Abolishment of positions by a BOCES

Abolishment of positions by a BOCES must be made in good faith

Appeal of Christopher Curtis and G. Michael Newell from action of the Otsego-Northern Catskill Board of Cooperative Educational Services, Decisions of the Commissioner of Education, Decision No. 15,831

Christopher Curtis and G. Michael Newell appealed BOCES’ decision eliminate two positions of “English Teacher” in the Alternative Education Department effective September 1, 2004, because of a reduced request for services, contending that the stated reason for the abolition of their positions was unsupported by the facts.

With respect to Newell, BOCES argued that his appeal is moot because he retired from his position and that 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.”

The Commissioner agreed in part. He said “[r]etirement constitutes a formal and presumably permanent withdrawal from the teaching profession” and ruled that Newell’s petition is moot to the extent he seeks reinstatement to his former position. In contrast, the Commissioner said that Newell’s claim that seeks back salary and benefits “is not entirely moot because he alleges that BOCES abolished their positions improperly and unlawfully assigned others to teach English classes prior to the effective date of his retirement.”

As to the claim that BOCES abolished their positions in bad faith in violation of the Education Law, the Commissioner pointed out that Education Law Section 3013(1) provides that if a position is abolished and a similar position is created, the person who filled the abolished position must be appointed to the new position. However, neither Curtis nor Newell claimed that BOCES created similar positions and failed to appoint them to those positions. Rather they contend that BOCES “effectively created” two positions by redistributing their workload.

The Commissioner said that, in general, a board of education, acting in good faith, may abolish positions and consolidate the duties of the former positions among existing positions, citing Education Law §§1709[16] and [33]. Similarly, said the Commissioner, a board of cooperative educational services may abolish a position and consolidate it with another without creating a new position, pointing to Education Law §3013[3][a].

Noting that the record reflects that the elimination of two full-time English positions in BOCES’ Alternative Education Department was for economic and administrative reasons, the Commissioner concluded that Curtis and Newell failed to meet their burden of showing that BOCES acted in bad faith in abolishing their positions. Accordingly, the Commissioner ruled that neither is entitled to the requested reinstatement or back pay and dismissed their appeal.

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

http://www.counsel.nysed.gov/Decisions/volume48/d15831.htm

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The New York State Division of Human Rights fines owners of businesses found guilty of sexual harassment at the workplace

The New York State Division of Human Rights fines owners of businesses found guilty of sexual harassment at the workplace

Source: NYS Division of Human Rights

The New York State Division of Human Rights recently determined that two female employees had been subjected to sexual harassment in the workplace. 

In commenting on the rulings, New York State Deputy Secretary for Civil Rights Alphonso David said “Every person is legally entitled to a work environment free of harassment and discrimination … Sexual harassment will not be tolerated in our State and the Administration will use its powers to prosecute those who violate the law.” 

In one case the Division found that the complainant had been subjected to a pattern of sexual harassment by the owner of the business. This included touching the complainant inappropriately, appearing at her home uninvited and offering to pay her rent in exchange for a sexual relationship.

The Division awarded the woman $50,000 in compensatory damages; $13,000 as back wages for the period in which she was paid less than other waitresses; $10,668.68 as back wages for the period in which she was unemployed, and $23,700.06 as back wages for the period she was employed but unable to find a job with a comparable salary. In addition the restaurant owner was ordered to pay $75,000 as a civil fine and penalty for violating New York State’s Human Rights Law.

The decision is posted on the Internet at: http://www.dhr.ny.gov/pdf/orders/2012/hernandez_v_team_taco_mexico.pdf 

In the second case the Division found a woman was subjected to inappropriate behavior by the owner of the business soon after being hired. Although the complainant resigned from her position, the owner continued the harassment by telephone. The complainant was awarded $75,000 in compensatory damages and $27,500 in back wages. The owner was also ordered to pay $25,000 in civil fines and penalties. 

Sexual harassment is prohibited as a form of sex discrimination under the New York State Human Rights Law. The Division reports that it received 517 sexual harassment complaints in 2011. 

The decision is posted on the Internet at:

http://www.dhr.ny.gov/pdf/orders/2012/park-v-kk-management.pdf 

Other decisions by the Division are available on the Division’s website at  http://www.dhr.ny.gov/orders.html  

Failure to cooperate in an employer’s investigation held disqualifying misconduct for the purposes of receiving unemployment insurance benefits

Failure to cooperate in an employer’s investigation held disqualifying misconduct for the purposes of receiving unemployment insurance benefits

Matter of Ortiz (New York Eye & Ear Infirmary--Commissioner of Labor), 2012 NY Slip Op 05369, Appellate Division, Third Department

An administrative assistant was terminated from her position for insubordination after she refused to cooperate with her employer's investigation of an earlier incident involving an angry dispute between the administrative assistant and an employee of a tenant.

The Unemployment Insurance Appeal Board denied the administrative assistant from unemployment insurance benefits after it determined that she had lost her job due to her misconduct.

The Appellate Division affirmed, explaining “An employee's failure to comply with an employer's reasonable request may constitute insubordination rising to the level of disqualifying misconduct."

The administrative assistant conceded that she had refused repeated requests by her employer’s director that she discuss the incident with him. Given the reasonableness of this request and the absence of a compelling reason for administrative assistant's refusal, the court said that it found no basis to vacate the Board's decision.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05369.htm

Investigating anonymous allegations of wrongdoing by a public official

Investigating anonymous allegations of wrongdoing by a public official
Application of Crystal Barton for the removal of Ralph R. Hernandez as a member of the Board of Education of the City School District of the City of Buffalo, Decisions of the Commissioner of Education, Decision No. 15,832

Crystal Barton, a high school principal employed by the Board of Education of the City School District of the City of Buffalo (“board”), asked the Commissioner to remove Ralph R. Hernandez from office as a member of the board.

According to the Commissioner’s decision, Hernandez sent a letter "asking that [the Commissioner] initiate an investigation into certain allegations of employee misconduct and/or criminal activity by employees at McKinley High School, where Barton is employed as principal." Hernandez attached an anonymous letter he had received which made numerous allegation of wrongdoing on the part of Barton.

Barton claimed that the letters to the Commissioner amounted to commencement of a disciplinary proceeding against her, and that her rights were violated because the disciplinary proceeding did not comply with Education Law §3020-a.

She also alleged that Hernandez and the board exceeded their authority under Education Law §2554 by sending letters to the Commissioner and that Hernandez and other board members have made statements to the media which were critical of her. She asked the Commissioner to remove Hernandez from the board, and for a declaration that other board members have exceeded their authority under Education Law §2554.

The Commissioner dismissed Barton’s appeal for a number of technical reasons.

As to anonymous allegations, however, such allegations should not be ignored by an appointing authority. A judgment should be made as to the extent of any investigation required based on "reasonable suspicion." In the Shepard v Ward, 547 NYS2d 57, the Appellate said that suspicious behavior coupled with anonymous tips provided a basis for reasonable suspicion.

In Board of Educ. of City School Dist. of City of New York v. Mills, 250 A.D.2d 122, an anonymous letter was the genesis of disciplinary action taken against a physical education teacher. The letter alleged that the teacher was having an inappropriate relationship with a female student. An initial investigation revealed that educator had, in fact, formed a romantic relationship with the student.

During the course of the investigation the teacher refused to be interviewed by a confidential investigator. He was then subpoenaed to appear to give testimony during a prehearing inquiry concerning his relationship with the student.

The teacher appeared with his attorney and, prior to being questioned, was informed that he had an obligation to cooperate with the investigation, that he was being granted use immunity*and that if he failed to answer questions at this stage of the proceeding, his refusal would be construed as a failure to cooperate and would subject him to dismissal.

In spite of having been granted use immunity, the teacher answered only pedigree and background questions, refusing to answer any questions regarding his relationship with the student. The Commissioner upheld the Hearing Panel's determination regarding the teacher's inappropriate relationship with the student and imposed a three years' suspension without pay as the penalty.

* Use immunity   The question of compelling a public officer or employee to testify or risk termination was considered by the Court of Appeals Matt v LaRocca, 71 NY2d 154. In the Matt case the court of appeals held that when a public employee is threatened with termination if he or she refuses to testify under oath, the testimony given by the individual is "cloaked with use immunity."

The Commissioner’s decision in the Barton case is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume48/d15832.htm

Right to a disciplinary hearing survives the individual’s retirement from the position

Right to a disciplinary hearing survives the individual’s retirement from the position

Blair v Horn, 2008 NY Slip Op 32581(U), Supreme Court, New York County, Docket Number: 0100105/2008, Judge: Marcy S. Friedman [Not selected for publication in the Official Reports]

Clinton Blair sued the New York City Department of Correction (DOC) after it denied his request to rescind his retirement from his position as a correction officer. Blair asked the court to direct DOC to reinstate him to his former position and to schedule a hearing on the disciplinary charges that were pending against him at the time of his retirement.

According to the decision, Blair was served with disciplinary charges alleging “excessive use of sick leave.” The hearing had been scheduled for June 28, 2007, but it was postponed without a new date for the hearing being set. On June 20, 2007, Blair notified the New York City Employees Retirement System of his intent to retire. By letter dated August 15, 2007, DOC granted Blair 26 days of terminal leave with an effective date of retirement of September 27, 2007. According to Blair, his “last day worked” was July 15, 2007.

After exhausting his compensatory and annual leave, Blair was placed on terminal leave. Blair then sent a letter dated August 31, 2007, in which he “request[ed] permission to withdraw [his] request to retire.” DOC denied his request on the grounds that it was its position that an employee who has submitted a request to retire may withdraw the request while the employee exhausts compensatory and annual leave balances, but that DOC has discretion to deny the request if it is made while the employee is on terminal leave.

Significantly, Blair did not dispute the fact that DOC did not receive his request to withdraw his retirement until after he begun using his terminal leave.

Justice Friedman ruled that in this instance it was not irrational for DOC to treat the employment relationship as terminated [as Blair] was no longer working and remained on the payroll merely for purposes of exhausting leave that had been granted in connection with the termination.

Put another way, said the court, DOC did not abuse its discretion in interpreting its personnel rules as prohibiting an employee from withdrawing a retirement request as a right after the employee had begun using terminal leave. In so holding, the court rejected Blair’s contention that DOC may not enforce its rules because he was unaware that he would require DOC approval to withdraw his retirement request.

Although the court decided that DOC’S determination denying Blair’s request to withdraw his retirement request should be upheld, Justice Friedman said that he was entitled to a hearing on the disciplinary charges so that he may have an opportunity to contest them. In the words of the court, “His resignation during the pendency of charges does not terminate the proceeding against him.”

Although retirement rather than resignation was the triggering event in this instance, Justice Friedman’s ruling is consistent with the provisions of 4 NYCRR 5.3(b) which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service. 4 NYCRR 5.3(b) permits the appointing authority to elect to disregard a resignation filed by an employee and to prosecute disciplinary charges and, in the event that such employee is found guilty of such charges and dismissed from the service, recording his or her separation as a dismissal rather than as a resignation.

Further, 4 NYCRR 5.3(c) provides that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.”

Many civil service commissions of political subdivisions of the State have adopted similar rules.

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

http://www.courts.state.ny.us/reporter/pdfs/2008/2008_32581.pdf

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Soliciting a gratuity

Soliciting a gratuity
Dep't of Sanitation v. Norris, OATH Index No. 2352/08 (Aug. 11, 2008)

OATH Administrative Law Judge Alessandra Zorgniotti recommended dismissal of a sanitation worker found to have solicited money from two homeowners to collect bulk material.

ALJ Zorgniotti explained that "[s]oliciting a bribe or gratuity for the performance of one's duties is an act of corruption that cannot be tolerated," and which "necessitates a severe sanction, both to discipline the employee and to deter future similar conduct by other employees.”

Governor Andrew M. Cuomo signs bill addressing cyberbullying in schools.

Governor Andrew M. Cuomo signs bill addressing cyberbullying in schools.

Source: Office of the Governor

Effective July 1, 2013, schools in New York State will be required to take action when students experience cyberbullying or other forms of harassment. The new law, Chapter 102 of the Laws of 2012,* is designed to "ensure that school districts take immediate steps to end harmful behavior, prevent recurrences, and ensure the safety of the targeted students." 

The new law also provides for improved training to help teachers and administrators better prevent and respond to bullying and other harmful acts. In addition, it specifically addresses situations  “where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property.”

According to the Office of the Governor, the “new law is designed to strengthen a school's response to harassment and bullying through improved reporting, investigation, intervention, training and prevention.” 

Key provisions:

1. Require Schools to Act When Cyberbullying Occurs

The law requires that schools act in cases of cyberbullying, which may occur on or off campus, when it creates or would create a substantial risk to the school environment, substantially interferes with a student’s educational performance or mental, emotional or physical well-being, or causes a student to fear for his or her physical safety.

2. Ensure Proper Protocols Are in Place to Deal with Cyberbullying

The law requires school districts to put in place protocols to deal with cyberbullying, harassment, bullying and discrimination, including assignment of a school official to receive and investigate reports; prompt reporting and investigation; responsive actions to prevent recurrence of any verified bullying; coordination with law enforcement when appropriate; development of a bullying prevention strategy; and notice to all school community members of the school’s policies.

3. Set Training Requirements For School Employees to Help Identify and Prevent Cyberbullying

The law sets training requirements for current school employees, as well as for new teachers and administrators applying for a certificate or license, on the identification and mitigation of harassment, bullying, cyberbullying and discrimination.

* A copy of the text of the bill is available from NYPPL by e-mail upon request. E-mail your request to publications@nycap.rr.com and type “Cyberbullying” in the subject line,

Dismissed probationer's allegations that her termination constituted retaliation for exercising her First Amendment rights rejected

Dismissed probationer's allegations that her termination constituted retaliation for exercising her First Amendment rights rejected

Kiehle v. County of Cortland, USCA, 2^nd Circuit, Docket #11-3097-cv [Summary Order*]

Kristina Kiehle appealed a federal district court's judgment granting summary judgment to the County of Cortland and three employees of the Cortland County Department of Social Services ("DSS") alleging that she had been terminated from her position as a probationary case worker in retaliation for testifying at a New York State Family Court ("Family Court") hearing.

The Circuit Court of Appeals, after a de novo review, sustained the district court’s granting the County’s motion for summary judgment.

According to the decision, Kiehle had voluntarily testified at a Family Court hearing in which a mother sought to re-obtain custody of her daughter. After introducing herself as a DSS caseworker, Kiehle stated that her conclusions were based on information that she had obtained in the course of her public employment and that “the mother was able to adequately supervise, and was not neglectful of, her children. She then recommended that the child be returned to the mother.

The Circuit Court said that although Kiehle’s position was contrary to DSS’s position in the proceeding, she had not distinguished her personal views from those of DSS. Accordingly it sustained the district court’s conclusion that Kiehle did not testify as a private citizen on a matter of public concern at the Family Court hearing but, rather, she testified as a government employee, i.e., as a DSS caseworker.

Citing Garcetti v Ceballos, 547 U.S. 410, the Circuit Court explained that "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

The Circuit Court set out the following guidelines used by courts in cases where a public employee claims “First Amendment retaliation,” indicating that in order for the employee to prevail, he or she must demonstrate that:

(1) The speech addressed a matter of public concern,

(2) The employee suffered an adverse employment action, and

(3) There was a causal connection existed between the speech and the adverse employment action" such that "speech was a motivating factor in the determination."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/6b2350f4-485a-4223-8c69-f3f5bc5e76f1/16/doc/11-3097_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6b2350f4-485a-4223-8c69-f3f5bc5e76f1/16/hilite/

* Rulings by summary order do not have precedential effect.