An appeal to the Commissioner of Education must comply with all precedural requirements set out in the relevant Regulations of the Commissioner

An appeal to the Commissioner of Education must comply with all precedural requirements set out in the relevant Regulations of the Commissioner

Appeal of R.F. and D.F., on behalf of their son R.F., from action of the Board of Education of the East Meadow Union Free School District, Decisions of the Commissioner of Education, Decision #16,369

In this pro se appeal, R.F. and D.F. [the parents] appealed the suspension of their child, R.F., and asked the Commissioner to remove the Superintendent and the Board President from their respective positions.

The Commissioner denied the parents’ appeal on the merits but addressed a number of procedural matters that should be noted.

The School District contended that the appeal should be dismissed because the petition filed by the parents:

1. Failed to state a claim upon which relief may be granted;

2. Failed to join necessary parties; and

3. Was not verified. 

The School District also objected to parents’ response to its memorandum of law. On this point the Commissioner said: “Although labeled ‘Reply,’ it is unclear whether [the parents] intend this document to be a reply or reply memorandum of law …to the extent this ‘Reply’ was intended as a reply, it is untimely, because the parents failed to serve it within 10 days after service of the school district’s answer in accordance with §275.14(a) of the Commissioner’s regulations.”

 

If, however, the “Reply” was intended as a reply memorandum of law, the Commissioner pointed out that a reply memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings and may be accepted only with the prior approval of the Commissioner, citing 8 NYCRR §276.4.  Although the Commissioner said that the parents had “apparently contacted my Office of Counsel prior to their submission, it fails to comply with §276.4 of the Commissioner’s regulations pertaining to memoranda of law, or with §276.5 pertaining to additional affidavits, exhibits and other supporting papers.”

 

Accordingly, said the Commissioner, “I have not considered it.”

The School District also contended that the appeal must be dismissed because the petition is not verified.  8 NYCRR §275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  In the event a petition is not properly verified, the appeal must be dismissed.

The Commissioner, noting that the parents’ petition that was filed with his Office of Counsel included the required verification, ruled that dismissal on that basis is not warranted.

Turning to that portion of the parents’ appeal that challenged their child’s suspension from school and seeking to expunge any report of the incident from his school record, the Commissioner said that he 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. As the child had already “served the suspensions and returned to school,” that aspect of the appeal, said the Commissioner, was moot.

However, said the Commissioner, to the extent that parents seek expungement of the incident from their child’s school record, that aspect of the appeal survived.

As to the parents’ seeking the removal of the Superintendent and the Board President, the Commissioner said that their application must be denied for failure to join necessary parties, i.e., 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.

“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.

Turning to the requirement that the appropriate parties must be served with the necessary papers, the Commissioner noted that the parents had “served only the district by personally serving the Superintendent’s secretary and … a member of the board.” As neither the Superintendent nor the Board President was personally served with a copy of the notice of petition and petition, the Commissioner ruled that the parents’ “removal application must be denied.”

Further, said the Commissioner, there was another basis for denying parents’ application for removal: the notice of petition was defective.  8 NYCRR §277.1[b] requires that the notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office. The parents, however, had failed to give such notice and, instead, used the notice prescribed under 8 NYCRR §275.11(a) for appeals brought pursuant to Education Law §310. 

A notice of petition that fails to include the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondents.

Finally, the Commissioner noted that “A petition to the Commissioner is required to set forth the allegations in numbered paragraphs, be typewritten and double spaced, citing 8 NYCRR §275.3[c].  Although a liberal interpretation of these rules is appropriate where petitioners are pro se and there is no prejudice to respondent, the Commissioner noted that the parents’ lack of adherence to the regulations “has obfuscated their contentions.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16369.html

Employee’s termination based on the findings and recommendation of the disciplinary hearing officer

Employee’s termination based on the findings and recommendation of the disciplinary hearing officer

Snead v Village of Spring Valley, 2012 NY Slip Op 05749, Appellate Division, Second Department

Supreme Court dismissed a petition filed pursuant to Article 78 of the Civil Practice Law and Rules challenging the determination of the Village of Spring Valley Justice Court dismissing the individual from her position, noting that the Justice Court had adopted the findings and recommendation of the disciplinary hearing officer.

The Appellate Division affirmed the Justice Court’s action, noting that the alleged misconduct, falsification of public records, and insubordination, was supported by “substantial evidence adduced at the administrative hearing.”

In addition, the court held that “in light of the charges and the [employee’s] duties, the penalty imposed was not so disproportionate to the offenses as to be "shocking to one's sense of fairness," thus constituting an abuse of discretion as a matter of law, citing Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05749.htm

Where available, the Doctrine of Absolute Privilege defeats a plaintiff's defamation claim

Where available, the Doctrine of Absolute Privilege defeats a plaintiff's defamation claim
Murphy v City of New York, 2008 NY Slip Op 31926(U), Supreme Court, New York County, Docket Number: 0106059/2006, Judge: Karen Smith [Not selected for publication in the Official Reports.]

Judge Smith said that “the privilege of absolute immunity is bestowed upon an official who is ‘a principal executive of State or local government or is entrusted by law with administrative or executive policy-making responsibilities of considerable dimension,'" and that this privilege “extends to those of subordinate rank who exercise delegated powers,” citing Firth v State of New York, 12 AD3d 907, lv to appeal denied, 4NY3d 709 and Ward Telecom. & Computer Services v State of New York, 42 NY2d 289.

In Firth, the New York Office the State Inspector General ”) was found to be cloaked with absolute immunity, where it had conducted an investigation of the Department of Environmental Conservation’s Law Enforcement Division and its subsequent report, allegedly containing defamatory statements about the Division’s former director, was later published on the Internet.

Among the most common situations where the issue of privilege is raised are those involving the employee alleging that internal communications between administrators or between an employee and an administrator concerning the worker contains defamatory statements. Murphy v Herfort, 428 NYS2d 117, is an example of litigation resulting from communications between administrators; Missek-Falkoff v Keller, 153 AD2d 841, is an example of a case where one employee sued another because of the contents of a memorandum from the second employee to a superior concerning a "problem" with the coworker.

This issue may also arise in connection with an employee's former employer supplying information to a prospective employer of the individual in response to a request for "references" (see Buxton v Plant City, 57 LW 2649). Unless malice is shown, the courts usually dispose of such a case by applying the doctrine of "qualified immunity."

In Tulloch v Coughlin, 50 F.3d 114, the US Circuit Court of Appeals, Second Circuit, considered the differences between “absolute immunity” and “qualified immunity.”

The difference is significant. Absolute immunity completely insulates an individual from civil law suits. In contrast, a qualified immunity protects the individual from liability only where the individual did not violate a person’s "clearly established" right.