A procedural misstep in processing an appeal to the Commissioner of Education could result in a fatal jurisdictional defect

A procedural misstep in processing an appeal to the Commissioner of Education could result in a fatal jurisdictional defect

In this appeal L.B. requested the Commissioner remove certain school personnel.  The removal of respondent’s board president, Superintendent Kelly, and Principal Sykes.  However, said the Commissioner, a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such. The Commissioner explained that joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

Here the record indicated that the petition was personally served on the district clerk, the School Superintendent and a School Principal Sykes but the board president was neither named in the caption nor was he served with a copy of the petition or a notice of petition.  As L.B. request to remove the board president was dismissed “for failure to join him as a necessary party.”

Another procedural defect noted by the Commissioner: L.B.’s demands to remove school officers failed to comply with §277.1 of the Commissioner’s regulations. 

§277.1(b) requires that the notice of petition specifically advise a respondent that an application is being made for the respondent’s removal from his or her office.

L.B., however, failed to comply with the notice requirements set out in §277.1(b) but, instead, used the notice prescribed under §279.3 for a petition seeking review by a State Review Officer of the determination of an impartial hearing officer concerning the identification, evaluation, program or placement of a student with a disability pursuant to Education Law, Article 89 and Part 200 of the Commissioner’s regulations. 

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

To the extent that L.B. sought the removal of the School Principal, the Commissioner does not have jurisdiction to remove a School Principal. Education Law §306 authorizes the Commissioner to remove a trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officers.

However, Education Law §2(13) defines “school officer” by specifically identifying a number of positions and including any “other elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system.” 

School Principals, said the Commissioner, are district employees and not school officers subject to removal under §306 and thus the Commissioner of Education lacks jurisdiction to remove a School Principal.

As to L.B.’s requests that the Commissioner initiate an investigation concerning aspects of the appeal, the Commissioner explained that such an appeal does not provide for investigations.

Appeal of L.B., Decisions of the Commissioner of Education, Decision #16,998

New Jersey court rejects civil service changes for public workers

New Jersey court rejects civil service changes for public workers

Source: Governing the States and Localities

“In a defeat for Gov. Christie’s administration, [a New Jersey] appeals court ruled on Thursday that he could not scrap exam requirements for hiring or promoting career public workers in state government.”

The Bergen Record, a newspaper, reported that “The court also ruled that the Legislature has a ‘legislative veto’ — the power to strike down any regulations adopted by the executive branch if they defy ‘legislative intent.’"

The text of the Governing the States and Localities article is posted on the Internet at:

http://www.governing.com/topics/mgmt/new-jersey-court-rejects-civil-service-changes-public-workers.html?utm_term=New%20Jersey%20Court%20Rejects%20Civil%20Service%20Changes&utm_campaign=Why%20Even%20a%20Public%20Management%20Expert%20Might%20Not%20Take%20a%20Government%20Job&utm_content=email&utm_source=Act-On+Software&utm_medium=email

The Bergen Record article concerning the decison is posted on the Internet at:

http://www.northjersey.com/story/news/new-jersey/2016/12/01/court-nj-must-hire-promote-workers-based-merit/94753552/

Invoking the attorney – client privilege

Invoking the attorney - client privilege

The primary issue in this appeal is whether attorneys who have sought the advice of their law firm's in-house general counsel on their ethical obligations in representing a firm client may successfully invoke attorney-client privilege to resist the client's demand for the disclosure of communications seeking or giving such advice.

Stock v Schnader Harrison Segal and Lewis LLP, 2016 NY Slip Op 05247, Appellate Division, First Department

Claiming absolute privileges and immunities as a defense in litigation

Claiming absolute privileges and immunities as a defense in litigation

The plaintiff in this Article 78 action, Crvelin, alleged that the Board of Education of City School District of City of Niagara Falls undertook an investigation and ultimately passed a resolution concluding that she had violated the residency policy and directed that the process to terminate Crvelin’s employment be commenced. Crvelin contended that the School District had defamed her and that as a result of the School District’s action she had suffered intentional infliction of emotional distress. 

In addition, Crvelin claimed that during the litigation of the proceeding, legal counsel for the School District made written statements in a memorandum of law submitted to the court that, according to Crvelin, were defamatory.

The School District, in its defense, claimed various absolute privileges and immunities.

Addressing the merits of plaintiff’s Article 78 complaint, the Appellate Division said:

1. “It is well settled that government officials are absolutely immune for discretionary acts carried out in the course of official duties and that immunity attaches ‘however erroneous or wrong [such conduct] may be, or however malicious even the motive which produced it.’”

2. “Statements made by government officials in the context of a quasi-judicial proceeding such as that at issue here are absolutely privileged and immunize the communicants from liability in a defamation action.” and

3. As the alleged defamatory statements made by the School District’s attorney were contained in a writing submitted to a court on behalf of the School District in the context of Crvelin's Article 78 proceeding “they are absolutely privileged.”

Crvelin v Board of Educ. of City Sch. Dist. of City of Niagara Falls, 2016 NY Slip Op 07783, Appellate Division, Fourth Department

The obligation to arbitrate the matter arising through a statutory mandate set out in Education Law §3020-a requires that the arbitrator’s determination be subject to "closer judicial scrutiny."

The obligation to arbitrate the matter arising through a statutory mandate set out in Education Law §3020-a requires that the arbitrator’s determination be subject to "closer judicial scrutiny."

Razzano v Remsenburg-Speonk Union Free Sch. Dist., 2016 NY Slip Op 07329, Appellate Division, Second Department

Insubordinate and discourteous conduct

Insubordinate and discourteous conduct

OATH Administrative Law Judge Astrid B. Gloade recommended a 25-day suspension without pay as penalty after a job opportunity specialist was found guilty of refusing to interview clients on a number of occasions, was insubordinate, was discourteous to his supervisors, and was absent without leave.

NYC Office of Administrative Trials and Hearings, OATH Index No. 2340/16

______________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York Statecourt 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

______________