Terminated teacher is reinstated with back salary because school district failed to satisfy the procedural requirements of Education Law §3020-a

Terminated teacher is reinstated with back salary because school district failed to satisfy the procedural requirements of Education Law §3020-a
Robert Pollock v Kiryas Joel Union Free School Dist., 52 AD3d 722

The Kiryas Joel Union Free School District and the Board of Education of the Kiryas Joel Union Free School District terminated a teacher from his position as a tenured teacher with the district. 

The teacher sued and Supreme Court annulled the district’s action and directed that the teacher be reinstated to his position retroactive to the date of his termination "with an award of back pay, interest, and such other and further benefits as would have accrued to him but for his unlawful termination of employment." The Appellate Division affirmed the lower court’s ruling.

The court pointed out that a tenured teacher was entitled to the procedural protections set forth in Education Law §3020-a.

The Appellate Division summarized the procedural elements as follows: Prior to any disciplinary action being taken against a teacher, all charges must be submitted in writing and filed with the clerk or secretary of the school district (Education Law § 3020-a[1]); then the employing board of education, in executive session, must vote as to whether there is probable cause for the charges (Education Law § 3020-a[2]); and if the board of education's determination is affirmative, a written statement specifying the charges in detail and outlining the employee's rights, including his right to a hearing, shall be immediately forwarded to that employee (Education Law § 3020-a[2]).

In contrast, the court noted that a tenured teacher may enter into a settlement providing for his or her voluntary resignation and forfeiture of protections pursuant to Education Law §3020-a only if that settlement is shown to have been voluntary and noncoerced.

Here, however, the Appellate Division said that “the evidence did not establish that the [the teacher’s] purported waiver of his rights under Education Law § 3020-a was voluntary and noncoerced.”

As the Kiryas Joel did not prefer charges or hold a hearing pursuant to Education Law § 3020-a, the Supreme Court properly determined that the appellants' actions were undertaken in violation of lawful procedure and was correct in granting the teacher’s petition and annulling Kiryas Joel’s terminating his employment.

The Appellate Division then remitted the matter to Supreme Court for the purpose of determining the amount due the teacher but also said that the “award shall include an offset for the amount of [the teacher’s] earnings from other employment since his termination by the appellants and for the amount of unemployment benefits received by the petitioner during that period.”

NYPPL Comment:On the issue of coercion in connection with an appointing authority’s threatening disciplinary action if the employee does not resign from his or her position, the Court of Appeals has held that threatening to do what the appointing authority had a right to do -- i.e., file disciplinary charges -- did not constitute coercion so as to make the resignation involuntary [Rychlick v Coughlin, 63 NY2d 643].

The decision is set out on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/07/terminated-teacher-is-reinstated-with.html

Qualified immunity is available as a defense where there is “no clearly established law” concerning the alleged act or omission

Qualified immunity is available as a defense where there is “no clearly established law” concerning the alleged act or omission

DiStico v Cook, et al, USCA, 2^nd Circuit, Docket #10-4304-cv

The Circuit Court of Appeals for the Second Circuit reversed, in part, a United States District Court’s denial of motions by a school principal and two teachers for summary judgment dismissing the action against them based on their claim that they were entitled to a “qualified immunity.”

Although the court sustained the district court’s ruling denying qualified immunity status with respect to allegations that the teachers “were deliberately indifferent to racial name-calling by kindergarten students, which in one instance may have been accompanied by a physical assault,”* the court said that the doctrine of qualified immunity**was applicable with respect to claims that the educators were deliberately indifferent to certain other allegedly racially motivated physical misbehavior by kindergarten and first-grade students.

This was so, explained the court, because there was no clearly established law permitted a finding that the educators had actual knowledge that commonplace physical misbehavior by children of this age was racially motivated.

In the words of the court, “To date, no Supreme Court or Second Circuit law clearly establishes that evidence of prior racial name-calling by unidentified kindergarten or first-grade students suffices to demonstrate that any subsequent physical misbehavior directed at the same classmate is also racially [motivated]. Indeed, we conclude that something more is necessary to support an inference that a teacher or school official actually knew such subsequent misconduct was racially motivated.”

In addition, said the court, the first-grade teacher was entitled to qualified immunity on this claim because her transmittal of parental complaints of physical misbehavior to the principal for investigation could not be deemed "clearly unreasonable" as a matter of law.

* The two teaches not entitled to qualified immunity with respect to these allegations “because there are disputed questions of fact for which the district court identified sufficient record evidence to support a verdict in favor of [DiStico].”

** Qualified immunity may be claimed by government officials as a defense to liability in an action for civil damages insofar as the act or omission involved did not violate clearly established statutory or constitutional rights that a reasonable person would have known [Harlow v. Fitzgerald, 457 U.S. 800].

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/a4ad1d49-9be3-40ae-af85-f81b7075cc76/1/doc/10-4304comp_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a4ad1d49-9be3-40ae-af85-f81b7075cc76/1/hilite/

Past attorney-client relationship may constitute a conflict of interest with respect to representing another individual in a subsequent proceeding

Past attorney-client relationship may constitute a conflict of interest with respect to representing another individual in a subsequent proceeding
Robert Falk v Chittenden, 11 NY3d 73

In 2003, City of Rye initiated a disciplinary proceeding against a police lieutenant  pursuant to Civil Service Law §75 and the Department's Rules and Regulations alleging the lieutenant was insubordinate towards another police lieutenant. The accused lieutenant ultimately retained Jonathan Lovett, Esq. to represent him at the disciplinary hearing on these charges.

Falk asked the hearing officer to disqualify Lovett from representing the accused Lieutenant on the ground that he had an attorney-client relationship with him and thus had "a conflict of interest" in view of the attorney's consulting with Falk in the past.. 

Lovett, on behalf of the accused lieutnant, opposed Falk's motion. The hearing officer concluded that he did not have authority to decide the motion.

Ultimately the Court of Appeals considered the matter and ruled that, indeed, there was a conflict of interest in Lovett’s representing the Lieutenant because, in the words of the court, earlier "Falk sought Lovett's legal advice at least partly in a professional capacity. The record further establishes that conversations between Lovett and Falk touched on the disciplining [the Lieutenant]. Lovett acknowledges that he rendered some legal advice on that issue, advising Falk to be wary of [the accused Lieutenant’s] First Amendment rights.  "Moreover, while disciplining [the Lieutenant] might have been a personal desire of Falk's, a request for legal advice as to whether discipline against an inferior officer is a viable course of action falls squarely within a commanding officer's professional responsibilities. 

"Accordingly, Falk in his official capacity had an attorney-client relationship with Lovett, and therefore has standing as a prior client to bring this action for declaratory judgment."

The full text of the decision is set out on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/07/past-attorney-client-relationship-may.html

Jurisdiction of the Commissioner to consider an appeal concerning a matter being grieved

Jurisdiction of the Commissioner to consider an appeal concerning a matter being grieved
Mennella v Uniondale UFSD, Comm. Ed. Decision 14245

Among the issues presented to the Commissioner of Education in this appeal were two that Uniondale contended concerned grievances that Mennella had previously filed with the district.

The the Commissioner considered the district's "jurisdiction argument" -- i.e., did the Commissioner have jurisdiction to consider those issues that were "pending grievances."

The Commissioner responded to the district's challenge to his jurisdiction by noting that "[i]t is well established that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not elect to bring an appeal to the Commissioner of Education for review of the same matter," citing Commack Union Free School District v Ambach, 70 NY2d 501.

The Commissioner then decided that the grievances had not raised the same issues that Mennella had raised in her appeal. Accordingly, he concluded that he had jurisdiction to consider her appeal. 

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

http://www.counsel.nysed.gov/Decisions/volume39/d14245.htm

Administrative Law Judge recommends a five-year debarment of public works contractor

Administrative Law Judge recommends a five-year debarment of public works contractor

Office of the NYC Comptroller v Abbey Painting Corporation, OATH Index #2544/11

OATH Administrative Law Judge Faye Lewis found that a contractor violated the NYS Labor Law by failing to pay prevailing wages and supplemental benefits to six employees on four public works contracts.

Based upon credible testimony by two of the workers, documentary evidence and videotapes made by one of the workers, Judge Lewis found that the contractor issued checks to the workers for prevailing wages and benefits, required the workers to endorse the backs of the checks but did not permit them to keep the checks, and instead paid them in cash at lower daily or weekly rates, thereby engaging in a “kickback” scheme.

As a penalty for the violations, the Administrative Law Judge recommended that the contractor be found liable for the underpayments, plus interest, plus a 25% civil penalty. Finding the contract had engaged in flagrant and willful violations on multiple contracts, deliberately falsified payroll records, and the kickback scheme, Judge Lewis also recommended a five-year debarment.   

The decision is posted on the Internet at:

http://www.nyc.gov/html/oath/downloads/pdf/benchpdf/11-2544.pdf

Drafting disciplinary charges

Drafting disciplinary charges
Fella v County of Rockland, 297 A.D.2d 813

How important it to properly draft disciplinary charges? According to the Appellate Division, even in situations where discipline may be warranted, the failure to properly word the charges and specifications may be fatal to the appointing authority's attempt to discipline an employee.

According to the court's decision, following an investigation, the Rockland County Director of Employee Rights and Equity Compliance [Director] concluded that a Rockland County employee had created a hostile work environment by promoting a person with whom he was then having a romantic relationship to a vacant position.

As a result of the disciplinary action that followed, the employee was suspended for 30 days without pay for allegedly violating the County's Equal Employment Opportunity Policy [EEOP].

In its decision the Appellate Division noted that the County's EEOP defined sexual harassment as "unwelcome sexual advances, requests for sexual favors, sexual demands or conduct of a sexual nature which `had the purpose or affect [sic] of unreasonably inter­fering with an [affected] person's work performance or creating an intimidating, hostile or offensive work environment.'"

Citing DeCinto v Westchester County Medical Cen­ter, 807 F2d 304, the court indicated that there is no sexual discrimination or harassment involved "where the conduct complained of by the employee involves an isolated act of preferential treatment of another employee due to a romantic, consensual relationship."

The Supreme Court judge commented that while a decision to promote an employee with whom the target of the disciplinary action was having a romantic relationship may constitute poor judgment, it did not constitute a violation of the County's EEOP - the alleged basis for bring the discipli­nary action. As the County failed to establish any violation of its EEOP, the Supreme Court annulled the determination of the Rockland County Executive. The Appellate Division affirmed the ruling.

What lesson can be learned from this ruling?

While the charges and specifications filed against an employee should clearly apprise the individual the alleged "misconduct or incompetence" giving rise to the charge, the specifications should constitute acts or omissions that, if proven to have occurred, would support a finding that the employee was guilty of misconduct or incompetence. In any event, the employer should be certain that it can prove the allegations, whatever they may be, before initiating disciplinary action.

On the opposite end of the spectrum, where a disciplinary action has been "settled" and the penalty imposed includes placing the individual in "disciplinary probation status," the employer must make certain that in the event the employee is dismissed during this disci­plinary probation period, his or her dismissal is based on the individual's failure to meet the requirements set for the probation in the settlement agreement.

Perhaps the leading case illustrating this principle is Taylor v Cass, 505 NYS2d 929. Here a Suffolk County employee won reinstatement with full back salary and benefits as a result of a court finding that he was improperly dismissed while serving the discipli­nary probationary period.

The six-month disciplinary probation period agreed upon by the parties provided that the County could terminate the employee without any hearing if, in the opinion of his superior, the employee's job performance was adversely affected by his being intoxication while at work during his disciplinary probationary period.

The employee, while serving his disciplinary probationary period, was terminated without any hearing for "failing to give a fair day's work" and "sleeping during scheduled working hours."

The Appellate Division ruled that the employee’s dismissal was improper because he was not terminated for the sole reason specified in the disciplinary settlement: intoxication on the job.

Non-tenured public administrator exercising policymaking or advisory duties ineligible for unemployment insurance

Non-tenured public administrator exercising policymaking or advisory duties ineligible for unemployment insurance
Shapiro v Commissioner of Labor, 52 AD3d 1139

The Unemployment Insurance Appeal Board held that the Village Administrator of the Village of Muttontown was ineligible to receive unemployment insurance benefits after determining that the Village Administrator was a major nontenured policymaking or advisory position within the meaning of Labor Law §565(2)(e).

The Village Administrator appealed but the Appellate Division sustained the Board’s ruling, holding that the Administrator position was untenured and that the powers and duties of the position of Village Administrator were set out in Village of Muttontown Local Law No. 1 (2005) that set out provisions establishing advisory and policymaking aspects of the job.

Accordingly, said the court, the Board properly determined that Labor Law §565(2)(e) precluded Shapiro from obtaining unemployment insurance benefits.

Comment: Other “excluded” officers and employees of a governmental entity: an elected official; a member of a legislative body or of the judiciary; a member of the state national guard or air national guard, except a person who renders such services as a regular state employee; a person serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency; and a person in a policymaking or advisory position, the duties of which ordinarily do not require more than eight hours per week to perform. In addition, §565(2)(g) excludes an individual who is an inmate of a custodial or penal institution.

Labor Law §511 sets out additional exclusions, including students and students' spouses at educational institutions [see §511 subdivisions 15 and 17] and independent contractors.

The full text of the decision is set out on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/07/non-tenured-public-administrator.html

Updated version of Policy Bulletin 12-01 addressing a “Transfer of Function” issued by the New York State Department of Civil Service

Updated version of Policy Bulletin 12-01 addressing a “Transfer of Function” issued by the New York State Department of Civil Service

Replaces Policy Bulletin #91-01, issued on March 20, 1991; reissued on April 14, 2000

The New York State Department of Civil Service has published a revised Policy Bulletin, Policy Bulletin 12-01, addressing personnel issues involved in the event of a transfer of function from one State Department to another State Department as provided by Civil Service Law §70(2).

The bulletin provides guidelines, policies and procedures for the transfer of employees pursuant to Civil Service Law §70(2) upon a transfer of function between departments or agencies of the State. Section §70(2) provides for the transfer of necessary employees who are substantially engaged in the performance of the function to be transferred.

The bulletin cautions that there may be unique aspects to any transfer of function and suggests that any potential transfer of function should be discussed with the appropriate agency Civil Service Department Staffing Services Representative as soon as a transfer of function is thought to be a possible action.

With respect to a “Transfer of Function Pursuant to Civil Service Law Section 70(2),” Policy Bulletin 12-01 notes that Civil Service Law section 70(2) provides, in pertinent part, as follows: 

“Transfer of personnel upon transfer of functions. Upon the transfer of a function (a) from one department or agency of the state to another department or agency of the state,... provision shall be made for the transfer of necessary officers and employees who are substantially engaged in the performance of the function to be transferred. As soon as practicable after the adoption of a law, rule, order or other action directing such a transfer of function, but not less than twenty days prior to the effective date of such transfer, the head of the department or agency from which such function is to be transferred shall certify to the head of the department or agency to which such function is to be transferred a list of the names and titles of those employees substantially engaged in the performance of the function to be transferred, and shall cause copies of such certified list to be publicly and conspicuously posted in the offices of the department or agency from which such function is to be transferred, along with copies of this subdivision. Any employee of the department or agency from which such function is to be transferred may, prior to the effective date of such transfer, protest his or her inclusion in or exclusion from such list by giving notice of such protest in writing addressed to the heads of the respective departments or agencies from which and to which transfer is to be made, which notice shall state the reasons for the protest. The head of the department or agency to which such function is to be transferred shall review the protest and after consultation with the head of the department or agency from which such function is to be transferred notify the protestor within ten days from the receipt of such protest of the determination with respect to such protest. Such determination shall be a final administrative determination. Failure to make such protest shall be deemed to constitute consent to inclusion in or exclusion from, as the case may be, the certified list of employees engaged in the function to be transferred. Officers and employees so transferred shall be transferred without further examination or qualification, and shall retain their respective civil service classifications and status. For the purpose of determining the officers and employees holding permanent appointments in competitive class positions to be transferred, such officers and employees shall be selected within each grade of each class of positions in the order of their original appointment, with due regard to the right of preference in retention of disabled and non-disabled veterans. Any employee who fails to respond to or accept a written offer of transfer from the department or agency to which such function is to be transferred within ten days after receipt of such offer shall be deemed to have waived entitlement to such transfer. All officers and employees so transferred shall, thereafter, be subject to the rules of the civil service commission having jurisdiction over the agency to which transfer is made. Officers and employees holding permanent appointments in competitive class positions who are not so transferred shall have their names entered upon an appropriate preferred list for reinstatement to the same or similar positions in the service of the governmental jurisdiction from which transfer is made and in the office or agency to which such function is transferred…."

Policy Bulletin 12-01 is posted on the Internet at:

http://www.cs.ny.gov/ssd/Manuals/SPMM/1800Appointments/Policy%20Bulletin%2012-01.htm

A PDF version of this policy statement is available on the Internet at:

 http://www.cs.ny.gov/ssd/pdf/pb12-01.pdf