Unsatisfactory performance rating

Unsatisfactory performance rating 
2014 NY Slip Op 03765, Appellate Division, First Department

A second-year probationary teacher took over the class in the second week of November. The principal gave her Unsatisfactory Performance Rating [U-rating] at the end of the school year based on facts indicating a lack of progress toward implementing suggestions to improve the teaching and learning environment in the classroom, together with the principal’s view that the teacher had inherited a well-managed class without instructional and disciplinary concerns which deteriorated under the probationary teacher's leadership.

The teacher filed an Article 78 petition seeking a court order annulling her U-rating for the school year. Supreme Court granted her petition and remanding the matter to the New York City Board of Education for a new determination of the teacher’s performance rating for that year.

The Appellate Division unanimously reversed the Supreme Court ruling “on the law,” explaining that on the records presented the teacher failed to demonstrate that the U-rating was arbitrary and capricious, or made in bad faith.

The court said that the record showed a rational basis for the conclusion that the teacher’s performance was unsatisfactory as evidenced by the three formal classroom observation reports describing her performance in class management and engagement of students. While the teacher asserted that she did not receive any mandatory pre-observation conferences before any of her classroom observations, she has not established that the U-rating was made in violation of a lawful procedure or substantial right

The teacher also alleged that she was never provided a curriculum or a professional development plan, that the school's administration did not help her manage the class's continued disciplinary problems and that no member of the administration modeled lesson plans for her. However, said the court, the record established that she had received professional support and that she had not sufficiently progressed during the year.

As examples, the Appellate Divisions noted that the teacher had been observed in the classroom three times and had received unsatisfactory ratings for the last two observations. Further, each observation was followed a report indicating areas for improvement and which set out specific recommendations for addressing observed the deficiencies.

Another factor considered by the court: the record indicated that the teacher was provided with professional development sessions after receiving her first unsatisfactory report but the same instructional deficiencies continued to appear in the next observation report, indicating that the teacher “had not implemented the recommendations for improvement.”

BLACK LETTER law may not be that black

BLACK LETTER LAW may not be that black
Source: New York Times article by Adam Liptak

In an article captioned "Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing" that appeared in the New York Times dated May 24, 2014, Adam Liptak introduces the subject to the reader as follows:

“WASHINGTON — The [United States] Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.”

Professor Lazarus’ article, now in draft, is scheduled for publication in the December 2014 issue of the Harvard Law Review.

Mr. Liptak’s article is posted on the Internet at:

http://mobile.nytimes.com/2014/05/25/us/final-word-on-us-law-isnt-supreme-court-keeps-editing.html?from=us

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Lying to investigators

Lying to investigators
2014 NY Slip Op 03623, Appellate Division, First Department

A New York Police Officer challenged her dismissal from her position as a police officer. The Appellate Division unanimously denied her petition, noting that “The penalty of dismissal does not shock the conscience in that petitioner was found to have engaged in serious misconduct, and admitted other less serious charges committed during her short career as a police officer”.

The court found that there was substantial evidence to support finding her guilty of certain disciplinary charges, including her admissions that she lied to federal agents conducting a drug trafficking investigation.

In Bryson v. United States, 396 U.S. 64 (1969), the United States Supreme Court said: "Our legal system provides methods for challenging the Government's right to ask questions - lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood."

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Teacher’s prior unblemished record of service did not mitigate imposing termination as the penalty after being found guilty of professional misconduct and other charges

Teacher’s prior unblemished record of service did not mitigate imposing termination as the   penalty after being found guilty of professional misconduct and other charges

2014 NY Slip Op 03210, Appellate Division, First Department

A tenured schoolteacher [Teacher] was found guilty of a number of disciplinary charges alleging professional misconduct, neglect of duty, failure to follow procedures and carry out duties, and incompetent and inefficient service during two school years over a two-year period.

Teacher challenged the Department of Education’s decision to terminate her. Supreme Court vacated the termination and remanded the matter to the Department for its determination of a lesser penalty.

The Appellate Division reversed the lower court’s ruling, noting that the Hearing Officer upheld many of the charges and specifications lodged against Teacher, which findings were not challenged on appeal.

Furthermore, said the court, the evidence showed that notwithstanding Teacher's prior unblemished record of service, she continued to blame others and refused to accept responsibility for her failure to effectively manage her classroom and deliver effective instruction and was unwilling to implement any of the school administration's suggestions for improvement.

The Appellate Division held that under the circumstances the penalty of termination “does not shock one's sense of fairness,” applying the so-called Pell standard [Pell v Board of Education, 34 NY2d 222].

___________________________

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://booklocker.com/books/7401.html

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Defending and indemnifying officers and employees of the State involved in litigation

Defending and indemnifying officers and employees of the State involved in litigation

Public Officers Law §§17 and 19

In the event an officer or an employee of the State as the employer is sued in connection some alleged act or omission in the performance of his or her official duties, he or she may seek representation by the State and indemnification in the event he or she is held liable for damages and fees under certain circumstances.*

§17 of the Public Officers Law applies with respect to civil proceedings and provides for the defense and indemnification of officers and employees as defined in Subdivision 1 of §17 in the event such an individual is in a civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the individual was acting within the scope of his or her public employment or duties; or which is brought to enforce a provision of 42 USC 1981 or 42 USC 1983 [Federal Civil Rights Acts]. This duty, however, does not arise where the civil action or proceeding is brought by or on behalf of the State.

The State’s duty to defend or indemnify and save harmless the individual is subject to the following conditions::

1. The individual’s delivery of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after he or she is served with such document to the Attorney General or an Assistant Attorney General at an office of the Department of Law in the State, and

2. The full cooperation of the individual in the defense of such action or proceeding and in defense of any action or proceeding against the State based upon the same act or omission, and in the prosecution of any appeal.

The timely delivery of such documents is deemed a request by the individual that the State provide for his or her defense and indemnification pursuant to §17.

§19 of the Public Officers Law applies in criminal actions and provides for the State to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of an officer or employee of the State as the employer in his or her defense of a criminal proceeding in a State or Federal court:

1. arising out of any act which the individual was acting within the scope of his or her public employment or duties upon his or her acquittal or upon the dismissal of the criminal charges against him or her or

2. incurred in connection with an appearance before a grand jury which returns no true bill against the individual where the individual's appearance was required as a result of any act which occurred while the individual was acting within the scope of his or her public employment or duties if such appearance did not occur in the normal course of the public employment or duties of the individual.

However, such reimbursement is also conditioned on (a) the individual’s timely delivery of a written request for such reimbursement of expenses together with, in the case of a criminal proceeding, the original or a copy of an accusatory instrument within ten days after he or she was arraigned pursuant to such instrument or, in the case of an appearance before a grand jury, written evidence of such an appearance. Such an item is to be delivered to the Attorney General or an Assistant Attorney General at an office of the Department of Law in the State.

In the event a request for reimbursement for reasonable attorneys' fees or litigation expenses or both made by, or on behalf of, the individual, the Attorney General is to investigate and review of the facts and circumstances involved and determine whether such reimbursement shall be paid. The Attorney General is to then notify the individual in writing of that determination.

Another condition to be met by the individual:seeking such reimbursement is his or her full cooperation in the defense of any action or proceeding against the State based upon the same act, and in the prosecution of any appeal.

* §18 of the Public Officers Law authorizes a political subdivision of the State to adopt a law, by-law, rule, resolution or regulation providing for the defense and indemnification of the entity’s officers and employees.
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An applicant for a preliminary injunction must satisfy two tests: a showing of irreparable injury if its application is not granted and its probability of success on the merits

An applicant for a preliminary injunction must satisfy two tests: a showing of irreparable injury if its application is not granted and its probability of success on the merits

Patrolmen's Benevolent Assn. of the City of New York, Inc. v City of New York, 2014 NY Slip Op 03464, Appellate Division, First Department

Three members of the Patrolmen's Benevolent Association of the City of New York, Inc. (PBA) were elected to four-year terms as the sole borough-wide PBA representatives for police officers assigned to the Bronx. The three were issued Release Time certificates pursuant to Mayor's Executive Order #75 (3/22/73) (EO 75) which provided the three elected PBA members with full-time leaves with pay and benefits.

A grand jury indicted the three members in connection with an alleged ticket-fixing scheme.* Pursuant to Civil Service Law §75(3-a), the three individuals were suspended without pay for 30 days, after which they were restored to modified duty. In addition the City rescinded their respective Release Time certificates. The PBA, however, declined the City’s offer to issue new Release Time certificates for three other employees of the union's choice, and filed a contract grievance with the City’s Office of Labor Relations.

After the grievance was denied, petitioners filed a demand for arbitration with the New York City Office of Collective Bargaining seeking to have the certificates reinstated on the ground that the rescission violated the parties' collective bargaining agreement and EO #75. In addition, the PBA filed an application in Supreme Court pursuant to CPLR Article 75 seeking a preliminary injunction barring the revocations of the Released Time Certificates pending arbitration.

Supreme Court granted the PBA a preliminary injunction enjoining the City from denying or revoking the "Release Time" certificates to the three PBA members pending resolution of arbitration proceedings.

CPLR §7502(c) provides that the Supreme Court "may entertain an application for ... a preliminary injunction in connection with an arbitration that is pending The party seeking the preliminary injunction must demonstrate a probability of success on the merits, a danger of irreparable injury in the absence of a preliminary injunction preliminary injunction being issued, and a balance of the equities in its favor.

The City appealed. The Appellate Division, Judges Tom and Gische dissenting, vacated the Supreme Court’s preliminary injunction, explaining that the PBA, even assuming that an arbitration award in its favor would be render ineffectual without such provisional relief, failed to establish a likelihood of success on the merits of the claim to be arbitrated.

* The Appellate Division's opinion states “The indictments of the [three members] on charges related to a ticket-fixing scheme ... include allegations of grand larceny, official misconduct, tampering with public records, and criminal solicitation ...."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03464.htm

Removal of volunteer officers and volunteer members of a volunteer fire department

Removal of volunteer officers and volunteer members of a volunteer fire department
2014 NY Slip Op 03521, Appellate Division, Second Department

The Board of Fire Commissioners expelled a member of the Fire Department. The member sued and Supreme Court annulled the Board’s determination and remitting the matter for a hearing and a new determination.*  thereafter, and the petitioner cross-appeals from so much of the order as failed to grant the petition in its entirety.

The Appellate Division affirmed the lower court’s ruling, explaining that as the member was entitled to a hearing “upon due notice and upon stated charge” under General Municipal Law §209-l but was not afforded one, “the Supreme Court properly annulled the determination and remitted the matter for a hearing and a new determination thereafter.”

GML §209-l addresses the removal of volunteer officers and volunteer members of volunteer fire departments and, in pertinent part, provides:

1. The authorities having control of fire departments of cities, towns, villages and fire districts may make regulations governing the removal of volunteer officers and volunteer members of such departments and the companies thereof.

2. Such officers and members of such departments and companies shall not be removed from office, or membership, as the case may be, by such authorities or by any other officer or body, except for incompetence or misconduct.**

3. Removals on the ground of incompetence or misconduct, except for absenteeism at fires or meetings, shall be made only after a hearing upon due notice and upon stated charges and with the right to such officer or member to a review pursuant to article seventy-eight of the civil practice law and rules. Such charges shall be in writing and may be made by any such authority. The burden of proving incompetency or misconduct shall be upon the person alleging the same.

* On a procedural note, in this instance, “on the Court's own motion,” the notice of appeal and the notice of cross appeal from the [Supreme Court’s] order was deemed to be applications for leave to appeal, and cross-appeal, respectively, and leave to appeal and cross-appeal is granted

** N.B. §209-l, however, further provides that  “The    provisions of this section shall not affect the right of members of any fire company to remove a volunteer officer or voluntary member of such company for failure to comply with the constitution and by-laws of such company.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03521.htm

 _____________________

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

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Discourtesy and failure to obey a lawful order

Discourtesy and failure to obey a lawful order

OATH Index No. 851/14

A computer aide was charged with discourtesy, refusal to obey orders, and inefficient performance.

OATH Administrative Law Judge Faye Lewis found that the aide was guilty of misconduct when she was rude and unhelpful to a day care provider who repeatedly called her for assistance and when she frequently failed to return that provider's telephone calls.

The ALJ also found the aide guilty of misconduct when she closed a door in a colleague's face after the colleague approached to say that a client was waiting to see her, and when she failed to obey orders to provide her supervisor with a case folder and to resubmit a form.

Judge Lewis, however, concluded that it was not misconduct for the aide to tell her colleagues she was on her lunch break and did not want to be bothered, as meal periods are not work time.

As the aide did not have any history of formal discipline, ALJ Lewis recommended that she be suspended without pay for 12 days.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/00_Cases/14-851.pdf
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Acting beyond the scope of one's duties

Acting beyond the scope of one's duties

2014 NY Slip Op 03586, Appellate Division, First Department

The Police Commissioner of the City of New York terminated the employment of a New York City police officer [Plaintiff] based on substantial evidence Petitioner “unnecessarily acted outside his role as an undercover officer and discharged his firearm in violation of department guidelines.”

The Appellate Division sustained the Commissioner’s decision, commenting that under the circumstances “The penalty of termination is not so disproportionate to the offense as to shock the conscience,” citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03586.htm

______________________

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://booklocker.com/books/7401.html

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Home addresses of State employees and retirees may be excluded from disclosure in response to a FOIL request

Home addresses of State employees and retirees may be excluded from disclosure in response to a FOIL request

Empire Ctr. for N.Y. State Policy v New York State Teachers' Retirement Sys., 2014 NY Slip Op 03193, Court of Appeals

In Empire Center for New York State Policy the Court of Appeals held that the Freedom of Information Law, commonly referred to as “FOIL,” permits the names, but not the addresses, of retirees who receive benefits from public employees' retirement systems to be disclosed in response to a FOIL request.

Empire Center submitted a FOIL with the New York State Teachers' Retirement System and the Teachers' Retirement System of the City of New York seeking the names of the retired members of the systems. When the retirement systems refused to provide the names, Empire Center filed CPLR Article 78 petitions to compel disclosure. Supreme Court dismissed both petitions, and the Appellate Division affirmed in each case.*

The Court of Appeals reversed the lower courts’ rulings, explaining that the controlling FOIL provision, Public Officers Law  §89(7), provides, in pertinent part, that:

"Nothing in this article [i.e., FOIL] shall require the disclosure of the home address of an officer or employee, former officer or employee, or of a retiree of a public employees' retirement system; nor shall anything in this article require the disclosure of the name or home address of a beneficiary of a public employees' retirement system ….”**

Thus the home address of a retiree – but not his or her name – fall within the available enumerated exceptions to disclosure set out in FOIL. In contrast, the court noted the name and, or, the home address of  "a beneficiary of a public employees' retirement system" – a person entitled to benefits upon the death of the retiree – may be excluded from disclosure in response to a FOIL request.

The release of some public records is limited by a statute such as Education Law, §1127 - Confidentiality of records or §33.13, Mental Hygiene Law - Clinical records; confidentiality. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the record. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

Addressing the retirement systems’ argument that disclosure should be denied as an "unwarranted invasion of personal privacy" within the meaning of Public Officers Law §87 [2] [b]), the court concluded that  “the idea that anyone's privacy will be invaded is speculative” but in the event a FOIL request that seems to have such a purpose is made, that would be the time to consider the effect of the privacy exemption, including the provision addressing the "sale or release of lists of names and addresses if such lists would be used for solicitation or fund-raising purposes."

* See Matter of Empire Ctr. for N.Y. State Policy v New York State Teachers' Retirement Sys., 103 AD3d 1009 [3d Dept 2013]; Matter of Empire Ctr. for N.Y. State Policy v Teachers' Retirement Sys. of the City of New York, 103 AD3d 593 [1st Dept 2013]

** The Freedom of Information Law does not bar an employee organization, certified or recognized for any collective negotiating unit of an employer pursuant to Article 14 of the Civil Service Law, “to obtain the name or home address of any officer, employee or retiree of such employer, if such name or home address is otherwise available under this article."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03193.htm

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