The 2013 edition of The Discipline Book, incorporating summaries of relevant decisions issued through December 31, 2012, is now available

The 2013 edition of The Discipline Book, incorporating summaries of relevant decisions issued through December 31, 2012, is now available

The Discipline Book is a 2100+ page electronic handbook for administrators, union officials and attorneys involved in disciplinary actions taken against public officers and employees employed by New York State and its political subdivisions under the State's Civil Service Law, the Education Law and disciplinary grievance procedures negotiated pursuant to the Taylor Law.

Reviewing The Discipline Book, Mitchell H. Rubinstein, Adjunct Professor, St. John's University, said:

"... I have reviewed previous editions of this work and it is now bigger and better than ever.  It now spans 2127 pages and it covers just about everything; and I mean everything. 

"What is particularly valuable about this book is that it concentrates on recent case law. Hundreds of recent cases as well as hundreds of the leading cases are discussed. The book provides practical advice and information in an easy to understand format. Quite simply, there is no other book which you could purchase involving New York law which provides timely, practical and exhaustive analysis of discipline, constitutional issues involving discipline such as the First Amendment, evidentiary issues, procedural issues, collective bargaining issues, and union issues. 

"Any administrator, employer, union, or attorney who is involved in public sector labor management relations in New York will want to purchase at least one copy. As in earlier editions, the book is published as an e-book which makes searching via MS Word easy and fast."

To order your copy of the 2013 edition of The Discipline Book, please go to: http://booklocker.com/books/5215.html

New Jersey appellate court upholds district’s removal of teacher who posted derogatory remarks about her students on Facebook

New Jersey appellate court upholds district’s removal of teacher who posted derogatory remarks about her students on Facebook

Source:NSBA Legal Clips; Free subscriptions available at www.nsba.org/legalclips. Reproduced with permission. Copyright © 2013, National School Boards Association. All rights reserved.

In re Tenure Hearing of Jennifer O’Brien,  No. A-2452-11T4 (N.J. Super. Ct., App. Div. Jan. 11, 2013)

Abstract: A two-judge panel of the Appellate Division of the New Jersey Superior Court has ruled that school district officials were justified in terminating an elementary school teacher for posting derogatory remarks on Facebook about her students, including referring to them as “future criminals.” Agreeing with the administrative law judge (ALJ) and the Acting Commissioner of Education, the panel concluded the teacher’s remarks were not protected by the U.S. Constitution’s First Amendment Free Speech Clause because the remarks were not made on a matter of public concern.

The panel also found evidence supporting the ALJ’s and Commissioner’s determination that the teacher had engaged in conduct unbecoming a tenured teacher. Finally, the panel agreed with the ALJ and Commissioner that her termination was the appropriate penalty.

Facts/Issues: At the time of her termination, Jennifer O’Brien was employed by the School District of the City of Paterson (PCSD) as a first grade teacher. In March 2011, she posted two statements on Facebook that had cast her students in a derogatory light, including referring to them as “future criminals.” The remarks gained widespread public attention, with a number of parents complaining about O’Brien’s comments.

After PCSD’s Deputy Superintendent filed charges against O’Brien for conduct unbecoming a teacher, PCSD’s Superintendent found probable cause to support the charges and O’Brien’s termination. The charges were then filed with the Acting Commissioner of Education, who referred the matter to the Office of Administrative Law for a hearing before an ALJ.

The ALJ rejected O’Brien’s argument that her remarks were entitled to First Amendment protection on grounds that she had addressed a matter of public concern, i.e., student misconduct. Instead, the ALJ found the remarks were “a personal expression” of dissatisfaction with her job. The ALJ also concluded that even if O’Brien’s speech was on a matter of public concern, her right to express her views was outweighed by PCSD’s need to operate its schools efficiently. The ALJ stated that “in a public school setting thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools.”

The ALJ also found the evidence supported the charges of conduct unbecoming a teacher because it showed O’Brien failed to maintain a safe, caring, nurturing, educational environment. Additionally, the ALJ determined that O’Brien breached her duty as a professional teacher. Lastly, the ALJ found O’Brien’s conduct justified her removal because O’Brien’s relationship with the Paterson school community had been irreparably damaged. The Acting Commissioner adopted the ALJ’s ruling.

O’Brien appealed that decision, raising three arguments: (1) the ALJ and the Commissioner erred by rejecting her constitutional claim; (2) the tenure charges were not supported by the evidence and should have been dismissed; (3) her removal was not the appropriate penalty.

Ruling/Rationale:  The Appellate Division panel rejected all of O’Brien’s arguments, finding them without merit, and affirmed the ALJ’s and Commissioner’s decisions. The panel concluded that O’Brien’s remarks did not constitute protected speech because they were personal statements motivated by her dissatisfaction with her job and the behavior of some her students. The panel also agreed that even if the remarks were on a matter of public concern, PCSD’s interest in the efficient operation of its schools outweighed her right to free speech.

The panel also found that the evidence supported the ALJ’s determination that O’Brien had engaged in conduct unbecoming a tenured teacher. It pointed out that both the ALJ and the Commissioner found that by posting the comments, O’Brien had demonstrated a lack of control “inimical to her role as a professional educator.”

Finally, the panel rejected the argument that O’Brien’s termination was not an appropriate penalty. It stated: “We are satisfied that, in determining the appropriate penalty, the ALJ and Acting Commissioner considered all relevant factors and reasonably concluded that the seriousness of O’Brien’s conduct warranted her removal from her tenured position in the district.”

In re Tenure Hearing of Jennifer O’Brien,  No. A-2452-11T4 (N.J. Super. Ct., App. Div. Jan. 11, 2013)

[NSBA’s Editor's Note: In November 2011, Legal Clips summarized an article in The Record, which reported on ALJ Ellen Bass' ruling. "O'Brien has demonstrated a complete lack of sensitivity to the world in which her students live,” Bass said. “The sentiment that a 6-year-old will not rise above the criminal element that surrounds him cuts right to the bone.” Bass also noted that O’Brien had failed to express genuine remorse during her August 2011 hearing. “I came away with the impression that O’Brien remained somewhat befuddled by the commotion she had created,” the judge wrote.]

Administrative agency’s failure to follow its own precedents in adjudicating the issue results in court remanding the matter to it for its further consideration

Administrative agency’s failure to follow its own precedents in adjudicating the issue results in court remanding the matter to it for its further consideration
City of New Rochelle v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 08860, Appellate Division, Third Department

The City of New Rochelle and the Police Association of New Rochelle[PBA] entered into a stipulation of settlement to resolve the improper practice charge that the PBA had filed with PERB concerning “special duty details.” The stipulation set out the terms and conditions resolving the improper practice charge and included a provision that such "[a]greement and its subject matter [would] not be subject to the grievance and/or arbitration procedures contained in [the] collective bargaining agreement between [the City] and the [PBA], it would] be enforceable in a court of competent jurisdiction."

When the City entered into a written agreement with the New Rochelle Superior Officers' Association [SOA] allowing sergeants and lieutenants to work special duty details, the PBA, claiming that special duty details had previously been performed exclusively by its members, filed another improper practice charge with PERB.

The City, contending that the improper practice charge had its genesis in a contractual dispute earlier resolved with the stipulation between the City and the PBA, argued that PERB lacked subject matter jurisdiction.

A PERB Administrative Law Judge found that PERB did have jurisdiction over the underlying charge and, further, that the City had engaged in an improper practice when it unilaterally transferred exclusive bargaining unit work to nonunit employees. PERB affirmed the ALJ's decision and the City file initiated a CPLR Article 78 action challenging PERB’s determination.

The Appellate Division, noting that the City, as a public employer, is required to negotiate in good faith with the PBA regarding the terms and conditions of its members' employment said that Civil Service Law §205(5)(d) “makes clear that PERB ‘shall not have authority to enforce an agreement between an employer and an employee organization and shall not exercise jurisdiction over an alleged violation of such an agreement that would not otherwise constitute an improper employer or employee organization practice,’ and an ‘agreement,’ for purposes of the statute, includes collective bargaining agreements.”

Further, said the court, “PERB "has consistently interpreted [Civil Service Law §205 (5)(d)] to deprive it of jurisdiction over failure-to-negotiate improper practice charges when the underlying disputes are essentially contractual, in favor of resolving the dispute through the parties' grievance-arbitration machinery, or resort to the courts."

PERB, however, had rejected the City’s jurisdictional defense based on its earlier stipulation of settlement with the PBA, holding that while the stipulation addressed the issue of eligibility for special duty details did not expressly speak to the issue of the exclusivity of such assignments being vested in PBA unit members.

The Appellate Division disagreed, holding that PERB's own prior decisions make it clear that "[a] jurisdictional issue can be raised . . . even if the agreement [at issue] does not address specifically the particular allegations of the improper practice charge if the agreement is a source of right to the charging party with respect to the subject matter of the charge."

Accordingly, said the court, it was satisfied that the stipulation of settlement provides "a reasonably arguable source of right with respect to the subject matter of the [underlying improper practice] charge" -- even in the absence of an express reference to the issue of exclusivity and thus "PERB erred in summarily dismissing the City's jurisdictional defense and reaching the merits of the dispute."

The Appellate Division annulled PERB’s determination and remitted the matter to it for its consideration of whether the improper practice charged should be summarily dismissed at this juncture or, alternatively, conditionally dismissed pending judicial resolution of the underlying contractual dispute.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08860.htm

Recent NYC Office of Administrative Trials and Hearings [OATH] decisions

Recent NYC Office of Administrative Trials and Hearings [OATH] decisions 

OATH Index No. 1780/12

After a bridge and tunnel officer (“BTO”) took offense upon discovering his leave request status form posted on an employee bulletin board, he posted a profane note next to the form, directed at “who ever put” his personal information on the board. The only personal information contained on the leave form, however, was the officer’s last name.

OATH Administrative Law Judge Kara J. Miller found that writing and posting the obscene missive was misconduct.

The ALJ rejected the officer’s argument that the posting was permissible “shop talk”, noting that while it might not be uncommon for BTOs to use profanity on the job, this was not a verbal outburst made in the heat of the moment, but a deliberate statement, publicly posted and directed at a supervisor.

The recommended penalty was a 30-day suspension.

Judge Miller’s ruling is posted on the Internet at: Triborough Bridge & Tunnel Auth. v. McAllister (in PDF),

OATH Index No. 2059/12 

Evidence was introduced in a disciplinary hearing held before OATH Administrative Law Judge Alessandra Zorgniotti showing that a community associate was absent on 223 occasions and late on 35 occasions during a 13-month period.

Such evidence, the ALJ concluded, proved the excessive absence and the lateness charges and specifications filed against the individual.

ALJ Zorgniotti found that although "excessive absenc" was not specifically defined by the agency's rules, the sheer number of absences proven were excessive per se and recommended that the community associate be terminated. The Appointing Authority adopted the ALJ's recommendation and dismissed the individual.

Judge Zorgniotti’s decision is posted on the Internet at:  Dep’t of Buildings v. Rodriguez (in PDF).

Employer must show that employee's legal speech threatened the effective operation of the employer to prevail in disciplinary action taken against the employee

Employer must show that employee's legal speech threatened the effective operation of the employer to prevail in disciplinary action taken against the employee

Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 2012 NY Slip Op 08750, Appellate Division, Second Department

The genesis of the disciplinary action taken against a union official was a series concerted actions by teachers during collective bargaining negotiations that included weekly picketing in front of a school when students were being dropped off. On a day when it was raining, some of the teachers parked their cars along nearby street and display their signs in their car windows. The street was one of several locations where parents would drop off their children.

The charges filed against the union president included the allegation that his activities “resulted in children being dropped off in the middle of the street which resulted in an otherwise avoidable and unnecessary health and safety hazard." According to the school principal, the parking activity caused traffic to become extremely congested, and some children were dropped off in the street and had to cross traffic lanes to reach the sidewalk. No school official asked the teachers to move their cars during the protest, and no child was injured.

In the course of the disciplinary arbitration hearing, the union president contended that he had a constitutionally protected right to peacefully picket in a public area before the beginning of the school day. The arbitrator rejected this argument, found the president guilty of the charge of creating a health and safety hazard and directed that he pay a $500 fine.

The Appellate Division, noting that an arbitration award must be rational and not arbitrary and capricious, said that the evidence that children were dropped off in the middle of the street due to the arrangement of the cars provided a rational basis for the arbitrator's determination that the president contributed to the creation of a health and safety hazard, and the award was not arbitrary and capricious.

However, the Appellate Division also considered the president’s claim that that the disciplinary proceeding commenced against him, and the discipline ultimately imposed, violated his right to free speech under the First Amendment to the United States Constitution, explaining that courts “must balance free-speech principles against the threat to effective government operation presented by that speech.” Further, said the court, the government employer bears the burden of showing that the disciplinary action taken against the employee was justified.

The union president’s "speech" regarding collective bargaining issues indisputably addressed matters of public concern and “despite the evidence establishing that the manner in which the protest was carried out interfered with the safe and effective drop-off of students," the Appellate Division found that the School District failed to meet its burden of demonstrating that the union president’s exercise of his First Amendment rights so threatened the school's effective operation as to justify the imposition of discipline.

The president, said the court, “fully complied with the applicable parking regulation” and were the municipality of the view that it was unsafe for cars to park along the street in question during the time when parents dropped off their children at the school, “it could have prohibited parking during the relevant time periods, but it did not do so."

Further, said the Appellate Division, “no school official asked the teachers to move their cars during the protest, and no student was injured as a result of the protest.”

As the record establishes that the danger presented by the legally parking teachers could not have been substantial, the Appellate Division concluded that under these circumstances the District failed to demonstrate that union president's legal speech so threatened the effective operation of the school that discipline of him was justified.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08750.htm

Education Law §310 may not be used to appeal an administrative decision made by an employee of the State Department of Education

Education Law §310 may not be used to appeal an administrative decision made by an employee of the State Department of Education

Advanced Therapy, OT, PT, SLP, ET AL PLLC, - An appeal from a decision by the New York State Education Department, Decisions of the Commissioner of Education, Decision 16,446

Advanced Therapy, a provider of preschool education services, challenged a decision denying a program modification request that it alleged was made by a State Education Department employee.

The Commissioner dismissed Advanced Therapy’s appeal, explaining that “It is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department “

Such decisions, said the Commissioner, may be challenged in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16446.html

In order to be considered by an administrative tribunal, the evidence must be made available to the tribunal prior to its making a final determination

In order to be considered by an administrative tribunal, the evidence must be made available to the tribunal prior to its making a final determination
Cabonargi v City Univ. of N.Y., 2013 NY Slip Op 00129, Appellate Division, First Department

A doctoral program student dismissed from the City University of New York challenged the University’s decision. After considering “an email from student's academic advisor," Supreme Court granted the student’s petition and directed the University “to reconsider” its decision.

The Appellate Division unanimously reversed, on the law, explaining that Supreme Court improperly considered an email from the student's academic advisor as it was never presented at the administrative level.

Indeed, said the court, the e-mail considered by Supreme Court was issued after the University's “final determination.”

The Appellate Division noted that with respect to the evidence considered at the administrative level, the University's determination concerning the graduate student’s academic qualifications was rational, and was made in good faith and in accordance with its own rules.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00129.htm