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Although Arbitrator in Statutorily-Required Arbitration Proceeding Properly Found Teacher Engaged in Misconduct, Teacher’s Actions Were Protected by First Amendment

Teachers demonstrated in front of a school while negotiations for a new collective bargaining agreement were on-going.  On a rainy day, some teachers parked their cars in front of the school, displaying signs inside the cars.  Because the teachers were parked where children are usually dropped off by their parents, children were being dropped off in the street. The board of education brought a disciplinary charge against petitioner pursuant to Education Law 3020-a alleging the creation of a health and safety risk.  The matter went to statutorily-required arbitration and the arbitrator found the petitioner had created a health and safety risk.  Petitioner challenged the ruling in this Article 78 proceeding. The Second Department explained the court’s role in reviewing a statutorily-required arbitration, found that the arbitrator’s ruling was supported by the evidence, but determined petitioner’s activity was protected by the First Amendment:

Where, as here, arbitration is statutorily required, “judicial review under CPLR article 75 is broad, requiring that the award be in accord with due process and supported by adequate evidence in the record” … . “The award must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78” … . “Due process of law requires . . . that the [arbitrator’s determination] under the power conferred by statute have a basis not only in his good faith, but in law and the record before him [or her]” … . … In this proceeding… the evidence at the hearing provided a rational basis for the arbitrator’s decision, and the award was not arbitrary and capricious … .Nonetheless, we hold …that the petition should have been granted. The petitioner’s expressive activity regarding collective bargaining issues indisputably addressed matters of public concern …, and the District failed to meet its burden of demonstrating that the petitioner’s exercise of her First Amendment rights so threatened the school’s effective operation as to justify the imposition of discipline… .  Matter of Lucia v Board of Educ of E Meadow Union Free Sch Dist, 2013 NY Slip Op 05633, 2nd Dept 8-14-13

 

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Teacher’s Unsatisfactory Performance Evaluation Annulled—No Supporting Documentation

In an Article 78 proceeding, the First Department reversed the Board of Education’s denial of a teacher’s petition to annul an unsatisfactory performance evaluation because there was no longer any documentation substantiating any instances of corporal punishment in the teacher’s file.  Disciplinary letters concerning allegations of corporal punishment had previously been removed from the teacher’s file by stipulation.  The First Department explained the relevant rules as follows:

It is undisputed that Part 2(I) of DOE’s Human Resources Handbook “Rating Pedagogical Staff Members” provides (1) that a teacher’s evaluation must be supported by documentation in his/her personnel file; (2) that documentation removed from a file through grievance procedures is inadmissible in performance reviews; and (3) that documentation not addressed directly to a teacher is inadmissible in performance reviews, unless it is attached to and part of another document appropriately placed in the teacher’s file. Moreover, materials placed in a teacher’s personnel file must include a signature and date line for the teacher, evidencing that she has read the material and understands that it will be placed in the file, as well as a signature and date line for a witness; unsigned documents are inadmissible in evaluation reviews.  Matter of Friedman v Board of Educ of the City Sch Dist of the City of New York, 2013 NY Slip Op 05598, 1st Dept 8-13-13

 

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Application for Certification as NYC School Bus Driver Should Have Been Denied Because of Past Drug Convictions

The First Department, over a dissent, reversed Supreme Court’s order that petitioner, who had been convicted of two drug offenses (felonies) in the past, be certified as a NYC Department of Education school bus driver.  The First Department explained the relevant criteria as follows:

Where the applicant seeks employment with the New York City Department of Education, the School Chancellor’s regulations apply and Regulation C-105 establishes procedures to be followed …for background investigations of pedagogical and administrative applicants. Regulation C-105 incorporates by reference article 23-A of the Correction Law. Correction Law § 752 (et seq.) prohibits unfair discrimination against a person previously convicted of a crime “unless: (1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or (2) the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals.” Correction Law § 753(a) – (h), which set forth eight factors a public agency must consider in connection with an application for a license, include the person’s duties and responsibilities, the bearing, if any, the criminal offense(s) will have on the person’s “fitness or ability” to perform his or her duties, the time that has elapsed since the occurrence of the crime(s), the seriousness of the crime, information about the applicant’s reputation, etc., and the legitimate interest of the agency in protecting the safety and welfare of specific individuals or the general public. Regulation C-105 provides further that in reviewing the record of an applicant who has a prior criminal conviction, DOE is particularly concerned with offenses, among others, that involve the possession, distribution or selling of controlled substances.

The Chancellor’s Regulation, like the Corrections Law, provides that where the applicant has a certificate of relief from disabilities, that certificate “shall” also be considered (Correction Law § 753[3]). The certificate, however, only creates a “presumption of rehabilitation” with respect to the crime the individual was convicted of, it does not create a prima facie entitlement to the license the person is applying for… .  Matter of Dempsey v NYC Dept of Educ, 2013 NY Slip Op 05289, 1st Dept 7-16-13

 

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Action Seeking to Enjoin Closure of Charter School Dismissed

Plaintiffs brought an action for injunctive relief against the Board of Regents which had denied the application of plaintiff Pinnacle Charter School to renew its charter. Supreme Court had granted a preliminary injunction and dismissed one cause of action. The Fourth Department reversed the preliminary injunction and dismissed the complaint entirely, including the causes of action alleging a violation of due process and a violation of the Administrative Procedure Act:

The first and second causes of action allege, respectively, that the determination of the Board of Regents violated Pinnacle’s due process rights under the State Constitution (NY Const, art I, § 6) and the Federal Constitution (US Const, 14th Amend, § 1). We agree with defendants that the New York Charter Schools Act (Education Law art 56) creates no constitutionally protected property interest in the renewal of a charter and thus that the first and second causes of action fail to state a cause of action… * * *

…[W]e agree with defendants that the Board of Regents was acting pursuant to its discretionary authority when it denied Pinnacle’s renewal application, and it was not required to promulgate any rules pursuant to article 2 of the State Administrative Procedure Act with respect to its exercise of such authority… .  Pinnacle Charter School, et al v Board of Regents, et al, 432, 4th Dept 7-5-13

 

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Collective Bargaining Agreement Unambiguous—Lifetime Health Benefits Mandated

In concluding the collective bargaining agreement (CBA) unambiguously provided lifetime health insurance coverage to the petitioners pursuant to the CBA in effect upon their retirement, the Third Department wrote:

A  written agreement that is clear and complete on its face must  be  enforced  according  to the  plain meaning  of its terms  …Extrinsic evidence may  be considered to discern the  parties’ intent only  if the  contract is ambiguous,  which  is a question of law for the court to resolve…. In  determining  whether  an  ambiguity  exists, “‘[t]he court  should examine  the  entire contract and  consider the relation of the parties and the circumstances under which it was executed. Particular words  should be  considered, not as if isolated from the context, but in the light of the obligation as a whole  and the intention of the parties as manifested thereby'”… . Pursuant to the CBAs in effect at the time each petitioner retired, an employee who had completed 10 years of service was entitled to health insurance coverage  “in retirement.”    In order to receive that coverage at a rate of 100% per individual and 75% per dependent, the only requirement was that the individual “retire during the term of the contract.”    Matter of Warner, 516038, 3rd Dept 7-3-13

 

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Theories Not Included in Notice of Claim Precluded

In a slip and fall case, the First Department precluded plaintiff from asserting theories of liability not in the notice of claim:

The notice of claim limited plaintiffs’ theory of liability to negligent maintenance, upkeep and repair of the subject staircase, asserting that the infant plaintiff was caused to slip and fall due to a liquid substance on the floor and inadequate lighting. The infant plaintiff testified that he was caused to fall by “slippery juice” that was “all over the stairs.” He testified that he wasn’t able to see all of the juice due to insufficient lighting. Plaintiffs’ new theory, in opposition to the motion for summary judgment, that the infant plaintiff was caused to slip and fall due to various design defects including, inter alia, treads and risers of insufficient length, an improperly placed handrail and stairs not coated with nonskid materials, is precluded… Rodriguez v Board of Educ of the City of NY, 2013 NY Slip Op 04912, 1st Dept 6-27-13

 

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Late Notice of Claim Properly Allowed in Absence of Reasonable Excuse

The Second Department affirmed Supreme Court’s grant of leave to serve a late notice of claim against a school district, in the absence of a reasonable excuse:

Here …[t]he District…acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose. The District’s employee witnessed the infant petitioner’s accident, which occurred during supervised cheerleading practice, and a designated school authority prepared a medical claim form within a week after the accident…. Furthermore, the infant petitioner was transported from the school to the hospital to be treated for a broken arm…. Since the District acquired timely knowledge of the essential facts constituting the petitioners’ claim, the petitioners met their initial burden of showing a lack of prejudice…. The District’s conclusory assertions of prejudice, based solely on the petitioners’ two-month delay in serving the notice of claim, were insufficient to rebut the petitioners’ showing….  While the petitioners’ excuses for their failure to serve a timely notice of claim were not reasonable…, the absence of a reasonable excuse is not fatal to the petition where, as here, there was actual notice and an absence of prejudice … .  Matter of Viola v Ronkonkoma Middle Sch, 2013 NY Slip Op 04819, 2nd Dept 6-26-13

 

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Teacher Wrongly Denied Hearing Allowed by Education Law

The Fourth Department annulled a determination which suspended a tenured teacher for 30 days without pay finding she was wrongly denied a hearing:

[Under the collective bargaining agreement (CBA)] petitioner was entitled to choose whether to be disciplined under the procedures set forth in the CBA or those set forth in section [Education Law] 3020-a, which allowed petitioner to elect a hearing (see § 3020-a [c]). Respondents, however, incorrectly denied petitioner’s written request for a section 3020-a hearing. We therefore reverse the judgment, grant the petition, annul the determination, and we direct respondents to reinstate petitioner with back pay and benefits retroactive to the date of her suspension, and to remove all references to the discipline imposed from petitioner’s personnel file… .  Matter of Kilduff v Rochester City School District, 518, 4th Dept, 6-14-13

 

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Late Notice of Claim Properly Allowed

In affirming the grant of a motion to serve a late notice of claim, the Fourth Department explained the relevant principles:

A notice of claim must be served within 90 days after the claim accrues, although a court may grant leave extending that time, provided that the application therefor is made before the expiration of the statute of limitations period of one year and 90 days (see General Municipal Law § 50-e [1] [a]; [5]).The decision whether to grant such leave “compels consideration of all relevant facts and circumstances,” including the “nonexhaustive list of factors” in section 50-e (5) ….The three main factors are “whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality” … “[T]he presence or absence of any one of the numerous relevant factors the court must consider is not determinative” …, and “[t]he court is vested with broad discretion to grant or deny the application”… .  Dalton v Akron Central Schools, 408, 4th Dept, 6-14-13

 

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Qualified Privilege in Defamation Action Against School District Explained

In the course of a lengthy decision dealing with many issues raised by a defamation/stigma-plus proceeding brought by a school district employee against a school district, the Third Department explained qualified privilege in this context. The plaintiff was a coach whose boyfriend [Broxmeyer] had raped a student at another school.  Plaintiff alleged that defendant Arbes, principal of the high school, “stated at a meeting with several staff members that plaintiff should avoid private one-on-one  conversations with students and should take a leave of absence ‘for the safety of the students.’ “.  The Third Department wrote:

Qualified privilege provides a  complete defense to a claim of slander, and attaches to an otherwise defamatory statement “made to persons who have some common interest in the subject matter” … .  A privileged communication is one which, but for the occasion on which it is uttered, would be defamatory and actionable'”….The  defense does  not apply, however,  “where the motivation for making such statements was spite or ill will (common-law malice) or where the ‘statements [were] made with [a] high degree of awareness of their probable falsity’ … .Arbes made the statement at issue at a meeting where she, plaintiff and three other individuals were present. Plaintiff acknowledges that Keeler, the junior varsity field hockey coach and union president, had a common interest in the subject, as did a union employee who was present.  The third individual may have had the same interest because Keeler averred that the individual was a union representative. Additionally, she was a guidance counselor, and Arbes averred that guidance counselors were being made available to students who may have had difficulty dealing with the situation surrounding  Broxmeyer’s arrest, the police investigation and plaintiff’s suspension and later termination.  As all of the persons present for the meeting had a common interest in the subject matter and the record lacks any evidence of malice, Supreme Court correctly determined that Arbes’ statement at the meeting was not actionable based on the qualified privilege.  Wilcox v Newark Valley Central School District, 515906, 3rd Dept, 6-6-13

 

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