires a majority of the entire board to take any official action. Relying on this provision, the Commissioner of Education ruled that a school board may not adopt a policy requiring affirmative votes by more than a majority of the whole number of the board to take official action because neither the Education Law nor the General Construction Law authorizes a board to adopt requirements in excess of those already provided by statute (Miller, 17 Ed Dept Rep 275).

In contrast, Education Law §3016(2) requires a two-thirds vote of the board to appoint a relative of a board member to a teaching position, rather than the simple majority to appoint a non-relative, thus requiring a "super-majority" to appoint a board member's relative to a teaching position.

As earlier noted, a “super-majority” may be “a majority of all voting members of a body, plus one;" a specified number such as a two-third or three-quarter vote; or in rare cases, a unanimous vote by the body.

On a related issue, "Determining if a quorum required to conduct official business is present," see Formal Opinions of the Attorney General 2008-F1.

Destruction or loss of evidence

Destruction or loss of evidence

Dep't of Correction v. Archibald, OATH Index Nos. 2214/08, 2215/08 & 2216/08

OATH Administrative Law Judge John Spooner rejected a correction officer's motion to dismiss disciplinary charges filed againsthim based upon the spoliation of certain logbooks sought as evidence. Explaining that under New York law, sanctions for spoliation of evidence are appropriate where a litigant intentionally or negligently disposes of crucial evidence before the adversary has an opportunity to inspect them, the ALJ concluded that the officer failed to establish how the logbooks disappeared or how their disappearance would prejudice his defense.