Suspension of a tenured teacher requires the timely filing of written charges and specifications with the clerk or secretary of the board of education

Suspension of a tenured teacher requires the timely filing of written charges and specifications with the clerk or secretary of the board of education

Decisions of the Commissioner of Education, Decision No. 17,054

After disposing of a number of procedural issues, the Commissioner of Education addressed Petitioner's allegations that she was unlawfully placed on administrative leave with pay without any disciplinary charges having been preferred against her pursuant to Education Law §3020-a in violation of her rights to administrative due process. Holding that this aspect of the appeal submitted by Educator was timely, the Commissioner explained that the "Suspension of a tenured teacher requires a board of education to file written charges with the clerk or secretary of the board (see Education Law §3020-a). Suspension of a tenured teacher without the filing of such charges within a reasonable time is ultra vires and constitutes a continuing wrong.

Turning to the merits of Petitioner's appeal, the Commissioner found that although Petitioner was advised that she was being placed on “paid administrative leave,” there was nothing in the record indicating the reason for her placement on such leave beyond the initial two days. In any event, the Commissioner found that Petitioner had been suspended for more than a year without any charges being preferred against her and that during that time she has been prohibited from coming onto school property. 

The only reason provided by the district for the continuation of Petitioner on such leave was her failure to submit a HIPAA-compliant release and submit to an independent medical examination as requested more than three months after she was placed on such "administrative leave."  However, said the Commissioner, there is nothing in the record to show that the district preferred charges alleging insubordination against Petitioner based on her alleged failure to comply with the district’s directive "to submit to a medical examination, as it is clearly empowered to do."

The Commissioner agreed that a board of education has the right to place an employee on administrative leave pending an investigation and, or pending disciplinary charges being filed against the employee and has the right to require a teacher to submit to a medical examination. However, on this record, the Commissioner ruled that the district’s actions constitute an unlawful suspension in the absence of its timely filing of disciplinary charges against Petitioner. Further, said the Commissioner, the board of education did not introduce any evidence that it was conducting an active investigation during the period of such administrative leave and had not established that it took action to file charges within a reasonable time in compliance with Education Law §2566(6). Further, the Commissioner noted that there was no "viable explanation" for the board's delay in bringing disciplinary charges against Petitioner.

The Commissioner concluded that as Petitioner's suspension was not acted upon in a timely manner, it must be deemed null and void and directed that all references to the suspension challenged by Petitioner be expunged from her record.

Finally, the Commissioner ordered that Petitioner be deemed to be on involuntary sick leave pursuant to Education Law §913 until she submits to a medical examination, indicating "that nothing in this decision precludes [the] board from filing [disciplinary] charges [against Petitioner] in accordance with Education Law §3020-a within the period of limitation prescribed in Education Law §3020-a(1).

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d17054 

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The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more information click on http://booklocker.com/books/5215.html

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Imposing a lesser disciplinary penalty than the one recommended by the disciplinary hearing officer

Imposing a lesser disciplinary penalty than the one recommended by the disciplinary hearing officer

2017 NY Slip Op 01628, Appellate Division, First Department

The penalty of termination of employment was imposed by a disciplinary hearing officer upon the petitioner in the Article 78 action [Petitioner], a special education home instruction teacher. The hearing officer found that Petitioner had submitted time sheets falsely stating that she had provided instruction to a disabled student and inaccurately indicated that she had reported to certain New York City Department of Education [DOE] schools and libraries over the two-month period in the aftermath of the impact of Hurricane Sandy on New York City and its surrounding area.

There was no question that the hearing officers findings were correct; Petitioner was guilty of all charges and specifications. Petitioner, however, appealed, seeking a court order not to setting aside the findings of misconduct but only an order modifying the penalty imposed on her. Further, Petitioner had acknowledged her error in judgment and pledged to change her practices and never to repeat the error.

Notwithstanding Petitioner's guilt of the charges misconduct filed against her, the Appellate Division ruled that under the circumstances the penalty of termination shocked its sense of fairness and applied the so-called Pell Doctrine [see Matter of Pell v Board of Educ., 34 NY2d 222, 233.

The Appellate Division explained that here there were extraordinary conditions to consider, as well as certain attempts at mitigation undertaken by Petitioner, including the following:

1. Petitioner and her student had been displaced from their homes as a result of Hurricane Sandy and Petitioner, although she had contacted her student's mother, did not provide any educational services to her student.

2. The Department of Education had not provided teachers such as Petitioner with any guidance or information as to the instruction of students displaced by Hurricane Sandy, other than that displaced students would not be penalized.

3. Petitioner had filled out the time sheets in question in advance of the dates to which those time sheets pertained and although she had  no provided instruction to the disabled student on the days indicated in those time sheets, she had instructed other students on each of the dates in question and she would have received the same salary regardless of how many students she had instructed or how many hours she had spent with them, and thus derived no extraordinary benefit from her actions.

4. Prior to Hurricane Sandy Petitioner had an unblemished record over a 17-year period as a special education home instruction teacher and the disabled student's mother had  testified at the disciplinary hearing that Petitioner was a good teacher who worked well with her son and had served his needs more successfully than had other teachers.

The Appellate Division characterized Petitioner's misconduct as "more a matter of lax bookkeeping than implementation of any venal scheme" and no intent to defraud or harm to the public. and any harm to DOE was mitigated. It then explained that "a [disciplinary] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals."

Additional factors to be considered, said the court, "would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed."

Noting that at the hearing Petitioner admitted guilt and acknowledges that her misconduct warrants punishment since the disabled student was deprived of the services of a teacher for two months, the Appellate Division,  . Petitioner does not seek to set aside the findings of misconduct contained in the hearing officer's opinion, but only to modify the penalty imposed on her. She has acknowledged her error in judgment and has pledged to change her practices and never to repeat the error.

Citing Bolt v New York City Dept. of Education, 145 AD3d 450, the Appellate Division said that "There is no evidence that '[Petitioner] could not remedy her behavior'" and that it believed that the penalty of termination, "is disproportionate to the level of [Petitioner's] misconduct and exceeds the standards that society requires to be applied to this offense."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_01628.htm

 _______________

A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

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Guidelines applicable when police officer being sued in a civil action seeks to have his or her employer provide for his or her defense and indemnification in the civil action

Guidelines applicable when police officer being sued in a civil action seeks to have his or her employer provide for his or her defense and indemnification in the civil action

2017 NY Slip Op 01549,  Appellate Division, Second Department

A federal civil rights action was commenced in the United States District Court for the Eastern District of New York against, among others, a Nassau County police officer [Petitioner]. The claims in the federal action against Petitioner arose from an off-duty altercation caused by a traffic dispute, during which the Petitioner allegedly fired a gun at the plaintiff in the federal action. Petitioner sought to have his employer, Nassau County, defend and indemnify him in the federal action.

The Nassau County Police Officer Indemnification Board* concluded that Petitioner was not entitled to defense or indemnification by Nassau County because the alleged acts underlying the federal action were not committed "while [Petitioner was engaged] in the proper discharge of his duties and were not within the scope of his employment."

Supreme Court dismissed Petitioner's challenge of the Board's determination and he appealed its ruling.

Citing General Municipal Law §50-l, the Appellate Division said that question of whether a police officer's acts which formed the basis of the civil action were committed in the proper discharge of his or her duties and within the scope of his or her employment is to be determined in the first instance by the Board.

The Board's determination that Petitioner was not acting in the proper discharge of his duties and within the scope of his employment may be set aside by a court only if it was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.

The Appellate Division, sustaining Supreme Court's ruling, concluded that the record supported the Board's determination that Petitioner "was not acting while in the proper discharge of his duties or within the scope of his employment, since there is a factual basis for the conclusion that the alleged misconduct arose from an altercation that was personal in nature" and was not undertaken in the exercise of his "public responsibility as a police officer."

* General Municipal Law §50-l, in pertinent part, provides for "the defense of any civil action or proceeding brought against a duly appointed police officer of the Nassau county police arising out of a negligent act or other tort of such police officer committed while in the proper discharge of his duties and within the scope of his employment. Such proper discharge and scope shall be determined by a majority vote of a panel ...."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01549.htm

A contingent permanent appointment made pursuant to §64.4 of the Civil Service Law must be specifically so identified by the appointing authority

A contingent permanent appointment made pursuant to §64.4 of the Civil Service Law must be specifically so identified by the appointing authority

2017 NY Slip Op 04740, Appellate Division, Fourth Department

The employee [Petitioner] in this CPLR Article 78 proceeding sought a court order vacating the appointing authority's decision to reinstate her to her lower grade position, contending that she had been appointed to the higher grade position as a permanent or contingent permanent employee and thus was entitled to the procedural protections of Civil Service Law §75 as a condition precedent to her being returned to her lower grade position.

The Appellate Division ruled that Supreme Court had properly dismissed her petition as the record indicated that Petitioner had been given a "temporary appointment ... [to fill] a position that was encumbered by an employee on leave of absence."

Accordingly, there was nothing to support Petitioner's claim that she had been appointed to the higher grade position on a contingent permanent basis in the record.

As the Court of Appeals indicated in Snyder v Civil Service Commission, 72 NY2d 981, an employee, even if otherwise eligible for appointment as a contingent permanent employee pursuant to §64.4 of the Civil Service Law, must be specifically designated as being appointed as a contingent permanent employee by the appointing authority, which status is granted solely at the discretion of the appointing authority.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04740.htm

Unlawful discrimination complaint sustained notwithstanding respondent's failing to appear at the administrative hearing conducted by the NYS Division of Human Rights

Unlawful discrimination complaint sustained notwithstanding respondent's failing to appear at the administrative hearing conducted by the NYS Division of Human Rights

New York State Div. of Human Rights v Milan Maintenance, Inc., 2017 NY Slip Op 05508, Appellate Division, First Department

The Appellate Division unanimously sustained the New York State Division of Human Rights' (DHR) determination holding that  Milan Maintenance, Inc., [Milan] had unlawfully discriminated against an individual that it rejected for employment and DHR's awarding the complainant $10,000 for mental anguish and humiliation.

Noting that Milan defaulted at the administrative hearing held by DHR,* thus failing to rebut a prima facie showing that it had unlawfully discriminated against the complainant, the court said that DHR's findings were supported by substantial evidence and DHR's "award of compensatory damages for mental anguish" was proper.

Mari v Safir, 291 AD2d 298, sets out the tests typically applied by New York courts in resolving litigation challenging the decision of an administrative agency arrived at as the result of having conducted an administrative hearing in absentia. 

* In Hall v Environmental Conservation, 235 AD2d 757, the Appellate Division upheld an arbitrator's award in favor of the employee after Environmental Conservation boycotted the arbitration because if believed that the employee was not entitled to arbitrate the dispute.

The Milan decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05508.htm

Hearsay may constitute "substantial evidence" supporting the tribunal's findings in an administrative hearing

Hearsay may constitute "substantial evidence" supporting the tribunal's findings in an administrative hearing
2017 NY Slip Op 05147, Appellate Division, Third Department

An employee [Employee] at a residential facility operated by the Office of People with Developmental Disabilities [OPWDD] was alleged to have physically abused a resident.

An investigator conducted interviews of several witnesses and found the report of physical abuse to be substantiated. After a hearing, Employee's request that report be amended to unsubstantiated and that the report be sealed was rejected and a final determination sustaining the report of physical abuse was made.

Employee then commenced a CPLR article 78 proceeding challenging the determination which was made following an administrative hearing as unsupported by substantial evidence. Supreme Court transferred the proceeding to the Appellate Division.

The Appellate Division found that the final determination was supported by substantial evidence. Addressing Employee's contention that the hearsay statements in the record cannot constitute substantial evidence, the Appellate Division said that "it is well established that, in an administrative hearing, hearsay is admissible and may support a finding of substantial evidence."

Citing Matter of Today's Lounge of Oneonta, Inc. v New York State Liq. Auth., 103 AD3d 1082, the court commented that hearsay evidence may, "under appropriate circumstances, form the sole basis of an agency's determination, unless the hearsay evidence is seriously controverted."

In this instance, said the court, the corroborated description of the incident by the eyewitness was only controverted by Employee's denial.  Consequently, the corroborated description by the eyewitness could be viewed as not seriously controverted and "sufficiently reliable" so as to constitute substantial evidence.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05147.htm

Disqualifying an employee for employment in the public service and revoking his or her appointment based on a finding of fraud of a substantial nature in his or her application for employment

Disqualifying an employee for employment in the public service and revoking his or her appointment based on a finding of fraud of a substantial nature in his or her application for employment  

2017 NY Slip Op 05151, Appellate Division, Third Department

In 2009 the petitioner [Petitioner] in this Article 78 action had completed an application for employment with a public employer [Employer A] that included the question, "Have you ever resigned from employment rather than face discharge?" Petitioner answered "no" and signed an affirmation that the statements in the application "[were] true under the penalties of perjury and that a material misstatement or fraud may disqualify [her] from appointment." Petitioner was subsequently appointed by Employer A.

In 2015, Employer A issued a notice of charges alleging several acts of misconduct and notifying Petitioner that it would seek her dismissal if she was found guilty after a hearing. After obtaining additional information, the notice of discipline was revised to add a charge that Petitioner had made a false statement in her application for employment.

A disciplinary hearing was conducted and the hearing officer found, among other things, that Petitioner had withheld relevant information regarding her previous employment with another public employer, Employer B. As a result of this additional information, Petitioner was sent a notice of revocation of eligible certification, appointment and termination of employment pursuant to Civil Service Law §50(4). Petitioner requested, and was provided with a due process hearing. Ultimately Petitioner's "eligible certification and appointment" was revoked and Petitioner was terminated from her position.

Petitioner then commenced a proceeding pursuant to CPLR Article 78 seeking a court order annulling Employer A's determination and reinstate to her former position. Supreme Court dismissed Petitioner's action and she appealed the court's determination.

The Appellate Division noted that evidence and hearing testimony resulting Employer A terminating Petitioner revealed that Employer B, her former employer, had issued six disciplinary charges against her in 2008, which carried a maximum penalty of dismissal. After being served with these disciplinary charges, Petitioner had filed various claims against Employer B and her union, including charges with the Public Employment Relations Board. In September 2008, the parties entered into a separation agreement, by which Petitioner agreed to resign from her employment and withdraw her claims and Employer B, among other things, agreed to withdraw the disciplinary charges* against her, to issue a letter of reference using agreed-upon language, and to pay Petitioner $100,000 in settlement of her claims. In addition, the parties agreed not to discuss "the terms of [the agreement] or any fact concerning its negotiation, execution or implementation with anyone," unless "required to do so by law or legal process."

Acknowledging that she had resigned her position with Employer B while the charges were still pending, and that the maximum penalty sought by Employer B was dismissal, Petitioner gave several reasons for her "no" answer to the application question, stating that:

1. She acted upon the advice of counsel;**

2. She believed that she could not discuss the agreement because of its confidentiality provisions, and;

3. She expected to prevail on the disciplinary charges and therefore believed that she was not facing discharge.

Pursuant to the Civil Service Law §50[4], the State Civil Service Commission, with respect employee of the State as the employer and a county civil service department with respect to employers within its jurisdiction, may investigate the background and qualifications of an eligible individual after he or she has been appointed, and may revoke a certificate of appointment and direct the termination of employment, as pertinent here, "upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification, or upon a finding of . . . fraud of a substantial nature in his [or her] application, examination or appointment."

Here, said the Appellate Division, Employer A's Personnel Officer found that Petitioner had resigned her position with Employer B rather than face discharge, that this resignation would have warranted Petitioner's disqualification from eligibility and, in the alternative, that Petitioner's failure to disclose the circumstances of her resignation constituted, as relevant here, a fraud of a substantial nature in her application. The Personnel Officer further found that Petitioner's failure to disclose her resignation had prevented Employer A from inquiring into the circumstances and discovering information material to her qualifications and background, and that her failure to disclose her resignation amounted to fraud.

The court noted that Employer A appointed Petitioner almost six years before it brought charges against her. Thus, said the Appellate Division, "Supreme Court correctly determined that [Employer A] is time-barred by the three-year statutory limitations period from enforcing Civil Service Law §50 on grounds other than fraud, and the sole issue to be resolved here 'is whether fraud of a substantial nature existed in connection with petitioner's application.'"

In the words of the Appellate Division, [Employer A] has "[w]ide discretion" to determine the fitness of candidates for civil service eligibility and employment and, in the absence of clear abuse, this Court will sustain such a determination."

Further, said the court, "Our review is limited to whether [Employer A's] determination was an abuse of discretion or arbitrary and capricious." Considering the affirmation that the statements in Petitioner's application were true in light of her acknowledgment that she resigned while charges that could have resulted in her dismissal were pending against her, the Appellate Division did not find Employer A's inference that Petitioner acted intentionally to be arbitrary and capricious. As Petitioner's resignation was an express requirement of the agreement by which Employer B agreed to withdraw the charges, "it was not arbitrary and capricious for [Employer B] to discredit Petitioner's assertion that she resigned, not for the purpose of avoiding dismissal, but instead to obtain payment for settling her claims against [Employer B].

The Appellate Division also rejected Petitioner's assertions related to the provisions of the agreement that prohibited her from disclosing its terms and related facts, explaining that the language in the agreement did not preclude her from disclosing the fact that she had resigned pursuant to an agreement. As Supreme Court had noted, said the court, Petitioner could have completed the employment application truthfully while complying with the agreement's confidentiality requirements by answering the question about previous resignations "yes" and indicating in the application's explanatory section that she had resigned from her employment with [Employer B] pursuant to an agreement, but could not disclose its details.

Such an acknowledgment would have allowed Employer A an opportunity to inquire further into circumstances surrounding her resignation, "as it did promptly when it later learned of her resignation." The Appellate Division said it found nothing arbitrary and capricious and no abuse of discretion in Employer A's determination that Petitioner committed fraud of a substantial nature.

* 4 NYCRR 5.3(b), which applies to employees of the State as the employer, in pertinent part, provides that, Resignation, provides: that “… when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation." Many local civil service commissions have adopted a similar rule.

** Petitioner, said the Appellate Division, clarified that she did not consult with counsel while completing the application, and that her understanding of the issue was based upon a conversation that she had previously had with her counsel when she entered into the separation agreement.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05151.htm

______________________

A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

______________________ 

  

The actions of an employee prior to his or her promotion may properly form the basis for terminating the individual prior to the completion of his or her probationary period

The actions of an employee prior to his or her promotion may properly form the basis for terminating the individual prior to the completion of his or her probationary period

2017 NY Slip Op 05145, Appellate Division, Third Department

An individual [Probationer]  serving with the  New York State Department of Corrections and Community Supervision was promoted to a higher grade position subject to his satisfactory completion of a 52-week probationary period. Shortly after Probationer had completed the minimum period of probation he was terminated from his probationary appointment and reinstated to his former, lower grade, position.

Probationer contending that the termination of his probationary period was made in bad faith as the appointing authority "waited to demote him to his former position until just after he completed the eighth week of his probationary period — the minimum probationary service period — to avoid having to establish under Civil Service Law §75 that the demotion was based on incompetence or misconduct," filed an Article 78 petition in Supreme Court seeking reinstatement to the higher grade position with back salary.

Supreme Court dismissed Probationer's petition and he appealed the court's ruling.

The Appellate Division affirmed the lower court's determination, explaining that "An employee's probationary appointment may be terminated without a hearing for any reason or no reason at all, so long as the termination was not "in bad faith or for an improper or impermissible reason."*

To warrant a hearing after completing his or her minimum period of probation, the employee bears the burden of raising a material issue of fact as to whether the termination was made in bad faith or for an impermissible reason; allegations of a conclusory or speculative nature are insufficient to meet this burden.

Here, said the Appellate Division, Probationer's submissions were insufficient to raise a material issue of fact as to whether his discharge from the higher grade position was made in bad faith or based on an improper or impermissible motive.

The court noted that in answering Probationer's petition, the appointing authority submitted, among other things, the affidavit of the Personnel Director "which established that the decision to terminate [Probationer's] probationary promotion was made in good faith." The affidavit of the Personnel Director cited an investigative report in which it was concluded that the most credible version of certain events that occurred prior to Probationer's promotion "pointed to [Probationer] having observed and/or participated in threatening [a] particular inmate and then denying such observation or participation."

In addition, "as found by Supreme Court," the Appellate Division said that Probationer's allegations of bad faith "were too conclusory and speculative to warrant a hearing on the matter" as there was no evidentiary support that the Director waited to demote him to his former position until just after he completed the minimum probationary period.

* "Probationary employees" typically hold permanent appointment in the position and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority seeks to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05145.htm

______________

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more information click on http://booklocker.com/books/5215.html

 ______________

As the Regulations of the Commissioner of Education's do not define full-time status for the purpose determining compensation, a collective bargaining agreement may control such a determination

As the Regulations of the Commissioner of Education's do not define full-time status for the purpose determining compensation, a collective bargaining agreement may control such a determination

Decisions of the Commissioner of Education, Decision No. 17,062

Susan Ford-Gambee Wilhelm filed a appeal with the Commissioner of Education challenging the action of the Board of Education of the Eden Central School District assigning her to teach five classes following a reduction in her position from a full-time position to a .83 full time equivalent [FTE] position. 

Wilhelm contended that she was a full-time teacher within the meaning of §100.2(i) of the Commissioner’s regulations "because she continued to teach five classes each day, which she contended is a 1.0 FTE." She claimed that Eden has improperly treated her position as a .83 FTE and compensated her on that basis, even though she contended that she was a full-time teacher.

The Commissioner said that the essence of Wilhelm's argument appeared to be that §100.2(i) defines a full-time teaching load as five classes and thus that she is entitled to compensation as a full-time teacher based on the classes she was assigned to teach by the school district.

§100.2(i), relating to teaching assignments, provides that, with respect to teaching staff in public schools, the number of daily periods of classroom instruction for a teacher should not exceed five. Further, said the Commissioner, pursuant to the regulation, "a school requiring of any teacher more than six teaching periods a day, or a daily teaching load of more than 150 pupils, should be able to justify the deviation from this policy."

The Commissioner said that a petitioner, here Wilhelm, has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief.

Wilhelm, however, did not contend that her number of daily periods of classroom instruction exceeds five; admitted that she only taught five classes for the 2016-2017 school year; and did not claim that she was assigned a daily teaching load in excess of 150 students. Rather she argued that §100.2(i) defines a full-time teaching load as five classes and thus she was entitled to compensation as a full-time teacher. 

The Commissioner disagreed, explaining that §100.2(i) "merely establishes a policy that teachers should not be assigned more than five classes or a teaching load of 150 pupils and requires that a board of education be able to justify any such assignment, for the purpose of maintaining quality instruction for students." Further, said the Commissioner, the regulation does not define full-time status for purposes of compensation, noting that in Wilhelm's case, was governed by the applicable collective bargaining agreement.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d17062

Unemployment Insurance Appeals Board may apply the doctrine of collateral estoppel to a disciplinary determination made after a hearing in determining if an individual is disqualified for unemployment insurance benefits

Unemployment Insurance Appeals Board may apply the doctrine of collateral estoppel to a disciplinary determination made after a hearing in determining if an individual is disqualified for unemployment insurance benefits
Matter of Telemaque (Commissioner of Labor), 2017 NY Slip Op 02109, Appellate Division, Third Department

Veronica Telemaque appealed the decision of the Unemployment Insurance Appeals Board that she was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Telemaque had been found guilty and dismissed from her position after a hearing on disciplinary charges filed against her pursuant to Education Law §3020-a for allegedly engaging in misconduct, conduct unbecoming and/or prejudicial, insubordination and violating the employer's rules.

The Appellate Division said that Telemaque's primary challenge concerns the disciplinary Hearing Officer's factual and credibility determinations and alleged evidentiary errors were made at the disciplinary hearing. The Board noted that it did not appear that Telemaqueappealed that disciplinary determination and "her challenges to the merits of that determination may not be raised in this unemployment insurance proceeding."

As Telemaque had "a full and fair opportunity to litigate the charges of misconduct at [her §3020-a disciplinary] hearing, the Appellate Division said that the Board had "properly gave collateral estoppel effect to the Hearing Officer's factual determinations" in that proceeding and sustained the Board's determination.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2017/2017_02109.htm