ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

February 04, 2015

Recent findings and recommendations of OATH Administrative Law Judges


Recent findings and recommendations of OATH Administrative Law Judges
Source: New York City Office of Administrative Trials and Hearings
[Click on text highlighted in color  to access the full text of the determination]

Failure to return lost property to patient

Employee, a hospital institutional aide, was charged with failing to follow protocol for returning found property and with being intoxicated while on duty. Employee took possession of a patient's clock radio that was left behind during a patient move. Employee testified that she placed the radio on her cart for safekeeping, with the intent of giving it to her supervisor at the end of her shift, but that she was confronted by the patient's son before she could do so and she returned it to him. 

ALJ Alessandra F. Zorgniotti recommended dismissal of the charge finding that Employer did not prove that Employee was on notice of a rule or policy mandating the immediate report of lost property to a supervisor. Employee's decision to wait until the end of her shift to bring the radio to housekeeping was not so unreasonable as to be considered negligence. 

As for the intoxication charge, the son's claim that he smelled alcohol on Employee's breath when he walked alongside her was contradicted by surveillance video which showed Employee left the room first and the son followed several paces behind and testimony from Employee's supervisor, who did not smell alcohol. 

Dismissal of the charges recommended. 


Unauthorized absences

Employee, a service aide, was charged with five individual absences without authorization, a long-term period of absence without authorization and failing to adhere to two directives to resolve her employment status. 

The charges were established by documentary evidence and the testimony of Employer's witnesses. 

Employee had been previously disciplined for similar wrongdoing and was aware of Employer's policies and procedures. 

ALJ Kara J. Miller recommended termination of Employee's employment.  


Placement on involuntary leave pursuant to §72 of the Civil Service Law
Human Resources Admin. v. M.O., OATH Index No. 173/15

Employer sought to place employee, a clerical associate, on an involuntary leave of absence under §72 of the Civil Service Law, alleging that she is mentally unfit to perform the duties of her position. Employer had directed Employee to undergo psychiatric evaluation after Employee continually exhibited inappropriate, disruptive, and aggressive behavior at work. 

The evaluating psychiatrist offered testimony and a report declaring that Employee suffered from a severe functional psychiatric disorder and that her behavior was incompatible with her work duties. Employee maintained that she was fit to work, submitting a one-paragraph letter from her treating psychiatrist. 

Following a hearing, ALJ Astrid B. Gloade found Employer's proof more persuasive and she recommended that Employee be placed on §72 disability leave.  

To learn of the disposition of the OATH ALJ’s recommendations by the referring agency, please contact OATH's calendar unit at 1-844-628-4692.
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February 02, 2015

Determining when the statute of limitations commences to run with respect to a “quasi-legislative” administrative determination


Determining when the statute of limitations commences to run with respect to a “quasi-legislative” administrative determination
Matter of School Adm'rs Assn. of N.Y. State v New York State Dept. of Civ. Serv., 2015 NY Slip Op 00676, Appellate Division, Third Department

On May 15, 2012, the New York State Department of Civil Service's Employee Benefits Division issued policy memorandum indicating the circumstances under which an employee of an agency participating in the New York State Health Insurance Program [NYSHIP] may decline health insurance enrollment in NYSHIP in exchange for a cash payment or other benefit, which policy was to take effect immediately.. 

Insofar as was relevant in this action, the policy provided that such an employee could “opt out” of NYSHIP coverage in exchange for a monetary payment only if he or she had health insurance coverage available under another employer-sponsored group other than NYSHIP. Significantly, the policy precluded an employee's receiving an opt-out payment if he or she had health insurance coverage as the dependent of a spouse having health insurance through NYSHIP. 

The Brentwood Union Free School District [Brentwood] was a NYSHIP participating employer. Although not contractually obligated to do so, Brentwood had offered a buyout program for a number of years that enabled its employees to decline NYSHIP coverage in exchange for a monetary payment representing 50% of the premium that the District otherwise would have paid to NYSHIP to provide health insurance coverage for such employee. With the promulgation of the May 15, 2012 policy Brentwood would discontinue the “opt-out” payments to its employees having dependent health insurance coverage under his or her spouse’s health insurance coverage through NYSHIP.

On March 4, 2013, the School Administrator’s Association of New York State commenced a combined CPLR Article 78/action for declaratory judgment on behalf of a number of its members employed by Brentwood affected by the May 15, 2012 policy. The Association asked the court, among other things, to declare the policy null and void and to enjoin Brentwood “from discontinuing its past practice of offering the original NYSHIP buyout program.” 

As to the “past-practice” issue involving the Brentwood employees, Supreme Court found that this claim fell within the exclusive jurisdiction of the Public Employment Relations Board and, therefore, dismissed this element of the action “for lack of subject matter jurisdiction.”

As to the Article 78 action, Supreme Court found that the four-month statute of limitations began to run on the effective date of the policy — May 15, 2012 — and, accordingly, dismissed the Association’s proceeding/action as untimely, since it had been fiiled more than four months after the effective date of the policy. The Association appealed the Supreme Court’s ruling with respect to the timeliness of its Article 78 action.

The Appellate Division, noting that the Association had attempted to mitigate the impact of the policy by filing an improper practices charge against Brentwood with the Public Employment Relations Board alleging it had unilaterally altering its buyout program without engaging in collective bargaining, affirmed the Supreme Court’s determination, explaining that this effort did not affect the finality of the Department of Civil Service's determination.

The parties agree that this combined CPLR Article 78 proceeding and action for declaratory judgment was governed by a four-month statute of limitations. Accordingly, said the court, both the statute and case law make clear that the statute of limitations period for a CPLR Article 78 proceeding begins to run when "the determination to be reviewed becomes final and binding upon the petitioner." The Appellate Division said that the administrative action "becomes 'final and binding' when two requirements are met: 

1. Completeness (finality) of the determination; and 

2. Exhaustion of administrative remedies. 

This event is measured by the administrative agency having reached “a definitive position on the issue” that first, allegedly inflicts actual, concrete injury and second, the injury inflicted may not be “significantly ameliorated by further administrative action or by steps available to the complaining party."

In this instance, said the court, the quasi-legislative determinations such as the one at issue here does not require actual notice of the challenged determination but rather the statute of limitations begins to run once the administrative agency's "definitive position on the issue [becomes] readily ascertainable" to the complaining party. The Appellate Division said that the Department of Civil Service had satisfied this notice requirement by, among other things:

1. Mailing copies to the chief executive officers of all participating agencies;

2. Mailing copies to any individual who had requested a copy via the participating agency "Courtesy List;" 

3. Posting the memorandum on a website for health benefit administrators (to which union representatives could request access); and

4. Discussing the memorandum at the NYSHIP participating agency regional meetings hosted by the Department of Civil Service in October 2012.

Under these circumstances, said the court, “we are of the view that [the Association’s] claims accrued — and the statute of limitations began to run — upon the effective date of the policy, i.e., May 15, 2012.”

Further, observed the court, even it “were to defer the triggering of the statute of limitations until the October 2012 [NYSHIP ]regional meetings, the instant proceeding and action — commenced in March 2013 — still would be time-barred.”

The decision is posted on the Internet at:
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January 30, 2015

New York State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System reports 90 schoold districts experiencing fiscal stress


New York State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System reports 90 schoold districts experiencing fiscal stress
Source: Office of the State Comptroller

Ninety school districts, more than 13 percent of districts statewide, have been designated as fiscally stressed under New York State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System. DiNapoli’s office evaluated 672 school districts with fiscal years ending on June 30, 2014.

This is the second year DiNapoli’s office has assessed and scored the financial stability of school districts. The second round of scoring designated 10 school districts in “significant fiscal stress,” 27 in “moderate fiscal stress” and 53 as “susceptible to fiscal stress.” Last year, a total of 87 districts were listed in fiscal stress.

Using financial indicators that include year-end fund balance, short-term borrowing and patterns of operating deficits, the monitoring system creates
an overall fiscal stress score which classifies whether a district is in “significant fiscal stress,” in “moderate fiscal stress,” is “susceptible to fiscal stress,” or has “no designation.”

The ten school districts that were classified in “significant stress” were: Wyandanch Union Free School District (Suffolk County); Niagara-Wheatfield Central School District (Niagara); East Ramapo Central School District (Rockland); Lawrence Union Free School District (Nassau); Watervliet City School District (Albany); Copiague Union Free School District (Suffolk); Lewiston-Porter Central School District (Niagara); West Seneca Central School District (Erie); Hempstead Union Free School District (Nassau); and the Peekskill City School District (Westchester).

The announcement did not include scores for the dependent school districts in the “Big Four” cities of Buffalo, Rochester, Syracuse and Yonkers. Information for these districts will be incorporated into the scoring for their respective cities later this year

According to a research report issued January 29, 2015, concerning school districts with the fiscal stress scores, school districts found to be in fiscal stress share a number of common characteristics. Most are operating with low fund balance, a pattern of operating deficits and limited cash on hand. In addition, DiNapoli’s office found high-need urban/suburban school districts were four times more likely to be in fiscal stress than low-need districts.

The report also noted a number of significant improvements among certain school districts. For example, the Kiryas Joel Village Union Free School District in Orange County experienced a 50 percent decrease in its fiscal stress score. Eleven other districts saw a drop of 25 percentage points or more, including: the Elmira City School District (Chemung County), Gananda Central School District (Wayne), General Brown Central School District (Jefferson), Hudson City School District (Columbia), Maine-Endwell Central School District (Broome) and the Tupper Lake Central School District (Franklin).

DiNapoli’s report also highlighted:

1. Regions with the highest number of stressed school districts were Long Island (19 districts);the Capital District (12); Western New York (12); the Southern Tier (11) and Central New York (11);

2. More than 80 percent of school districts statewide were not in a fiscal stress category in either 2013 or 2014;

3. Four districts dissolved and two were newly created in 2014. These districts were not evaluated;

4. 5igh-need rural districts in fiscal stress increased by nearly 3 percentage points; and

5. Operating deficit was the indicator with the largest year-to-year change. This year, 28 percent of districts received a lower score on this indicator (showing less fiscal stress), while 19 percent scored higher (indicating increasing fiscal stress).

For a list of school districts in fiscal stress, visit:
http://www.osc.state.ny.us/localgov/fiscalmonitoring/pdf/schools/2015_SchoolStressList.pdf

For the complete list of school district fiscal stress scores, visit:
http://www.osc.state.ny.us/localgov/fiscalmonitoring/pdf/schools/2015_SchoolSummaryList.pdf

For a copy of the fiscal stress commonalities report, visit:
http://www.osc.state.ny.us/localgov/fiscalmonitoring/pdf/2015_SummaryResultsSchoolDistricts.pdf

January 29, 2015

Employee deemed to have voluntarily resigned from her position found eligible for unemployment insurance benefits under the circumstances


Employee deemed to have voluntarily resigned from her position found eligible for unemployment insurance benefits under the circumstances
Matter of Bowman (City of Niagara Falls--Commissioner of Labor), 2015 NY Slip Op 00425, Appellate Division, Third Department

An individual may have but one domicile at time, i.e., his or her permanent place of abode, which continues until he or she has acquired a new one and any party alleging a change in an individual’s domicile “has the burden to prove the change by clear and convincing evidence."

In contrast, an individual may have multiple places of residence simultaneously, i.e., two or more residences in the same or at different geographical locations -- an apartment in New York City, a cottage at Cape Cod, a flat in London, England -- in which he or she may, from time to time, live, but only one such residence is his or her domicile.

The City of Niagara Falls’ local law requiring its employees to be residents of the City. The local law defined residency as "the actual principal place of residence of an individual, where he or she normally sleeps; normally maintains personal and household effects; the place listed as an address on voter registration; and the place listed as his or her address for driver's license and motor vehicle registration, if any" (Local Law No. 3 [1996] of City of Niagara Falls).

Sandra M. Bowman, who had been employed by the City from 1986 to 2011, was terminated after being deemed to have voluntarily resigned from her position in the Community Development Department for allegedly violating the City's local law requiring its employees to be residents.

Bowman applied for unemployment insurance benefits and also initiated an Article 78 action in Supreme Court, Niagara County, seeking reinstatement to her former position with the City. Supreme Court granted her petition, ruling that the City acted arbitrarily and capriciously in finding that Bowman did not reside in the City.

Subsequently, an Unemployment Insuance Administrative Law Judge ( ALJ) concluded that Bowman did not voluntarily leave her employment without good cause nor did she commit disqualifying misconduct for purposes of receiving unemployment insurance benefits, noting that she had provided her driver's license, a lease agreement, a rent check, her vehicle and voter registration, as well as other documentation showing her address to be within the City, and found that she slept at that address. The ALJ ruled that because "claimant met multiple indicators to establish that her Niagara Falls residence was her actual principal residence under the law, . . . claimant did not violate the law; as established during the [CPLR] [a]rticle 78 proceeding, which resulted in the annulment of the claimant's termination." The Unemployment Insurance Appeal Board affirmed, adopting the ALJ's findings of fact and opinion.

Shortly thereafter the Appellate Division, Fourth Department reversed the Supreme Court judgment holding that “the evidence that petitioner produced "was not so overwhelming . . . under the extremely deferential standard applied in reviewing administrative determinations" to support Supreme Court’s granting Bowman’s petition.

Niagara Falls then appealed the Unemployment Insurance Board’s determination to the Appellate Division, Third Department, contending that the Board's determination lacked a rational basis because it improperly relied upon the subsequently-reversed judgment of Supreme Court in Niagara County.

The Third Department sustained the Board’s decision, explaining that the Fourth Department did not hold that the City had established that Bowman actually resided and normally slept at a residence outside the City but rather the Fourth Department concluded that, under the extremely deferential standard that was applicable upon review — whether the City's initial determination was arbitrary and capricious or an abuse of discretion, it could not conclude that there was "no rational basis" for that determination (see Matter of Bowman v City of Niagara Falls, 107 AD3d at 1418).

In addition, the Third Department rejected the City's claim that the Board heavily relied upon the decision of Supreme Court in making its determination. The court said that “a fair reading of the ALJ's decision demonstrates that the Board made its own factual findings” as to whether Bowman violated the City’s residency requirement, and substantial evidence supports the determination that Bowman “did not engage in disqualifying misconduct or voluntarily separate from her employment.”

The decision is posted on the Internet at:
www.nycourts.gov/reporter/3dseries/2015/2015_00425.htm
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January 28, 2015

United States Supreme Court distinguishes a law from a regulation for the purposes the federal whistle blower statute


United States Supreme Court distinguishes a law from a regulation for the purposes the federal whistle blower statute
Department of Homeland Security v MacLean, USSC #13-984

A federal air marshal publicly disclosed that the Transportation Security Administration (TSA) had decided to cut costs by removing air marshals from certain flights.

He was subsequently dismissed from his position for disclosing sensitive security information without authorization in violation of TSA regulations, which action was sustained by the Merit Systems Protection Board. The Board found that MacLean was not entitled to whistle blower protection for the disclosures he made, finding that such statements were specifically prohibited by TSA's regulation.

The TSA regulation at issue, 67 Fed. Reg. 8351, prohibited the unauthorized disclosure of “sensitive security information” which included "[s]pecific details of aviation security measures . . . [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations."

The USCA, Federal Circuit, vacated the Board’s determination.

The Supreme Court affirmed the Federal Circuit’s ruling, explaining that Congress had used phrase "specifically prohibited by law" rather than a more general phrase such as “law, rule or regulation” in creating exceptions to the protections of the federal whistle blower statute [5 U.S.C. 2302(b)(8)(A)].

TSA's regulations, said the court, do not qualify as "law" for the purposes of 5 USC 2302(b)(8)(A) and thus such regulations do not satisfy the requirement that the provision constitute an “exception prohibited by law.”

For the purposes of “Whistle Law” protection, New York courts have distinguished between disclosures concerning of matters of public interest, which are subject to such protection and disclosures concerning matters of a personal nature or personal interest, which disclosures are not protected by the State’s Whistle Blower laws [Civil Service Law §75-b and Labor Law §740.(2)] or New York City’s Administrative Code §12-113.
 
The MacLean decision is posted on the Internet at:
http://www.supremecourt.gov/opinions/14pdf/13-894_e2qg.pdf
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January 27, 2015

Determining if there is a special relationship between a municipal employer and a municipal employee


Determining if there is a special relationship between a municipal employer and a municipal employee
2015 NY Slip Op 00526, Appellate Division, Second Department


Sometimes there is a "special relationship" between a municipal employer and a municipal employee.

Citing Pelaez v Seide, 2 NY3d 186, the Appellate Division explained that a special relationship of a municipality to an individual can be formed in three ways: 

(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; 

(2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or 

(3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation."

A New York City school teacher sued the City’s Department of Education seeking damages for personal injuries she alleged she had suffered as the result of an assault by a student while at school. The teacher contended that the Department “breached a duty of care” by failing to remove the student from classes at the school and by failing to protect her from the student.

The Department contended that there was no special relationship between it and the teacher and therefore, it did not owe her a duty of care.

Supreme Court granted the District’s motion for summary judgement and the teacher appealed.

The Appellate Division affirmed the Supreme Court’s ruling noting that the District had established, prima facie, its entitlement to judgment as a matter of law by demonstrating that it had not voluntarily assume a duty toward the teacher.

The court held that the teacher “failed to raise a triable issue of fact as to whether a special relationship was formed by the Department’s voluntary assumption of a duty that generated her “justifiable reliance.” In addition, said the Appellate Division, the teacher did not allege that a special relationship was formed because the Department of Education had violated any statutory duty or “assumed positive direction and control in the face of a known, blatant, and dangerous safety violation.”



The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2015/2015_00526.htm

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January 26, 2015

An individual may be the victim of discriminatory animus that is directed to a third person with whom the individual associates


An individual may be the victim of discriminatory animus that is directed to a third person with whom the individual associates

2015 NY Slip Op 00326, Appellate Division, Second Department

In this action, which the court characterized as a “case of first impression for this Court,” one of the issues concerned whether a plaintiff alleging discrimination in employment on the basis of religion in violation of New York State’s Executive Law §296 can establish a prima facie case by alleging that he was discriminated against because of the religion of his spouse.

The Second Department’s answer in a word, yes.

The court noted that although there is no authority addressing this issue under the State’s Human Rights Law, several federal courts have construed Title VII to protect individuals "who are the victims of discriminatory animus towards third persons with whom the individuals associate," citing Tetro v Elliott Popham Pontiac, Oldmobile, Buick, and GMC Trucks, Inc., 173 F3d 988, [6th Cir].

The individual had alleged that he was the victim of unlawful discrimination in employment and a hostile work environment in violation of §296. Supreme Court, however, granted the employer’s motion for summary judgment, thereby dismissing the individual’s cause of action for unlawful discrimination and his cause of action for hostile work environment.”

The Appellate Division explained that “To establish liability under the State Human Rights Law arising from the termination of employment, a plaintiff has the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence.” In addition, said the court, “To establish a prima facie case of discrimination under the State Human Rights Law, a plaintiff who has been terminated from employment must demonstrate (1) that he or she is a member of the class protected by the statute, (2) that he or she was actively or constructively discharged, (3) that he or she was qualified to hold the position from which he or she was terminated, and (4) that the discharge occurred under circumstances giving rise to an inference of discrimination.”\

In order to prevail in its motion for summary judgement the employer must make "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact."

The individual said the Appellate Division, had demonstrated his membership in a protected class by virtue of the employer’s alleged discriminatory conduct stemming from his wife’s religion, noting that discrimination against an individual based on his or her association with a member of a protected class also constitutes an infringement upon that individual's First Amendment right to intimate association, which receives protection as a fundamental element of personal liberty.

Nevertheless, the court held that the employer “established, prima facie, that the [individual] was not terminated from his employment under circumstances giving rise to an inference of discrimination” by demonstrating that he was terminated for legitimate, nondiscriminatory reasons—specifically, the issues litigated and decided during the disciplinary hearing.

However, in opposition to the defendants' prima facie showing of entitlement to judgment as a matter of law, the individual raised a triable issue of fact as “Verbal comments can serve as evidence of discriminatory motivation when a plaintiff shows a nexus between the discriminatory remarks and the employment action at issue.” The decision notes that “Even stray remarks in the workplace by persons who are not involved in the pertinent decision-making process may suffice to present a prima facie case [of unlawful discrimination], provided those remarks evidence invidious discrimination.

In consideration of this, the Appellate Division modified Supreme Court’s order, on the law, by deleting the Supreme Court's provision granting that branch of the employer’s motion “which was for summary judgment dismissing the cause of action alleging discrimination on the basis of religion in violation of the State Human Rights Law, and substituting therefor a provision denying that branch of the [employer’s] motion;" and as so modified, affirmed the order.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2015/2015_00326.htm
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January 24, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 24, 2015


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 24, 2015
Click on text highlighted in color  to access the full report

DiNapoli and Schneiderman Announce Guilty Plea in $120K Fraud of State Pension Benefits State Comptroller Thomas P. DiNapoli and Attorney General Eric Schneiderman Wednesday announced that Graycelia Cizik, 64, a resident of Polk County, Florida, pleaded guilty to a one-count indictment charging her with grand larceny in the second degree, a class C felony, before Supreme Court Judge Roger D. McDonough in Albany County Court. Cizik will be sentenced to 2 to 6 years in state prison on March 13, 2015
On January 22, 2015 New York State Comptroller Thomas P. DiNapoli announced that his office completed audits of the:

Comptroller DiNapoli Releases Municipal AuditsOn January 22, 2015 New York State Comptroller Thomas P. DiNapoli announced that his office completed audits of the: 
Allegany Engine Company, Inc., 
Columbia County, and the 
Town of Tuxedo.

January 23, 2015

Proposed changes to the Education Law §3020-a disciplinary procedures


Proposed changes to the Education Law §3020-a disciplinary procedures
Source: Office of the Governor

On January 21, 2015 Governor Andrew M. Cuomo presented his “2015 Opportunity Agenda” in course of delivering his "State of the State Message."

The Governor said that ”The current teacher discipline and termination system, commonly known as 3020-a hearings, is broken. The hearings are costly and time-consuming for districts, and allow arbitrators to overrule administrators’ determinations of competency and of appropriate remedies. Administrators take on protracted battles that they may or may not win, at great cost to themselves and their school communities, in attempting to eliminate ineffective and incompetent educators in their buildings.Below is the Governor’s proposal to “Make it easier, fairer and faster to remove ineffective teachers from the classroom” 

Proposal #43: Make it easier, fairer and faster to remove ineffective teachers from the classroom
 

The Governor had proposed the following reforms to Education Law §3020-a hearings “to streamline the hearing process, shift the presumptions, and strengthen evidentiary standards,” including:

1. In the case of a teacher accused of physical or sexual abuse of a child, there will be an expedited hearing with a decision rendered within 60 days.

2. Easing the legal burden on school districts seeking to remove a teacher that has been rated ineffective two years in a row.

3. Elimination of the current legal requirement that administrators must attempt to “rehabilitate” teachers who are incompetent or engage in misconduct.

4. Removal of the requirement that children must testify in person and will allow them to testify via sworn written or video statements.

5. Clarification of the existing law with respect to the dismissal of a non-tenured teacher.

The Governor’s full “2015 Opportunity Agenda” policy book is available here, and the corresponding presentation is available here.


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