Teacher terminated after rejection constructive criticism of her ineffective teaching methods

Teacher terminated after rejection constructive criticism of her ineffective teaching methods

A tenured New York City teacher challenged her termination following a disciplinary arbitration hearing. Supreme Court dismissed her Article 75 petition and confirmed the New York City’s cross motion to confirm the arbitration award.

The Appellate Division unanimously affirmed the Supreme Court’s ruling.

The decision notes that “Adequate evidence in the record supported the Hearing Officer's determination” that the teacher was guilty of multiple specifications charging her with failure to follow procedures and carry out normal duties, and incompetent and inefficient service during three school years.

Further, said the court, evidence in the record showed that the teacher was either unwilling or unable to implement suggestions and constructive criticism of her ineffective teaching methods.

Quoting the Pell Doctrine [Pell v Board of Education, 34 NY2d 222], the Appellate Division said that under the circumstances the penalty of termination “does not shock our sense of fairness.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03035.htm

Disciplinary hearing held in absentia after employee's attorney’s motion to withdraw from the matter is granted by the administrative law judge

Disciplinary hearing held in absentia after employee's attorney’s motion to withdraw from the matter is granted by the administrative law judge

New York City Office of Administrative Trials and Hearings,OATH Index No 911/13

The New York City Administration for Children’s Services filed eight disciplinary charges, alleging, among other acts of misconduct, that a Juvenile Counselor employed by Children's Services failed to immediately investigate, report, and document a reported incident of alleged child abuse at a juvenile detention center and then later failed to cooperate fully in an investigation of the matter.

The employee failed to appear at the hearing as scheduled. His attorney, however, did appear at the hearing and stated that she had made numerous attempts to contact the employee by Federal Express, by mail, and by telephone, but was unsuccessful. The attorney provided OATH Administrative Law Judge Ingrid M. Addison with proof that she had notified the employee of the hearing date and had notified the employee that she might withdraw representation if she did not hear from him.

The employee’s attorney, based on the employee’s failure to communicate with her, asked to be relieved as counsel pursuant to §1-12(a) of OATH’s Rules of Practice.*

Judge Addison granted the attorney's motion because the employee’s failure to communicate with her rendered her representation of the individual unreasonably difficult and because the ALJ could foresee no “material adverse effect on the interest of [the employee]."

The ALJ then proceed to hold the disciplinary hearing in absentia** and found that: Children’s Services 

[1] Children’s Services had proven seven of its eight allegations;

[2] That there was undisputed evidence of the employee’s misconduct; and 

[3] That there was no mitigating circumstance for the employee’s failure to perform his duty..

Children’s Services had requested a 45-day suspension without pay. Judge Addison agreed that this was an appropriate penalty under the circumstances and recommended that the employee be suspended without pay for forty-five days.

* §1-12(a), Chapter 1, Subchapter B, of OATH’s Rules of Practice provides as follows: An attorney who has filed a notice of appearance shall not withdraw from representation without the permission of the administrative law judge, on application. Withdrawals shall not be granted unless upon consent of the client or when other cause exists as delineated in the applicable provisions of the Code of Professional Responsibility.

** The matter proceeded as an inquest after the Children’s Services presented its proof of service of the notice of the hearing by certified and regular mail addressed to the employee’s address on file with Children’s Services. The certified mailing to the employee was returned by the United States Postal Service marked “unclaimed.”

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-911.pdf

Governor Cuomo makes millions of additional records available on the Internet

Governor Cuomo makes millions of additional records available on the Internet

On May 1, 2013, Governor Andrew M. Cuomo made millions of additional records from multiple government agencies available on New York’s new, comprehensive data transparency website, Open.ny.gov, which was launched earlier this year to provide user-friendly, one-stop access to data from the state, localities and the federal government.

The data featured in a new “Transparency” sectionon the website includes: campaign contribution and expenditure records from the New York State Board of Elections dating back to 1999; New York State lobbying and enforcement records from the Joint Commission on Public Ethics; attorney registration as far back as 1898 from the Office of Court Administration; the New York State employee phone directory; and information on public authorities from the Authorities Budget Office.

The voluminous additional data can be searched by keyword, cross-referenced with other public datasets, downloaded for analysis, and graphed, mapped or charted using the tools available through the website.

The data published includes:

· Campaign Contributions, Expenditures, and Committees: Over seven million records of campaign contributions and expenditures dating back to 1999, along with a complete list of candidate committees registered with the Board of Elections;

· Lobbying: Complete disclosure data from the last six years of lobbying reports required under New York State law from lobbyists, clients, and public corporations. Data includes the identities of lobbyists and clients, lobbying expenditures and compensation, and subjects lobbied. The site also includes information newly required under the Public Integrity Reform Act of 2011 on client sources of fundingand lobbyist- and client-reportable business relationships, as reported to the Joint Commission on Public Ethics, plus information on lobbyist disbursement of public money;

· Attorney Registration: New York State attorney registration information, including the admission date, current status (i.e., registered, disbarred, deceased, etc.), and other public information about all attorneys registered in New York State, including attorneys admitted to practice law as far back as 1898; and

· Budget Vetoes: To further increase transparency in the New York State budget process, the site now provides information about budget vetoes in the current budget. Following the enactment of the 2013-14 budget, Governor Cuomo vetoed 202 items that were added by the Legislature. Searchable, downloadable information on these vetoes is now available, including the justification for each item.

Open.ny.gov also now contains data on enforcement activities taken by the Joint Commission on Public Ethics and its predecessors dating back to 2008 and by the New York State Office of the Inspector General dating back to 2010; a new integrated list of public authorities as identified by the Authorities Budget Office; and a searchable, downloadable directory of New York State government employees, including office telephone numbers.

A contract of employment may shorten the controlling statute of limitations available to the employee with respect to his or her suing the employer if not unreasonable or “the product of overreaching”

A contract of employment may shorten the controlling statute of limitations available to the employee with respect to his or her suing the employer if not unreasonable or “the product of overreaching”
Hunt v Raymour & Flanigan, 2013 NY Slip Op 02715, Appellate Division, Second Department

Although contracts of employment are the exception with respect to most employments in the public sector, the decision by the Appellate Division in Hunt v Raymour and Flanigan, a decision involving a lawsuit between a former employer in the private section and its former employee, may be worthy of note by some public employers.

Thomas Huntsigned an application for employment with Raymour & Flanigan (R & F) that included a clause providing that "any claim or lawsuit relating to [his] service with [R & F] must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit." The employment application also stated that Hunt “agreed that he waived any statute of limitations to the contrary.”

Hunt was terminated by R & F some three years later. More than six months after his employment was terminated, Hunt sued R & F and one of R & F’s vice presidents seeking to recover damages based on alleged “employment discrimination and retaliation in violation of Executive Law §296 and [the] Administrative Code of the City of New York §8-107.”

Supreme Court denied R & F motion to dismiss the first and second causes of action asserted by Hunt against R & F in the action he had filed against it and R & F filed a notice of appeal challenging this aspect of Supreme Court's ruling *

Considering R & F’s appeal, the Appellate Division explained that when reviewing a motion to dismiss a complaint pursuant to CPLR §3211(a)(1), "dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law." In this instance, said the court, R & F submitted documentary evidence in the form of the employment application, which demonstrated that Hunt contractually agreed to commence any claim or lawsuit against R & F no more than six months after the date of the employment action that was the subject of the claim or lawsuit.

Significantly, the court stated that "The parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations [and] [a]bsent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced" by the courts.

Accordingly, the Appellate Division ruled that Hunt’s arguments that the shortened limitations period set forth in the employment application was not applicable or was unenforceable were without merit. Thus, as Hunt commenced this action more than six months after the date on which his employment terminated, his first and second causes of action insofar as asserted against R & F should have been dismissed by Supreme Court pursuant to CPLR 3211(a)(1).

* The Appellate Division noted that “R & F's contentions on appeal that the third and fourth causes of action should have been dismissed [by Supreme Court] are not properly before this Court.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02715.htm