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Tenured Teacher Can Not Be Compelled to Testify In a Proceeding Where Such Testimony Would Be Admissible in a Subsequent Department-of-Education Disciplinary Proceeding

In a full-fledged opinion by Justice Freedman, the First Department determined a tenured teacher could not be compelled to testify in the New York City School District’s “Special Commission of Investigation” (SCI) proceeding.  The testimony would be admissible in a Department of Education (DOE) disciplinary hearing.  Education Law 3020(1) and 3020-a provides that tenured employees shall not be required to testify at any disciplinary hearing:

Based on the above cited Education Law provisions, the [3rd] Department has held that requiring testimony of a tenured teacher in an SCI proceeding conflicted with Education Law § 3020-a because testimony or evidence obtained at such a hearing would be admissible in a DOE disciplinary hearing. That court said, “no local legislative body is empowered to enact laws or regulations which supersede State statutes, particularly with regard to the maintenance, support or administration of the educational system'” … . * * *

Accordingly, the judgment of the Supreme Court …which … denied the petition to compel respondent to comply with a subpoena ad testificandum and dismissed the proceeding … should be affirmed…  .  Matter of Condon v Sabater, 2013 NY Slip Op 08368, 1st Dept 12-12-13

 

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School District Attorney Was “Employee” Not “Independent Contractor”

The Third Department reversed the Comptroller’s finding that an attorney for a school district was an independent contractor, not an employee, requiring the attorney to refund retirement benefits already paid.  In explaining the criteria for an “employee” who provides professional services, the Third Department wrote:

Where professional services are involved, the absence of direct control is not dispositive of the existence of an employer-employee relationship … .  Rather, such an employment relationship may be evidenced by “control over important aspects of the services performed other than results or means” …, i.e., “over-all control is sufficient to establish the employee relationship where [professional] work is concerned” … .  In our view, the Comptroller’s determination that petitioner was not an employee of the school district is not supported by substantial evidence.

Here, both the school board president and the assistant superintendent testified that the school board routinely engaged in discussions about whether to retain petitioner’s services as an employee or an independent contractor, and the board continually chose the former because it was more cost effective for the school district.  The testimony also indicated that, although there was no written contract with petitioner, the board and the assistant superintendent directed petitioner as to what work needed to be completed and when services were to be performed, the assistant superintendent and board reviewed petitioner’s work for its sufficiency and the president monitored petitioner’s performance and conducted annual performance evaluations.  Additionally, both the testimony and documentary evidence indicated that petitioner was a salaried employee paid every two weeks by paycheck, from which income taxes, Social Security, Medicare and health insurance premiums were deducted, and petitioner received a W-2 form annually.  Further, petitioner’s appointment as an employee of the school district was recognized by the County Department of Civil Service as a “School Attorney” – an exempt position – at a salary in 1974 of $3,400 per year.  Matter of Mowry v DiNapoli, 516295, 3rd Dept 11-21-13

 

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Bond Resolution for Upgrades to School District Buildings Does Not Constitute a School-District Debt—Petitioner Did Not Have Standing to Challenge School District’s Environmental Impact Determination

In a full-fledged opinion by Justice Spain, the Third Department determined that a bond resolution for the upgrading of school district buildings did not violate the school district’s constitutional and statutory debt limit and the petitioner did not have standing to challenge the school district’s State Environmental Quality Review Act (SEQRA) finding that the upgrading did not have a negative environmental impact.  The court held the bonds need not be included in the debt until they are sold, i.e., until the bonds are actually issued:

…[F]or purposes of the debt limit, “contract indebtedness” and “existing indebtedness” include only bonds that have been actually issued – i.e., sold – at that time, and exclude the value of bonds that have merely been authorized for future issuance. * *

…[P]etitioner lacks standing to challenge the School District’s SEQRA determination and process … .  Standing, even to raise environmental challenges, is not automatic and must be alleged and, when disputed, proven …; this petitioner failed to do.  To the extent that petitioner relies on the proximity of his property to one of the buildings scheduled for repurposing … to raise an inference of injury sufficient to confer standing, under our decisional law a distance of over 1,000 feet “is not close enough to give rise to the presumption that the neighbor is or will be adversely affected by the proposed project” … .  Further, petitioner failed to alleged or identify any actual injury or direct harm that he will suffer, environmental or otherwise, if the facilities project is undertaken that is distinct from the harm experienced by the general public… . Matter of O’Brien v NYS Commissioner of Education, 515382, 3rd Dept 11-7-13

 

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Criteria for Taxpayer Lawsuit Against School District for Misuse of Public Property Not Met; Failure to Serve Notice of Claim Fatal

In reversing Supreme Court, the Second Department determined that the failure to serve a notice of claim upon the school district (in a tort action) required dismissal and the criteria for a taxpayer suit against the district under General Municipal Law 51 had not been met:

Pursuant to Education Law § 3813, a plaintiff commencing a tort action against a school district must serve a notice of claim upon the school district. “Service of a notice of claim is a condition precedent to bringing an action against a school district or a board of education'”… . * * *

“A taxpayer suit under General Municipal Law § 51 lies only when the acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes'” … .. Further, to establish “common-law taxpayer standing,” a plaintiff must demonstrate that he or she is “personally aggrieved by those actions in a manner different in kind and degree from the community generally” and that “the failure to accord [him or her] standing would be in effect to erect an impenetrable barrier to any judicial scrutiny of legislative action”… . Fauvell v Miglino, 2013 NY Slip Op 07150, 2nd Dept 11-6-13

 

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School Employee Stated Discrimination Cause of Action City Department of Education

The Court of Appeals affirmed the appellate division and found plaintiff had presented sufficient evidence of employment discrimination to survive a motion to dismiss:

Defendants are of course correct that evidence only that the principal made stray discriminatory comments without any basis for inferring a connection to the termination would be insufficient to defeat defendants’ motion (see Forrest, 3 NY3d at 308 [comments made years before the plaintiff’s termination failed to raise a triable issue of fact in light of the clear evidence of plaintiff’s misconduct]).  But that is not the case here.  Plaintiff has offered evidence of, among other things: defendant principal’s repeated homophobic remarks directed at plaintiff; his decision to report to the Department of Education (DOE) allegations that plaintiff had engaged in misconduct while working at an after-school program that he did not supervise; his close relationship with the alleged victims of the misconduct; his independent decision to terminate plaintiff’s employment; and the after-school program supervisor’s opinion that plaintiff had not engaged in any misconduct worthy of reporting to the DOE. This is sufficient to deny defendants’ motion for summary dismissal.  Sandiford v City of New York Dept of Education, 157, CtApp 10-17-15

 

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New Medicaid Reimbursement Procedures Did Not Violate State Administrative Procedure Act

The Third Department affirmed Supreme Court and determined that a modified Medicaid reimbursement procedure for the school supportive health services program (SSHSP) did not violate the State Administrative Procedure Act because the new administrative directives (referred to as Q & A’s) were not new rules triggering the requirements of the Act:

The documentation and reimbursement eligibility requirements reflected in the challenged Q & As were not required to be promulgated as rules under the State Administrative Procedure Act.  For purposes of rule-making notice and filing requirements (see State Administrative Procedure Act § 202), a rule is defined as “the whole or part of each agency statement, regulation or code of general applicability that implements or applies law, or prescribes . . . the procedure or practice requirements of any agency, including the amendment, suspension or repeal thereof” (State Administrative Procedure Act § 102 [2] [a]).  Expressly excluded from the definition are “rules concerning the internal management of the agency which do not directly and significantly affect the rights of or procedures or practices available to the public” (State Administrative Procedure Act § 102 [2] [b] [i]), and “forms and instructions, interpretive statements and statements of general policy which in themselves have no legal effect but are merely explanatory” (State Administrative Procedure Act § 102 [2] [b] [iv]).  The Court of Appeals has recognized “that there is no clear bright line between a ‘rule’ or ‘regulation’ and an interpretative policy” (Cubas v Martinez, 8 NY3d 611, 621 [2007]).  Courts have previously found administrative directives to be interpretive statements when they rely on and constitute reasonable interpretations of existing regulations or statutes, or merely address the type of documentation needed to establish whether a predetermined test of eligibility has been met … .  Board of Education of the Kiryas Joel Village Union Free School District, 516336, 3rd Dept 10-17-13

 

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In College Disciplinary Action, Victim Need Not Testify—Failure to Detail Factual Findings in Determination Violates Due Process

The Third Department, in a disciplinary action by SUNY Cortland, determined the alleged victim of harassment was not the complainant in the disciplinary proceeding and therefore the alleged victim need not testify in the proceeding.  The court, however, determined the school’s failure to set forth detailed factual findings in its disciplinary determination violated the student’s due process rights. The matter was sent back for those factual findings, after which the student could pursue administrative remedies:

We reject petitioner’s contention that the Hearing Panel failed to substantially adhere to its rules and regulations published in the Code … .  Although petitioner correctly notes that the Code requires the “complainant” to present his or her own case, the “complainant” is defined as “any person or persons who have filed disciplinary charges against a student.”  Here, the complainant was SUNY Cortland’s Director of Judicial Affairs.  Thus, petitioner’s contention that the Hearing Panel did not comply with the Code because the victim did not present the case is unavailing.  Furthermore, as the victim was not called as a witness by either side and nothing in the Code establishes that the victim is a party to a disciplinary proceeding, we find that the Hearing Panel substantially complied with its rule requiring it to afford petitioner the opportunity to question all parties.  …
We do agree, however, that petitioner was denied due process because the Hearing Panel failed to set forth detailed factual findings in its disciplinary determination.  In a disciplinary proceeding at a public institution of higher education, due process entitles a student accused of misconduct to “a statement detailing the factual findings and the evidence relied upon by the decision-maker in reaching the determination of guilt” … .   Recognized as one of the “‘rudimentary elements of fair play'” in this context …, “[s]uch a statement is necessary to permit the student to effectively challenge the determination in administrative appeals and in the courts and to ensure that the decision was based on evidence in the record”… . Matter of Boyd v SUNY Cortland, 514925, 3rd Dept 10-17-13

 

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Late Notice of Claim Denied—Infancy Alone Not Sufficient Reason to Allow Late Notice

In affirming the denial of a petition for leave to file a late notice of claim, the Second Department noted that the infancy of the injured person did not compel the granting of the petition:

…[T]he factor of infancy alone does not compel the granting of a petition for leave to serve a late notice of claim … . Here, the failure to serve a timely notice of claim and the lengthy delay in seeking leave to serve a late notice of claim were not the product of the injured person’s infancy … . Furthermore, the excuse proffered for the delay in commencing this proceeding, that the petitioner, the infant’s father, was not aware of the extent of his daughter’s injury and disability until 4½ years after the accident, is unacceptable without supporting medical evidence explaining why the extent of the injury and disability took so long to become apparent… . Matter of Sparrow v Hewlett-Woodmere Union Free Scjh Dist (#14), 2013 NY Slip Op 06696, 2nd Dept 10-16-13

 

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Law School Properly Rescinded Student’s Application for Admission Based Upon Omissions Concerning Criminal Record

The Second Department affirmed a law school’s rescission of admission of a student based upon the student’s responses to a question about criminal charges on the school’s admission form:

When the petitioner endeavored to obtain an advance ruling on his eligibility for and the likelihood of his admission to the New York State bar in light of his conviction, the law school first learned of the original charges that had been asserted against the petitioner, including, inter alia, charges for distribution of LSD in the second degree, possession of LSD with the intent to distribute in the second degree, possession of Ecstasy in the third degree, and possession of Ecstasy with the intent to distribute. The law school then advised the petitioner that he must amend his application for admission and include a full accounting of what transpired with respect to his arrest in July 1999 and an explanation with respect to his failure to initially disclose this information. Although the petitioner advised the law school that the statement in his application concerning his criminal record was not factually incorrect and did not need to be amended, he nonetheless supplemented his application and made available all details and documents surrounding his expunged record. In his supplement, the petitioner acknowledged that he had been arrested for distribution and had knowingly distributed illegal substances, and freely admitted his guilt of that crime, although he maintained that he did not engage in distribution of illegal substances on a regular basis.

The law school’s determination was made on the grounds of the petitioner’s misrepresentations and omissions on his application regarding the extent of his prior criminal background, and was based upon the exercise of discretion after a full review. Despite the petitioner’s subsequent disclosure, under the circumstances presented here, and in light of the true nature of the petitioner’s prior criminal activity, the law school’s determination to rescind his acceptance was not arbitrary and capricious, and does not warrant judicial intervention… . Matter of Powers v St John’s Univ Sch of Law, 2013 NY Slip Op 06688, 2nd Dept 10-16-13

 

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Primary Assumption of Risk Prohibited Suit by Student Softball Player Injured When Struck by the Ball

The Second Department determined an eighth-grade experienced softball player assumed the risk of being hit by the ball, noting that the supervisor’s temporary absence from the field was not the proximate cause of the injury.  The court provided a thorough explanation of the primary assumption of risk doctrine:

Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity … . Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation … . Since the determination of the existence and scope of a duty of care requires “an examination of plaintiff’s reasonable expectations of the care owed him [or her] by others” …, the plaintiff’s consent does not merely furnish the defendant with a defense, it eliminates the duty of care that would otherwise exist. Accordingly, when a plaintiff assumes the risk of participating in a sporting event, “the defendant is relieved of legal duty to the plaintiff; and being under no duty, he [or she] cannot be charged with negligence” … . It is not necessary to the application of the doctrine that the injured plaintiff should have foreseen the exact manner in which the injury occurred “so long as he or she is aware of the potential for injury of the mechanism from which the injury results”… . Cruz v Longwood Cent Sch Dist, 2013 NY Slip Op 06541, 2nd Dept 10-9-13

 

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