Removing a school official for an alleged unauthorized disclosure of confidential information

Removing a school official for an alleged unauthorized disclosure of confidential information

Decisions of the Commissioner of Education, Decision of the Commissioner No. 17,422

This appeal to the Commissioner, among other issues, concerned allegations that confidential information was disclosed and that the alleged wrongdoers should be removed from office.

With respect to the application to the Commissioner seeking the removal of a board member from the School Board "for impermissibly disclosing confidential notes," the Commissioner observed that a member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer 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.

Further, explained the Commissioner, "[t]o be considered willful, the board member’s actions must have been intentional and with a wrongful purpose" and   in an appeal or removal application to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

School board members, as public officers, take an oath of office to uphold the law and faithfully discharge their duties and, among other things, are responsible for educational standards, budget matters, management issues, and health and safety. In carrying out their duties, school board members individually "have a fiduciary obligation to act constructively to achieve the best possible governance of the school district.

The Commissioner said that General Municipal Law §805-a(1)(b) specifically provides that no municipal officer or employee, including a school board member, shall “disclose confidential information acquired by him [or her] in the course of his [or her] official duties or use such information to further his [or her] personal interests” and within the public school system, the term “confidential,” means “[i]nformation that is meant to be kept secret.”

As to defining the meaning of the word "confidential," it is the "sole province of the Commissioner of Education to define the meaning of the word 'confidential' within the public school system and ensure its uniform application in this context."* Further, said the Commissioner, "[i]t is well-settled that a board member’s disclosure of confidential information which violates General Municipal Law §805-a(1)(b) may constitute grounds for a board member’s removal from office pursuant to Education Law §306.

Jessica Lovinsky and Phee Simpson [Petitioners] in this appeal claim that a board member disclosed “unredacted” notes to a newspaper reporter and buttress their claim with an email from the reporter to counsel for Simpson in which the reporter states that she is “writing an article on the Poughkeepsie district’s graduation investigation and subsequent appeal,” and that, in the article, she planned to “cit[e] records that relate[d] to Phee Simpson. The email also purported to include three attachments that Petitioners have attached, contending that they are copies of these three attachments.

The School District's answer to Petitioners' appeal to the Commissioner denied Petitioners' contentions. 

The Commissioner ruled that Petitioners failed to meet their burden of proving that the School Board, as a body, or any individual school board member was responsible for disclosing the documents in question to the reporter or to anyone else. 

The Commissioner explained that the first element of a claimed disclosure of confidential information is disclosure, and a petitioner must prove that the alleged actor or actors did, in fact, disclosed allegedly confidential information. Here, however, said the Commissioner,  "Petitioners have wholly failed to meet this showing, providing no facts or assertions suggesting that any respondent provided the [newspaper reporter] with the allegedly confidential information."

Accordingly, the Commissioner dismissed Petitioners' application seeking the removal of the board member.

* N.B. In 2005 State Education Department Counsel and Deputy Commissioner for Legal Affairs notified school officials, including school board members, and school attorneys of the Commissioner's decision in Application of Nett and Raby (45 Ed Dept Rep 259, Decision No. 15,315)] that the Commissioner’s views with respect to the term "confidential" differed from the interpretation of the term “confidential” offered by New York State’s Committee on Open Government.

The Commissioner's decision is posted on the Internet at:

 http://www.counsel.nysed.gov/Decisions/volume57/d17422

The doctrine of collateral estoppel bars the relitigation of a legal or factual issue that was previously decided

The doctrine of collateral estoppel bars the relitigation of a legal or factual issue that was previously decided

Washington v NYC Department of Education, USCA, 2nd Circuit, 17-3776-cv

In Grieve v Tamerin, 269 F.3d 149, the Circuit Court of Appeals said that the doctrine of collateral estoppel, also termed issue preclusion, bars re-litigation of a legal or factual issue that was previously decided where:

(1) the issues in both proceedings are identical,

(2) the issue in the prior proceeding was actually litigated and actually decided,

 (3) there was [a] full and fair opportunity to litigate in the prior proceeding, and

(4) the issue previously litigated was necessary to support a valid and final judgment on the merits.”

Further, the opinion continues, “New York courts will give administrative determinations preclusive effect if made in a quasijudicial capacity and with a full and fair opportunity to litigate the issue,” citing Burkybile v. Bd. of Educ. of Hastings-On-Hudson Union Free Sch. Dist., 411 F.3d 306.

In this action Janet Washington [Plaintiff] asserted that §3020-a hearings do not result in the sort of final judgment that can give rise to collateral estoppel in federal court. The Circuit Court of Appeals disagreed, explaining that "it is well-settled that a “[S]ection 3020-a hearing is an administrative adjudication that must be given preclusive effect” when the elements of collateral estoppel are satisfied."

The Circuit Court ruled that Plaintiff's §3020-a hearing satisfies the elements of collateral estoppel and has preclusive effect as the issue of alleged unlawful discrimination was actually litigated and decided, and the arguments raised in the §3020-a hearing were identical to those briefed for the discrimination claim on appeal. Further, said the court,  Plaintiff acknowledges that the hearing officer "ruled decisively and specifically on whether [Plaintiff] suffered disability discrimination after considering the arguments from each side," concluding that Plaintiff's “evidence of actual animus is weak” and that “just cause exists for the termination of [Plaintiff’s] employment”.

In the words of the court, "[t]he Section 3020-a hearing also afforded a full and fair opportunity to litigate the issue of discrimination. Plaintiff was permitted to request the production of material, call and cross-examine witnesses, and present relevant evidence...." The court acknowledged that Plaintiff had challenged certain of the arbitrator’s evidentiary decisions, but opined that "the proceeding is not rendered unfair or incomplete because some evidentiary rulings were unfavorable. "

Holding that the district court correctly concluded that the Plaintiff’s discrimination claims were collaterally estopped by the factual findings of her §3020-a hearing, the Circuit Court affirmed the lower court's ruling.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/112119e1-395f-4de2-89fe-3ac841261b89/1/doc/17-3776_so%20(2).pdf#page=3&zoom=auto,-146,394

Executive Order of the Governor protecting the personal privacy of public sector workers

Executive Order of the Governor protecting the personal privacy of public sector workers

Executive Order No. 183  [8 EO 183]

WHEREAS, the labor movement was born in New York State more than a century ago, when, in the wake of the Triangle Shirtwaist Factory fire New York became the first state to enact laws protecting workers; and

WHEREAS, the labor movement continues to thrive in New York, which today boasts the highest rate of union membership in the country – more than double the national rate;

WHEREAS, as the voice of working people, labor built the middle class and advanced the great progressive achievements that we take for granted today – victories such as the Social Security Act, the Fair Labor Standards Act establishing the 40-hour work week, set ting a minimum wage and prohibiting child labor, the Equal Pay Act banning gender wage discrimination, and the Occupational Safety and Health Act; and

WHEREAS, across New York State and this country, workers’ personal information such as their home addresses and cell phone numbers, are being used to attack, harass, and intimidate them; and

WHEREAS, although today’s decision by the United States Supreme Court in Janus v AFSCME attempts to undermine worker safety and privacy, New York State will not subject public sector workers to the abuse of their personal information as part of a campaign to harass and intimidate workers for any reason, including engaging in union activities or looking to unionize.

NOW, THEREFORE, I, ANDREW M. CUOMO, Governor of the State of New York, by, virtue of the authority vested in me by the Constitution and laws of the State of New York, do hereby order as follows:

A. Definitions

‘‘State entity’’ shall mean (i) all agencies and department s over which the Governor has executive authority, and (ii) all public benefit corporations, public authorities, boards, and commissions, for which the Governor appoints the Chair, the Chief Executive, or the majority of Board members, except for the Port Authority of New York and New Jersey.

B. Responsibilities of State Entities

No State entity, including any of its officers or employees, shall disclose: (a) the home address(es), personal telephone number(s), personal cell phone number(s), personal e-mail address(es) of a public employee, as the term ‘‘public employee’’ is defined in Article 14 of the Civil Service Law, except (i) to an employee organization that, in accordance with Article 14 of the Civil Service Law, is the certified or recognized bargaining representative of a unit of public employees; (ii) to a bona fide employee organization that, in accordance with Article 14 of the Civil Service Law, is legitimately seeking to be certified or recognized as bargaining representative of a unit of public employees solely for purposes of aiding such employee organization in obtaining certification or recognition; or (iii) to the extent compelled to do so by lawful service of process, subpoena, court order, or as otherwise required by law. 

This order shall not apply to work-related, publicly available information such as title, salary, and dates of employment.

(L.S.)

GIVEN under my hand and the Privy Seal of

the State in the City of Albany this twenty-

seventh day of June in the year two thousand

eighteen.

BY THE GOVERNOR

/S/ Andrew M. Cuomo

/s/ Melissa DeRosa

Secretary to the Governo

Executive Order of the Governor protecting the personal privacy of public sector workers

Executive Order of the Governor protecting the personal privacy of public sector workers

Executive Order No. 183  [8 EO 183]

WHEREAS, the labor movement was born in New York State more than a century ago, when, in the wake of the Triangle Shirtwaist Factory fire New York became the first state to enact laws protecting workers; and

WHEREAS, the labor movement continues to thrive in New York, which today boasts the highest rate of union membership in the country – more than double the national rate;

WHEREAS, as the voice of working people, labor built the middle class and advanced the great progressive achievements that we take for granted today – victories such as the Social Security Act, the Fair Labor Standards Act establishing the 40-hour work week, set ting a minimum wage and prohibiting child labor, the Equal Pay Act banning gender wage discrimination, and the Occupational Safety and Health Act; and

WHEREAS, across New York State and this country, workers’ personal information such as their home addresses and cell phone numbers, are being used to attack, harass, and intimidate them; and

WHEREAS, although today’s decision by the United States Supreme Court in Janus v AFSCME attempts to undermine worker safety and privacy, New York State will not subject public sector workers to the abuse of their personal information as part of a campaign to harass and intimidate workers for any reason, including engaging in union activities or looking to unionize.

NOW, THEREFORE, I, ANDREW M. CUOMO, Governor of the State of New York, by, virtue of the authority vested in me by the Constitution and laws of the State of New York, do hereby order as follows:

A. Definitions

‘‘State entity’’ shall mean (i) all agencies and department s over which the Governor has executive authority, and (ii) all public benefit corporations, public authorities, boards, and commissions, for which the Governor appoints the Chair, the Chief Executive, or the majority of Board members, except for the Port Authority of New York and New Jersey.

B. Responsibilities of State Entities

No State entity, including any of its officers or employees, shall disclose: (a) the home address(es), personal telephone number(s), personal cell phone number(s), personal e-mail address(es) of a public employee, as the term ‘‘public employee’’ is defined in Article 14 of the Civil Service Law, except (i) to an employee organization that, in accordance with Article 14 of the Civil Service Law, is the certified or recognized bargaining representative of a unit of public employees; (ii) to a bona fide employee organization that, in accordance with Article 14 of the Civil Service Law, is legitimately seeking to be certified or recognized as bargaining representative of a unit of public employees solely for purposes of aiding such employee organization in obtaining certification or recognition; or (iii) to the extent compelled to do so by lawful service of process, subpoena, court order, or as otherwise required by law. 

This order shall not apply to work-related, publicly available information such as title, salary, and dates of employment.

(L.S.)

GIVEN under my hand and the Privy Seal of

the State in the City of Albany this twenty-

seventh day of June in the year two thousand

eighteen.

BY THE GOVERNOR

/S/ Andrew M. Cuomo

/s/ Melissa DeRosa

Secretary to the Governo