Educator disciplined after posting comments on an Internet social media website

Educator disciplined after posting comments on an Internet social media website

Supreme Court granted an educator’s petition to set aside the hearing officer's determination that led to the termination of her employment with the New York City Department of Education following a disciplinary hearing “to the extent of remanding the matter for the imposition of a lesser penalty.” The Appellate Division affirmed the lower court’s ruling.

According to the decision, the educator had posted comments on a social media website on the Internet alluding to a tragedy involving an unknown student at a different school. Although the court said that the comments “were clearly inappropriate,” it explained that the educator’s purpose was to “vent her frustration only to her online friends after a difficult day with her own students.”

Initially the educator denied the incident but she subsequently admitted to making the comments at the disciplinary hearing. She also acknowledged that the comments were inappropriate and offensive and repeatedly expressed remorse at having posted them.

The Hearing Officer found that the educator had engaged in a plan with her friend to mislead investigators right after the allegations surfaced. However, the Appellate Division said that Supreme Court “reasonably concluded that the educator’s actions were taken out of fear of losing her livelihood rather than as part of a premeditated plan.”

Under the circumstances, and in consideration of the educator’s not having ever before been the subject of a disciplinary action during her 15-year career and her avowing that she would never engage in a similar act again, the Appellate Division agreed with the Supreme Court’s finding that the penalty of termination was “shocking to one's sense of fairness.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03272.htm

Educator disciplined after posting comments on an Internet social media website

Supreme Court granted an educator’s petition to set aside the hearing officer's determination that led to the termination of her employment with the New York City Department of Education following a disciplinary hearing “to the extent of remanding the matter for the imposition of a lesser penalty.” The Appellate Division affirmed the lower court’s ruling.

According to the decision, the educator had posted comments on a social media website on the Internet alluding to a tragedy involving an unknown student at a different school. Although the court said that the comments “were clearly inappropriate,” it explained that the educator’s purpose was to “vent her frustration only to her online friends after a difficult day with her own students.”

Initially the educator denied the incident but she subsequently admitted to making the comments at the disciplinary hearing. She also acknowledged that the comments were inappropriate and offensive and repeatedly expressed remorse at having posted them.

The Hearing Officer found that the educator had engaged in a plan with her friend to mislead investigators right after the allegations surfaced. However, the Appellate Division said that Supreme Court “reasonably concluded that the educator’s actions were taken out of fear of losing her livelihood rather than as part of a premeditated plan.”

Under the circumstances, and in consideration of the educator’s not having ever before been the subject of a disciplinary action during her 15-year career and her avowing that she would never engage in a similar act again, the Appellate Division agreed with the Supreme Court’s finding that the penalty of termination was “shocking to one's sense of fairness.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03272.htm

Application seeking the removal of the school superintendent found fatally defective because it failed to contain the language required by the Commissioner’s regulations

Application seeking the removal of the school superintendent found fatally defective because it failed to contain the language required by the Commissioner’s regulations*
Decisions of the Commissioner of Education, Decision No. 16,479

Linda Wallace, alleging that school superintendent Randy Richards made “inaccurate, misleading and designed to intimidate voters” in connection with the adoption of a school budget, asked the Commissioner to remove Dr. Richards from his position.

The Commissioner dismissed Wallace’s application for technical reasons, explaining that Wallace's application for Dr. Richards’ removal must be denied because the notice of petition was defective.

Here the Commissioner’s regulations require that the notice accompanying a removal application specifically advise the school officer that an application is being made for his or her removal from office (see 8 NYCRR §277.1 [b]). Here, however, Wallace failed to give such notice and, instead, used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.

The Commissioner said that “A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent.

Notwithstanding the dismissal of Wallace’s application on procedural grounds the Commissioner noted that had Wallace’s the application not been denied on procedural grounds, it would be denied on the merits.

A member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.

Further, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

The record indicates that Dr. Richards “adequately explained the basis for his statements regarding the impact of a contingency budget in relation to current levels of district funding. Although Wallace may disagree with Dr. Richard’s approach, she has not demonstrated that [Dr. Richard’s] action was motivated by a wrongful purpose."

To the extent that Wallace sought a determination as to whether Dr. Richards’ actions were in the best interest of the district, the Commissioner said this aspect of the appeal must be dismissed as it is well established that the Commissioner “does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310.”

Turning to a “final” administrative matter, the Commissioner noted that Dr. Richards had requested that the Commissioner issue a certificate of good faith pursuant to Education Law §3811(1) to him. Such certification is solely for the purpose of authorizing the board to indemnify Dr. Richards for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his powers or performance of duties as a school district officer.

It is appropriate to issue such certification unless it is established on the record that the requesting officer acted in bad faith. In view of the fact that Wallace’s application was dismissed on procedural grounds and there was no finding that Dr. Richards acted in bad faith, the Commissioner certified that “solely for the purpose of Education Law §3811 [Dr. Richard] appears to have acted in good faith.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/documents/d16479.pdf

* See, also, Application of Stacia Kroniser, Decisions of the Commissioner of Education, Decision No. 16,469, posted on the Internet at http://www.counsel.nysed.gov/Decisions/volume52/documents/d16469.pdfand the Appeal of Stacia Kroniser, Decisions of the Commissioner of Education, Decision No. 16,470, posted on the Internet at:  

http://www.counsel.nysed.gov/Decisions/volume52/documents/d16470.pdf

Strange Bedfellows – How the Commissioner’s Edict on “Quiet Agreements” Aligned Teachers’ Unions and School Districts

Strange Bedfellows – How the Commissioner’s Edict on “Quiet Agreements” Aligned Teachers’ Unions and School Districts by Edward A. Trevvett, Esq. Source:  NYMUNIBLOG - http://nymuniblog.com/?author=1 - Published by Harris Beach PLLC as a public service. Reproduced with permission. Copyright ©2013 -  All rights reserved.

"The New York State Education Department has managed to create quite a hullabaloo with its April 26, 2013* memo to school district and BOCES superintendents declaring void all “quiet agreements” between districts and their teachers’ unions that mitigate the use of this year’s student assessments in teachers’ APPR growth scores, particularly when the resulting teacher rating is “ineffective.”  At the heart of the matter are the new Common Core student assessments that began this year, which in turn reflect on teachers’ APPR scores and performance ratings.  The Common Core Standards, which have the laudable goal of making our children better prepared for college and careers, concomitantly dramatically increases the rigor of student assessments.  Teachers unions and school districts expect that student assessment scores based on the new Common Core Standards will be significantly lower, at least for the first couple of years.  That has led to some districts and unions to negotiate what the Commissioner of Education calls “quiet agreements” outside the APPR plans they jointly submitted to SED. The agreements set forth how the student assessments will be mitigated as a factor in a teacher’s APPR rating for the first year of the new APPR implementation. In one such “quiet agreement” entered into between the Buffalo City School District and its teachers union on January 15, 2013, the District promised not to use the first year of an ineffective rating to base the needed two years of consecutive ineffective evaluations as grounds to bring formal disciplinary charges against a tenured teacher for termination.

"That agreement between the Buffalo City School District and its teachers apparently rankled SED and resulted in its April 26 memowhich states in part:

"As part of the signed certification in each APPR plan, each superintendent (or BOCES District Superintendent) and the presidents of the district’s or BOCES’ board of education and teachers’ and administrators’ union acknowledged that such plan is the sole plan for the APPR of all classroom teachers and principals in the district or BOCES. With respect to all approved APPR plans, the Department considers void any other signed agreements between and among those parties to the extent that such agreements conflict with the approved APPR plan and the requirements of Education Law § 3012-c and Subpart 30-2 of the Rules of the Board of Regents (“regulations”), and does not recognize any such agreements as part of any approved APPR plan. School districts and BOCES must implement the terms of their approved APPR plans consistent with the requirements of Education Law § 3012-c and the regulations. (emphasis added)

"In response to SED’s April 26 memo, the New York State United Teachers (NYSUT) union wrote a scathing letter to SED Commissioner John King on April 30, 2013, repudiating SED’s position that it has the authority to void agreements negotiated under the Taylor Law. In that letter, NYSUT President Richard C. Iannuzzi states:

"I am writing concerning Dr. Rafal-Baer’s April 26 memorandum to school and district superintendents.

"While SED has the authority to approve APPR plans, it has no authority, beyond that limited power, to void or to pass on the legality of any agreement negotiated under the Taylor Law. Further, SED has no authority to issue a general pronouncement about the validity of Taylor Law agreements it has not reviewed and has no legal authority to review. Accordingly, we have advised each of our locals that we will take every appropriate measure to enforce any Taylor Law agreement negotiated in good faith with its Board of Education. If a dispute arises over the legality of any such agreement, the issue will be decided by PERB or the courts, not by SED.  (emphasis added)

"Dr. Rafal-Baer’s memo is an unfortunate continuation of SED’s repeated attempts to undermine Education Law 3012-c’s collective bargaining provisions. NYSUT continues to support the proper implementation of the law, but will not allow the rights of educators to be abused or the voice of educators to be silenced by SED’s attempts to take away their collective bargaining rights.

"SED’s April 26 memo has created what some would view as strange bedfellows in that many, if not most, School Superintendent and BOCES District Superintendents would wholeheartedly agree with NYSUT on this issue.  Insofar as SED’s memo is concerned, the key word in its pronouncement that “the Department considers void any other signed agreements between and among those parties to the extent that such agreements conflict with the approved APPR plan . . . .”  is CONFLICT.  In order to meet their statutory and regulatory requirements to the Commissioner, school districts and BOCES need only confirm that the provisions of their APPR plan are being implemented as set forth and as approved by SED in accordance with Education Law Section 3012-c and Subpart 30-2 of the Commissioner's Regulations.  Any side agreement on when a district or BOCES will or will not pursue disciplinary action under the new amended Section 3020-a provisions are separate and apart from the APPR plan.  The agreements are really about Education Law Section 3020-a(3)(c)((i-a) and not 3012-c.  Under the Section 3020-a amendments, it remains in a district’s discretion, not that of SED, to file disciplinary charges at the local level to terminate a teacher.

"In a press release also issued on April 30, the Commissioner appeared to somewhat minimize the Department’s definitive position set forth in its April 26 memo. In that press release the Commissioner indicated that while he expected “… roughly the same percentage of teachers to be identified in each performance category (Ineffective, Developing, Effective, Highly Effective) this year as last year.  We have asked districts to be thoughtful in their use of the data from this first year of Common Core assessments when evaluating teacher performance and we have every confidence that they will be.”  The Commissioner has failed to define or even hint at his interpretation of “thoughtful” in this high stakes context.  (emphasis added)

"In a postscript to the Buffalo City School District’s “quiet agreement” with its union, The Buffalo News reported that with a $50 million state aide gun to its head, the Superintendent of the Buffalo City School District issued a written statement informing the teachers union that “The state Education Department has determined that the memorandum of understanding dated Jan. 15, 2013, between the Buffalo City School District and the Buffalo Teachers Federation is void.”  Her written statement further clarifies that “The district will proceed in accordance with the department’s determination.”  

"In response, the union issued its own statement saying, “As far as we’re concerned, the agreement that we reached stands, and we will take whatever action is necessary to enforce that agreement, because it was fair.” BTF President Philip Rumore further stated, “If there has to be a battle, so be it.”

"With these ongoing threats of legal challenges over testing, data and teacher evaluations as set forth by the Commissioner and quickly followed by the Teachers’ Unions – Let the Games Begin!"

====================

* NYPPL notes that on April 26, 2013 Governor Andrew M. Cuomo issued the following statement:

"The State Education Department is correct in refusing to recognize any side deals between the Buffalo's teachers union and the school district. The suggested collusion was a borderline legal and ethical fraud on our students and the Buffalo superintendent was right to affirm that no side deals will be recognized. We promised the students’ performance - they deserve it and they will have it."