Procedural requirements with which a resident of a school district must comply when seeking to remove a school officer from his or her position

Procedural requirements with which a resident of a school district must comply when seeking to remove a school officer from his or her position

Decisions of the Commissioner of Education, Decision #16,874

A resident [Resident] of the school district [District] asked the Commissioner of Education to remove the Superintendent of Schools [Superintendent] from the position. Resident alleged certain conduct that occurred while Superintendent was superintendent at another school district and alleged certain conduct while Superintendent of the District in support of the request for Superintendent’s removal from the position.

The Commissioner explained that a member of the board of education or a school officer may be removed from his or her office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the individual who is targeted for such removal “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.”

The Commissioner ruled that Resident’s petition must be dismissed for procedural reasons. The Commissioner explained that Resident failed to include the notice requirements set out in  8 NYCRR 277.1(b) of the Commissioner’s regulations.

This provision requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office.  Resident failed to comply with the notice requirements of  §277.1(b), but instead used the notice prescribed in §275.11(a).* The Commissioner pointed out that a notice of petition seeking the removal of an officer which fails to contain the language required by §277.1(b) of the Commissioner’s regulations is fatally defective and does not secure jurisdiction over the intended individual or individuals.

Notwithstanding the dismissal of Resident’s petition as a result of its procedural defect, the Commissioner addressed the Superintendent’s request that she issue a certificate of good faith pursuant to Education Law §3811(1)* for the purpose of authorizing the school board to indemnify the Superintendent for legal fees and expenses incurred in defending this proceeding.

The Commissioner said that it is appropriate to issue such a certification unless it was established on the record that the individual seeking such a certification acted in bad faith.

As Resident’s application was dismissed on procedural grounds and there had been no finding that Superintendent acted in bad faith, the Commissioner approved the request “solely for the purpose of Education Law §3811” as Superintendent “appears to have acted in good faith.”

* 8 NYCCR §275.11(c) requires that in the event the petitioner is seeking removal of a school officer, in addition to the notice required by 8 NYCRR §275.11(a) “the notice provisions of section 277.1 of this Title shall also apply.”

** §3811(1) sets out the procedures for seeking such indemnification but provides that an individual is not eligible for indemnification for legal fees and expenses incurred as a result of a criminal prosecution or an action or proceeding brought against him or her by a school district or board of cooperative educational services.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16874

The employment history of an employee found guilty of one or more disciplinary charges may be considered in setting the disciplinary penalty to be imposed

The employment history of an employee found guilty of one or more disciplinary charges may be considered in setting the disciplinary penalty to be imposed

OATH Index #2743/15

A sergeant who worked the overnight tour at a juvenile detention center employed by ACS was charged with multiple employment infractions spanning nine months. Two supervisors testified at trial that the sergeant failed to complete work duties, including completing reports, attending meetings, properly signing out equipment, wearing his uniform, and responding to supervisors’ requests.

OATH Administrative Law Judge John B. Spooner found the proof sufficient to sustain most of these charges. Based on the sergeant’s three prior disciplinary incidents, generally poor work evaluations, and recent egregious conduct, ALJ Spooner recommended that he be terminated from his position.

In Scott v Wetzler, 195 AD2d 905, the court rejected Scott’s argument that he was denied due process because the Section 75 hearing officer allowed evidence concerning his performance evaluations to be introduced during the disciplinary hearing. The court said that “such evidence was relevant to the determination of an appropriate penalty,” noting that Scott was allowed an opportunity to rebut these records and to submit favorable material contained in his personnel file. Another decision frequently cited as authority for this proposition is Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470.

The general rule applied by the courts when asked to determine if the employee’s personnel record was lawfully considered in setting the disciplinary penalty is that the employee’s personnel records may be considered in setting a disciplinary penalty, provided the employee is advised that this will be done and is given an opportunity to comment on the contents of his or her personnel file. Although the employee’s consent is not required in order for the hearing officer or arbitrator to consider the employee’s personnel record in determining an appropriate penalty to recommend or determine, it is essential that he or she be notified of that provide the opportunity to review and comment on his or her personnel record.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-2743.pdf

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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In a lawsuit brought by a public official alleging defamation, the official must show actual malice on the part of the alleged defamer in order to prevail

In a lawsuit brought by a public official alleging defamation, the official must show actual malice on the part of the alleged defamer in order to prevail

Eastwood v Hoefer, 2016 NY Slip Op 00674, Appellate Division, Second Department

Kenneth W. Eastwood, the former Superintendent of the Oswego City School District, sued Francis E. Hoefer, then a member of the Board of Education, to recover damages for defamation. Eastwood alleged the Hoefer had defamed him when he published three statements on an Internet website.

The first alleged defamatory statement was that "[i]t wasn't until [Eastwood] packed his bags for Middletownthat the Oswego School District discovered that our reserve accounts had been depleted." The second allegedly defamatory statement was that there had been "allegations of [Eastwood’s] abuse of a young honor student and [a] subsequent cover up." The third allegedly defamatory statement was that the Eastwood "use[d] . . . his position to acquire enhanced grades for his daughter."

Following a jury trial, the jury returned a verdict in favor of Eastwood, finding that all three of the statements were defamatory and that Hoefer had published the three statements with actual malice.

In the appeal that followed the Appellate Division, noted that Eastwood did not dispute the characterization that he was a public figure. Accordingly, said the court, this case was governed by the rule of New York Times Co. v Sullivan, 376 US 254, in which the Supreme Court of the United States interpreted the First Amendment to the United States Constitution as embodying "the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."

The Times decision, said the court, bars a plaintiff "from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not" and "[T]he appellate court must make a de novo review of the entire record and determine whether the proof before the trial court supports the finding of actual malice with convincing clarity."*

Contrary to Hoefer’s contention, the Appellate Division found that “record demonstrates, by clear and convincing evidence, that the third statement he made was made with actual malice.” However, the court, upon its independent review of the record, concluded that the evidence does not establish, with "convincing clarity," that Hoefer published the first and second statements with actual malice.

Accordingly, the court ruled that Supreme Court properly granted Hoefer’s motions,  which were made pursuant to CPLR 4404(a),** to set aside so much of the verdict as was in favor of the Eastwood with respect to Hoefer’s first and second statements.

As to the third statement, the Appellate Division said that the Supreme Court properly denied that branch of Eastwood’s CPLR 4404(a) motion to set aside so much of the verdict as was in favor of Eastwood with respect to the third statement.

* See Sweeney v Prisoners' Legal Servs. of N.Y., 84 NY2d 786

** As relevant here, a motion by a party after a trial by jury to set aside all or part of the jury's verdict. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00674.htm

A hearing officer is entitled to weigh the parties' conflicting evidence and to assess the credibility of witnesses where room for choice exists

A hearing officer is entitled to weigh the parties' conflicting evidence and to assess the credibility of witnesses where room for choice exists

Tamsen v Village of Kenmore, 2016 NY Slip Op 00785, Appellate Division, Fourth Department

The Appellate Division rejected Jeffrey Tamsen’s challenge to his being terminated from his position as a firefighter after the Hearing Officer found him guilty of the disciplinary charges filed against him.

Concluding that the Hearing Officer’s determination was supported by substantial evidence, i.e, “… relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact," the court rejected Tamsen’s claim that the Hearing Officer erred in determining that he misrepresented certain facts in the course of the disciplinary hearing.

Conceding that Tamsen presented “evidence to the contrary,” the court explained that a hearing officer is entitled to weigh the parties' conflicting evidence and to assess the credibility of witnesses and courts may not weigh the evidence or reject a hearing officer’s decision in that regard “where the evidence is conflicting and room for a choice exists.”

Citing Kelly v Safir, 96 NY2d 32, rearg denied 96 NY2d 854, the Appellate Division concluded that the penalty imposed, termination, was not "so disproportionate to the offense[s] as to be shocking to one's sense of fairness" and thus did not constitute an abuse of discretion and dismissed Tamsen’s appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00785.htm

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

 

The term “race” for purposes of 42 U.S.C. 1981 is to be defined the same as the term “race” is defined for the purposes of Title VII

The term “race” for purposes of 42 U.S.C. 1981 is to be defined the same as the term “race” is defined for the purposes of Title VII

Village of Freeport v Barrella. USCA 2^nd Circuit, Docket 14-2270

A disappointed candidate for appointment to the position Chief of Police sued the Village of Freeport for alleged unlawful discrimination.

The individual, a “white Italian-American.” alleged that a “less-qualified Hispanic candidate” was appointed to the position in violation of 42 USC 1983 because he scored highest on the examination and of the three names on the list certified for the appointment, the Hispanic candidate was ranked "third."* The Village argued that an employer who promotes a “white Hispanic” candidate over a “white non-Hispanic” candidate cannot have engaged in unlawful discrimination based on race.

The Second Circuit reject the Village’s argument, explaining that the term “race” includes ethnicity for the purposes of 42 USC 1983 and race should be defined in the same manner as “race” is defined for the purposes of Title VII. In so doing the court said “The Parties and the District Court experienced some confusion in unraveling the legal definitions of “race” and “Hispanic,” thanks partly to  the federal government’s less-than-straightforward use of those terms,” citing McCleskey v Kemp, 481 US 279.

The court also noted that even to the extent that one eligible was more qualified than another eligible for appointment, federal anti-discrimination law “does not require that the candidate whom a court considers most qualified for a particular position be awarded that position; it requires only that the decision among candidates not be discriminatory.” Further, said the Circuit Court, “an employer’s stated desire for diversity in the workplace does not, without more, establish a discriminatory intent with respect to any particular employment decision.”

* It appears that the appointment was otherwise consistent with the so-called "rule of three" set out in §61 of the Civil Service Law.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/9b9a5a4b-3821-4207-85d5-52e87d144e8e/1/doc/14-2270_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/9b9a5a4b-3821-4207-85d5-52e87d144e8e/1/hilite/

Commissioner of Education has primary jurisdiction to consider allegations that a school district failed to implement adequate policies and procedures

Commissioner of Education has primary jurisdiction to consider allegations that a school district failed to implement adequate policies and procedures

SC v Monroe Woodbury Cent. Sch. Dist., 2016 NY Slip Op 00669, Appellate Division, Second Department  

In this action to recover damages for negligence, SC alleged that the Monroe-Woodbury Central School District failed to adopt and implement adequate policies and procedures to prevent bullying and harassment.

The Appellate Division sustained Supreme Court dismissal of the action, explaining the matter “should be addressed, in the first instance, to the Commissioner of Education.”  

Contrary to SC’s contention, Supreme Court correctly determined that SC failed to exhaust available administrative remedies before commencing its action. Further, said the Appellate Division, SC also failed to establish the applicability of any exception to the exhaustion of administrative remedies doctrine.

One exception to the exhaustion doctrine: futility. For example, as a general rule, an employee covered by a collective bargaining agreement that provides for a grievance procedure must exhaust the administrative remedies available prior to seeking judicial remedies. However where the individual can prove that the union breached its duty of fair representation in the handling of the employee's grievance he or she would be excused from exhausting his or her administrative remedy. 

In Civil Service Bar Assn., Local 237, Intl. Bhd. of Teamsters v City of New York, 64 NY2d 188, the court opined that a union’s breach of its duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or its decision was made in bad faith.

In Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, the court held that "a union is not required to carry every grievance to the highest level, and the mere failure on the part of a union to proceed to arbitration with a grievance is not, per se, a breach of its duty of fair representation.” As the Appellate Division explained in Matter of Hoffman [Board of Education of the City of New York], 84 AD2d 840, a Union is not required to seek arbitration after having processed the employee's grievance through the initial stages of the grievance procedure and received unfavorable results.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00669.htm