California Superior Court Judge holds that California's teacher tenure laws are unconstitutional,

California Superior Court Judge holds that California's teacher tenure laws are unconstitutional

Source: Findlaw – Breaking Legal Documents [By Adam Ramirez, June 10, 2014]

“California's laws on teacher tenure, layoffs and dismissals deprive students of their constitutional right to an education, a Los Angeles Superior Court judge ruled Tuesday, June 10, 2014.*

“The ruling is a serious defeat for teachers' unions that overturns several California laws that govern the way teachers are hired and fired. 

“The 16-page decision (see Internet link below) may set off a slew of legal fights in California and other states, where many education reform advocates are eager to change similar laws.

‘There is ... no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms,’ Judge Rolf M. Treu wrote. ‘Substantial evidence presented makes it clear to this court that the challenged statutes disproportionately affect poor and/or minority students. The evidence is compelling. Indeed, it shocks the conscience’

“Enforcement of the much awaited ruling in Vergara v. California will be delayed pending an appeal by the lawsuit's defendants, the state and California's two major teachers unions.”

Court in New York State have addressed efforts by a number of school districts to “eliminate tenure.”

In Conetta v Patchogue-Medford Union Free School District, 165 Misc2d 329, a New York State Supreme Court Judge ruled that a school board could not refuse to grant tenure to a teacher who had successfully completed his or her probationary period because it believed that "that tenure at the elementary and secondary school level [in contrast to tenure granted to college and university faculty] was essentially guaranteed job security ... coupled with automatic salary increases."

Similarly, in Costello v East Islip UFSD Supreme Court** ruled that a school board could not refuse to grant tenure to a teacher who had successfully completed his or her probationary period. 

Apparently mindful of the Conetta ruling, East Islip decided to take a different tack in an effort to avoid having to give newly hired teachers tenure upon their satisfactory completion of probation by adopting a resolution providing that all new teachers hired by the School District were to be employed under individual contracts providing for specified terms of employment.

To emphasis the point, the contracts included provisions intended to constitute "waivers" of the probation and disciplinary rights provided to teachers in the Education Law. The court noted that the characterization of the waiver as "voluntary" is questionable since there was no indication that any teacher refusing to agree to such a waiver would be hired.

The Appellate Division affirmed, holding although East Islip was correct that a teacher's rights with respect to tenure are waivable when the waiver is "freely, knowingly, and openly arrived at without the taint of coercion or duress," this does not, however, give the Board the authority to eliminate the tenure system altogether. 

Citing Carter v Kalamejski, 255 App Div 694, aff'd 280 N.Y. 803, the Appellate Division explained that “the tenure system is a legislative expression of a firm public policy determination that the interests of the public in the education of our youth can best be served by a system designed to foster academic freedom and to protect competent teachers from the threat of arbitrary dismissal.” In contrast, the court observed that providing tenure by contract terminating automatically at the expiration of the contract period as proposed by East Islip was “the very system sought to be eliminated by the enactment of the tenure statutes of the Education Law and the change to a system of permanence.”***

In Conetta, State Supreme Court Judge Lockman suggested that if a school district wishes to stop granting tenure, it could make such a demand in the course of collective negotiations authorized by Article 14 of the Civil Service Law, the Taylor Law.

* The decision is posted on the Internet at:

http://www.scribd.com/doc/229011497/Teacher-Tenure-Laws-Are-Unconstitutional-Shock-the-Conscience-CA-Judge-Rules

** Costello v East Islip UFSD, Supreme Court [not selected for publications in the official reports] Affirmed 250 A.D.2d 846. See, also, Lambert v Board of Educ. of Middle Country Cent. School Dist., 174 Misc.2d 487,

*** In Yastion v Mills, 229 A.D.2d 775, the Appellate Division decided that a teacher may work on a year-to-year contractual basis and never acquire tenure even after three years of service. Orange-Ulster BOCES had appointed Yastion to a federally funded position and his annual employment contracts specifically indicated that "tenure does not apply to this position."

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Giving of false statements in the course of an official investigation constitute grounds for dismissal from municipal employment

Giving of false statements in the course of an official investigation constitute grounds for dismissal from municipal employment

2014 NY Slip Op 03944, Appellate Division, First Department

A New York City police officer [Plaintiff] was terminated from his position based on a finding that he had made false statements regarding his whereabouts to an investigating officer during a department "GO-15"* interview concerning his alleged unauthorized absence from his home while on sick report. Plaintiff admitted that he knew he was required to remain at his residence while on sick report and that he gave a false account of the reason for his absence at the GO-15 interview.

Plaintiff challenged his termination alleging that the penalty of dismissal was excessive and an abuse of discretion. The Article 78 petition filed by his then attorney was dismissed because the attorney had filed to file a timely appeal. Plaintiff then initiated an action against the attorney to “recover damages for legal malpractice” but Supreme Court dismissed Officer’s petition alleging legal malpractice.

The Appellate Division affirmed the lower court’s ruling, explaining that in an action for legal exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty caused his or her plaintiff-client to sustain "actual and ascertainable damages." Further, said the court, to establish causation, the plaintiff-client must show that he or she “would have prevailed in the underlying action or would not have incurred any damages ‘but for’ the lawyer's negligence."

Supreme Court had granted the respondent attorney’s motion for summary judgment after finding this critical "but for" element was missing as Officer would not have prevailed in the underlying Article 78 proceeding challenging his dismissal from his position. The Appellate Division concurred with the Supreme Court’s ruling noting that “The giving of false statements in the course of an official investigation has been upheld as a ground for dismissal from municipal employment," citing Duncan v Kelly, 43 AD3d 297, affirmed 9 NY3d 1024.

As the United States Supreme Court held in Bryson v. United States, 396 U.S. 64 (1969), "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."

* A GO-15 interview is one conducted "in connection with allegations of serious misconduct or corruption." 
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Acting on information provided by the employer later proved to be incorrect does not create a right that was not otherwise available to the individual

Acting on information provided by the employer later proved to be incorrect does not create a right that was not otherwise available to the individual
2014 NY Slip Op 04051, Appellate Division, First Department

A former Court of Claims Judge and acting Supreme Court Justice, relying on the erroneous advice of employees of the Office of Court Administration (OCA) that he was vested in his New York State Health Insurance Program (NYSHIP) resigned from his position. He subsequently learned that he was not eligible to vest his NYSHIP benefits and thus was not eligible for NYSHIP benefits under the law.

Asserting that he would not have resigned from his position when he did if not for this advice, he filed a petition in the Court of Claims seeking a court order reinstating him as a NYSHIP participant or, in the alternative, an order awarding him money damages. The Court of Claims granted OCA’s motion to dismiss the action.

The Appellate Division, affirming the Court of Claim’s ruling, held that notwithstanding the incorrect information provided by the OCA employees, which was ministerial in nature, and which might subject the governmental body to liability, no claim of a “special duty was advanced by the former judge in contrast to his being treated same as any other employee seeking advice or information from OCA.

Accordingly, said the court, OCA may not be estopped from applying the law to the former judge notwithstanding the incorrect information given to him by an OCA employee and upon which he acted to his detriment.

Citing Matter of Grella, 38 AD3d 113, the Appellate Division explained that estoppel may not be invoked to prevent a governmental agency from performing its duty is not applicable here.*In Grella, a case involving eligibility for certain retirement benefits, the court held that even when erroneous advice was given by a Retirement System employee, the Comptroller has the exclusive authority to determine entitlement to retirement benefits and the duty to correct errors and cannot be estopped from exercising such duties in order "to create rights to retirement benefits to which there is no entitlement."

* The decision notes that the “the narrow exception to the rule” barring the application of estoppel to a governmental agency was not applicable in this case. [See, also, 2014 NY Slip Op 03907, Appellate Division, Third Department, summarized at http://publicpersonnellaw.blogspot.com/2014/06/the-consequences-of-withdrawing-from.html]
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