The Commissioner of Education will dismiss an application or appeal involving an officer and, or, a member of the staff of a school district for improper service of the complaint and, or, lack of subject matter jurisdiction.

The Commissioner of Education will dismiss an application or appeal involving an officer and, or, a member of the staff of a school district for improper service of the complaint and, or, lack of subject matter jurisdiction 
Decisions of the Commissioner of Education, Decision #17,002

Addressing the issue of "improper service" of the complaint, the Commissioner explained that the application must be dismissed because there was no personal service of the application on officers and employee as necessary parties where the rights of such an officer or staff member would be adversely affected by a determination of an appeal in favor of a applicant.

With respect to issues in the application or appeal involving subject matter jurisdiction of the Commissioner:

1. To the extent that an application alleges discrimination on constitutional grounds, an appeal to the Commissioner is not the proper forum to adjudicate issues of constitutional law or to challenge the constitutionality of a statute or regulation and the complaint must be presented to a court of competent jurisdiction if otherwise timely.

2. To the extent that an application raises claims that do not arise under Education Law, such as defamation, the Commissioner of Education lacks jurisdiction over such claims, which may be raised in a court of competent jurisdiction if otherwise timely.

3. To the extent that an appeal to the Commissioners pursuant to Education Law §310 alleges claims under Title VI of the Civil Rights Act of 1964 or the Americans with Disabilities Act, an appeal to the Commissioner is not the appropriate forum to adjudicate such claims.

4. To the extent that the application asks the Commissioner to provide for an investigation concerning the issues giving rise to the application, a petition submitted to the Commissioner for adjudication is appellate in nature and does not provide for investigations.

5. To the extent that applicant seeks an award of monetary damages, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal filed pursuant to Education Law §310.

6. To the extent that the applicant seeks an apology from an officer of staff member, the Commissioner lacks the authority to order a member of a board of education or a school district employee to issue an apology.

Finally, as relevant in this appeal, the decision notes that in the interest of judicial economy, the Commissioner of Education will not entertain an appeal while there is an action pending in another forum involving the same issues and seeking similar relief.

The Fifth Amendment's bar against “self-incrimination” does not protect an individual who lies in the course of an official inquiry

The Fifth Amendment's bar against “self-incrimination” does not protect an individual who lies in the course of an official inquiry 
2016 NY Slip Op 08368, Appellate Division, Second Department

In this proceeding pursuant to CPLR Article 78 to review the appointing authority’s adopting a Civil Service Law §75 hearing officer's findings and recommendation as to the discipline to be imposed, the Appellate Division sustained the appointing authority’s finding the employee [Petitioner] guilty of certain charges of misconduct and incompetence filed against him and imposing the penalty of dismissal of the Petitioner from his employment.

Among the charges filed against Petitioner was that, in response to a request for an account concerning an incident, Petitioner conceded made a false statement to his superior.

In sustaining the appointing authority’s action, the Appellate Division noted that the privilege against self-incrimination set out in the Fifth Amendment of the U.S. Constitution was not a bar to the disciplinary charge alleging that Petitioner had made the false statement because he was not required to waive his immunity with respect to the use of the statements in a criminal proceeding.

The court, citing Brogan v United States, 522 US 398, explained that "neither the text nor the spirit of the Fifth Amendment confers the privilege to lie." Similarly, in In Matter of Mathis (Commissioner of Labor), 110 AD3d 1412, the Appellate Division held that an employee’s constitutional right against self-incrimination does not give the individual the right to answer questions untruthfully. 

As to the penalty imposed on Petitioner, termination from his position, the Appellate Division said that a court "may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law." In this instance, said the court, the penalty of dismissal is not so disproportionate to the offenses as to be shocking to one's sense of fairness.”

Further, there may be unintended consequences if an employee is not truthful in responding to job related inquiries in an effort to avoid disciplinary action. The U.S. Supreme Court unanimously held that a federal government agency could impose a harsher discipline on an employee who lied while being investigated for job-related conduct than might otherwise have been imposed. Although only federal employees were involved, the ruling may influence cases involving state and local employees.

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Difficulties result following the appointment of a teacher to an “unauthorized tenure area”

Difficulties result following the appointment of a teacher to an “unauthorized tenure area”

Decision of the Commissioner of Education, Decision No. 17,011

A teacher [Teacher] appealed the decision of the Board of Education that resulted in his being “excessed” following the abolishment of his position by the Board.  The Commissioner held that his appeal must be sustained in part.

Teacher held permanent certification as a teacher of English 7-12 and a gifted education extension. He was permanently appointed to the position subject to his satisfactory completion of a probationary period and ultimately received tenure in that "area" effective September 1, 2007.

 

Teacher’s position was abolished effective June 30, 2013 whereupon he challenged his being laid-off, contending that the district had “improperly appointed him to an unauthorized tenure area, in violation of Part 30 of the Rules of the Board of Regents” and he should have been accruing seniority credit in his area of certification pursuant to 8 NYCRR 30-1.2(b) of the Rules of the Board of Regents and should be retained by the district as he is not the least senior teacher in the 7-12 English tenure area. 

Accordingly, Teacher asked the Commissioner to annul the district’s termination of his employment and direct the school board to reinstate him to a position in the English 7-12 tenure area, with back pay, benefits and seniority.

The school district, conceding that it had improperly assigned Teacher to an unrecognized tenure area, argued that Teacher “did not spend more than 40 percent of his time performing duties in his certificate area or in instructional support services and that he failed to meet his burden of proof.” In addition, the school district contended that Teacher “failed to mitigate his damages.”

The Commissioner said that in the event a board abolishes a position, “the services of the teacher having the least seniority in the system within the tenure [area] of the position abolished shall be discontinued” (Education Law §3013[2]).  Therefore, the district must first identify the tenure area for the position to be abolished.”

In this instance, however, the school district mistakenly appointed an educator to a non-existent or incorrect tenure area. Accordingly, said the Commissioner, the school district "had an obligation to correct that mistake by retroactively appointing that teacher to a position that most closely resembles the recognized tenure area with the duties the teacher is actually performing.” In so doing, the Commissioner explained that “it is the actual nature of the abolished position that must be considered.  The certification, proper or improper, and the tenure status of the holder of the position, correctly determined or otherwise, are not controlling.”

On the record before her, the Commissioner said that it was unclear whether the school district ever conducted a detailed analysis of the duties of the position to be abolished.  On the other hand, and conceding that he has never taught in the academic tenure area of English 7-12, Teacher contended that he was spending more than 40 percent of his time providing instructional support services, and under 8 NYCRR §30-1.2(b)(2) he was entitled to credit for tenure and seniority “in a tenure area for which he holds the proper certification”.  Further, Teacher argued that since he was certified in English 7-12, the school district was obligated to assign him to the English 7-12 tenure area, in which tenure area he was not the least senior teacher. 

In contrast, the school district denied the representation that the Teacher’s job duties involved providing instructional support services for a substantial portion of his time, and asserted that he was appointed and served as a teacher of core academic subjects to gifted and talented students in grades three through six.

The Commissioner observed that “it is unclear whether [the school district] ever affirmatively determined the authorized tenure area(s) to which [Teacher’s] position should be reclassified and then determined seniority within such tenure area(s) as it is required to do. Rather, the school district’s superintendent “erroneously asserts that [the school district] could not reclassify [Teacher] to an elementary or middle school tenure area because he did not hold certification to teach in those tenure areas, and therefore was not legally qualified for such position. However, the Commissioner explained that “a district may not circumvent Education Law §3020-a by excessing a tenured, certified teacher based on their lack of certification to teach in the tenure area of an abolished position.”

The Commissioner ruled that, based on the record before her, Teacher had met his burden of demonstrating that at least 40 percent of his time was spent in the elementary tenure area (teaching gifted and talented instruction to elementary school students). Further, noted the Commissioner, Teacher may also be entitled to credit for his service in the English 7-12 tenure area within the exception created by 8 NYCRR §30-1.2(b)(2) for instructional support services.

Further, the Commissioner determined that the school district failed to refute Teacher’s assertions and the many affidavits submitted on Teacher’s behalf indicating that he taught gifted and talented education to elementary/middle school students for 40 percent or more of his time and/or spent more than 40 percent of his time performing instructional support services as defined in 8 NYCRR 30-1.1 of the Rules of the Board of Regents. 

However, since it was unclear from the record what percentage of Teacher’s duties was spent performing instructional support services from the 2005-2006 school year until June 30, 2013 and what percentage of his time was spent performing duties in the elementary tenure area (teaching gifted and talented instruction to elementary school students), when Teacher’s position was abolished, the Commissioner ruled that it was  appropriate to remand this matter to school district for a determination of Teacher’s seniority rights with respect to performing instructional support services in the certification area of English 7-12 and Teacher’s seniority rights with respect to performing services in the elementary tenure area, and based on his seniority in these two areas, his right to reinstatement as a teacher in the English 7-12 tenure area and/or elementary tenure area on June 30, 2013, “in accordance with 8 NYCRR 30-1.1 of the Rules of the Board of Regents and this decision.”

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