Legal & Legislative Update

Legal & Legislative Update Presented to: NEW YORK STATE ASSOCIATION OF MANAGEMENT ADVOCATES FOR SCHOOL LABOR AFFAIRS, INC. 37th ANNUAL SUMMER CONFERENCE July 22, 2014 By: Kathy A. Ahearn, Esq. Erin M. O’Grady-Parent, Esq. Guercio & Guercio, LLP www.guerciolaw.com Guercio & Guercio, LLP

Legal Developments • Significant developments • the courts • arbitrators • PERB • Commissioner of Education • State guidance • Amendments to • statute • regulations Guercio & Guercio, LLP

Discipline of Tenured Teachers • Is a tenured teacher’s right to “confront witnesses against her” violated by her exclusion from her §3020-a hearing while a complaining witness testified? • The court in Stergiou v. NYC Dept of Education, 106 A.D. 3d 511 (2d Dept 2013) found that it was. • Complaining witness was a student; claimed teacher hit him. He was the only witness. • HO excluded teacher from hearing when student testified. • Teacher appealed; claimed her constitutional and statutory right to confront was violated. Guercio & Guercio, LLP

Discipline of Tenured Teachers • Court: §3020-a does not confer an absolute right to confront witnesses under all circumstances. • The record did not support a “compelling competing interest of the student” which might have warranted excluding the teacher. • No finding that the teacher’s presence would cause trauma to the student. • No finding that teacher’s presence would substantially interfere with his ability to testify. • And, the teacher waived any right by failing to object to her exclusion at the hearing. • Court remanded to HO to take testimony in teacher’s presence. Guercio & Guercio, LLP

Discipline of Tenured Teachers • Rubino v. City of New York, 106 A.D. 3d 439 (1st Dept 2013) demonstrates how difficult it can be to terminate a tenured teacher with a clean disciplinary record. • Teacher was terminated by an HO after it was proven at a hearing that she posted remarks on her FACEBOOK page. She appealed. • These remarks were posted shortly after a student in another school had drowned on a field trip: “ thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS. They are the devils [sic] spawn.” Guercio & Guercio, LLP

Discipline of Tenured Teachers • On appeal, the court found the penalty of termination to be “shocking to one’s sense of fairness” and remanded to the HO for a lesser penalty. • Court: The remarks were “clearly inappropriate”, but: • They were made only to the teacher’s online friends. • They were made only to vent frustration after a difficult day. • She had a clean employment record after 15 years. • She expressed remorse. Guercio & Guercio, LLP

Discipline of Tenured Teachers • In Matter of Brito v. Walcott, 115 A.D. 3d 544 (1st Dept. 2014) and Matter of Mauro v. Walcott,115 A.D. 3d 547 (1st Dept. 2014), the appeals court remanded two related teacher disciplinary cases for imposition of a lesser penalty. • Two teachers were discovered in one of their classrooms engaged in a naked tryst while a student performance was taking place in the school auditorium; neither teacher was on duty; in the building instead to see the performance. Guercio & Guercio, LLP

Discipline of Tenured Teachers • Charges brought; two different arbitrators imposed the penalty of termination (the conduct was serious, showed poor judgment when students were in school, and the incident impacted the school’s reputation and function). • Both teachers appealed to Supreme Court. One was unsuccessful; the other convinced a different judge to remand for a new hearing. Guercio & Guercio, LLP

Discipline of Tenured Teachers • One teacher appealed in one case, and the district appealed in the other. • In remanding on the issue of penalty, the Appellate Division noted: • Teachers were not in school in their official capacity. • Incident involved a consenting adult colleague and there were no student witnesses. • Both teachers had unblemished disciplinary records, and satisfactory performance records. • Although the incident was a lapse in judgment, no evidence that it was more than a one-time mistake. • No evidence that the conduct would affect their ability to teach or an intent to harm a student. Guercio & Guercio, LLP

Discipline of Tenured Teachers • The statute of limitations in a §3020-a is normally 3 years from the occurrence of the misconduct. • There are exceptions, one of which is if the misconduct on which the charges are based constituted a crime at the time it occurred. • Teacher in BOE of Hauppauge v. Hogan, 109 A.D.3d 817 (2d Dept. 2013),was charged in 2010 for falsifying a job application in 2006 (failed to disclose he previously held a probationary teaching position with another district). Guercio & Guercio, LLP

Discipline of Tenured Teachers • Teacher moved to dismiss the charges, claiming they were untimely. • The Appellate Court disagreed, and found for the District. • The District alleged that the teacher’s submission of a false application constituted the crime of offering a false instrument. • Court: the charges sufficiently plead facts that, if proven, would constitute the crime supporting the charge; charge is not time-barred. Guercio & Guercio, LLP

Teacher DisciplineAlternative Procedures • Can a school district restrict the right of a tenured teacher facing disciplinary charges to proceed to a hearing under §3020-a rather than follow the alternative disciplinary process set out in the CBA? • The Appellate Division, 4th Dept., said NO, in Matter of Kilduff v. Rochester City School District, 107 A.D.3d 1536 (4th Dept. 2013). Guercio & Guercio, LLP

Teacher DisciplineAlternative Procedures • The parties negotiated alternative disciplinary procedures that were then memorialized in the CBA. • The teacher asked to proceed under the traditional process set out in statute, and the district denied her request; she sued. • The lower court found in favor of the district. • The Appellate Division reversed: The plain language of §3020-a allows a tenured teacher to elect between a bargained alternative or the procedures specified in §3020-a. • Leave to appeal granted in 22 N.Y. 3d 854 (2013). Guercio & Guercio, LLP

FMLA and Retaliation • In Davies v. NYC Department of Education, 2014 U.S. App. LEXIS 7759 (April 25, 2014), the 2d Circuit Court of Appeals, sided with the district and granted its motion for summary judgment, dismissing a teacher’s claim of retaliation under the FMLA. • The FMLA gives eligible employees the right to 12 workweeks per year of unpaid leave because of a serious health condition that makes the employee unable to perform the functions of her position. Guercio & Guercio, LLP

FMLA and Retaliation • After FMLA leave, the employee is entitled to return to work to her prior position or an equivalent position. • The teacher began at the school in September 2007, took FMLA leave from 12/1/07-1/22/08. • After she returned, she claimed administration retaliated against her by removing her from previously assigned classroom, ignoring her complaints about disruptive students, and subjecting her to intense scrutiny and evaluation. Guercio & Guercio, LLP

FMLA and Retaliation • Court: Retaliation = a “materially adverse action” by the employer. • A “materially adverse action”= any action by employer that is likely to dissuade a reasonable worker in plaintiff’s case from exercising her legal rights. • Court: the reassignment and failure to respond to complaints do not amount to material adverse actions. Guercio & Guercio, LLP

FMLA Retaliation • Court assumes that poor evaluations DO equate to materially adverse actions. • However, the district introduced evidence of poor performance, including numerous unsatisfactory ratings, and complaints from students and parents re: her performance from 3/08-4/09. • This documentary evidence, kept in the record by the district, was critical to the district’s ability to articulate a legitimate, non-discriminatory defense. Guercio & Guercio, LLP

Employee Speech • Do teachers’ rights to engage in constitutionally protected speech have to yield to safety concerns? • The Court of Appeals said YES in Santer v. East Meadow Union Free School Dist., ___ N.Y.3d ____, May 6, 2014. Guercio & Guercio, LLP

Employee Speech • In Santer, teachers engaged in a picketing demonstration as part of an ongoing 3-year labor dispute. One rainy day, teachers parked their cars in front of the school with signs in the car windows. The parked cars created heavy traffic and forced students to cross through traffic to get to school. • District commenced 3020-a proceedings against teachers for creating a health and safety risk. • Arbitrator found teachers guilty of misconduct and imposed monetary fines. Teachers sued to vacate the awards. Guercio & Guercio, LLP

Employee Speech • Court of Appeals concluded that the teachers’ picketing demonstration constituted “speech” under the First Amendment. • Court applied Pickering two-part inquiry. First, found the speech related to a matter of public concern. Second, applying a balancing test (weighing individual interests vs. public employer’s interests) found that the district’s interests in maintaining an orderly, safe school outweighed the teachers’ free speech rights. • Court further noted that there was no evidence that the disciplinary actions were motivated by the content of the speech but rather because the parking demonstration was disruptive and created potentially unsafe conditions for students. Guercio & Guercio, LLP

Termination and APPR • In Matter of Evans v. Hempstead U.F.S.D., Sup. Ct., Nassau Co., March 12, 2014 (Janowitz, J.S.C), the court invalidated the termination of probationary principals where their terminations occurred before their APPRs were completed. • Court noted that APPRs are required to be a “significant factor” in employment decisions and the district’s failure to make any attempt to conduct the requisite APPRs for the principals prior to their termination violated Education Law 3012-c and rendered their terminations null and void. Guercio & Guercio, LLP

Scope of Employment • Does a school district commit an improper practice when it unilaterally assigns additional duties to an employee covered by a collective bargaining agreement? • It depends. • General rule: Employer can unilaterally assign additional duties without bargaining those duties, if: • The duties are part of the “essential character” of the employee’s function and their addition does not alter the “essential character” of the position; and • The newly assigned duties don’t lengthen the workday or significantly increase the workload. Guercio & Guercio, LLP

Scope of Employment • In Glen Cove Teachers Ass’n v. Glen Cove City School District, 46 PERB 4609 (2013), a PERB ALJ found that a school district did not commit an unfair labor practice when it unilaterally required school social workers, psychologists and speech pathologists to assume new duties involving paperwork and Medicaid reimbursement, to deliver services in a way that improved documentation, and to receive training in new reporting requirements. Guercio & Guercio, LLP

Scope of Employment • Union claimed these were mandatory subjects of bargaining, impacting “terms and conditions of employment.” • ALJ: Training during normal work hours is a managerial prerogative; completion of Medicaid reimbursement forms was a task incidental to members’ essential role of providing services to disabled students; taking contemporaneous notes was an inherent part of their professions; using new Medicaid classifying numbers was not new to scope, as staff already were required to use some type of classification system. • District can also newly require staff delivering these services to be licensed, because license was a federal prerequisite to obtaining a National Provider Identification Number, which was an essential aspect of the position’s basic function. Guercio & Guercio, LLP

Violation of Public Policy • In Matter of Board of Education of Valhalla Union Free School District v. Valhalla Teachers Association, 112 A.D.3d 620 (2d Dept. 2013), the Appellate Division, 2d Dept. found that a provision in a CBA, bargained and agreed to by the parties, was void as against public policy. • Spanish teacher retired, and a replacement was hired. Then an ESL teacher was excessed. Union filed a grievance, arguing the ESL teacher (who was certified in Spanish) was entitled to the Spanish position. Guercio & Guercio, LLP

Violation of Public Policy • The Union rested its argument on a CBA provision that requires the board to appoint a certified teacher whose position is excessed to a vacant position in the teacher’s area of certification. • Court: Rejects that argument because while certification is a central qualification, the board has discretion under Education Law to prescribe additional qualifications. • By mandating the appointment, the CBA divests the board of its authority to inquire into other qualifications it may want to prescribe. • CBA provision void as a violation of public policy. Guercio & Guercio, LLP

Retiree Health Benefits • In Kolbe v. Tibbetts, 22 N.Y. 3d 344 (2013), the Court of Appeals considered whether a school district could unilaterally alter the health insurance benefits of certain retirees of the district. • The parties’ collective bargaining agreement (“CBA”) concerning health insurance in retirement, that was in effect at the time the employees retired, stated “The coverage provided shall be the coverage which is in effect for the unit at such time as the employee retires.” Guercio & Guercio, LLP

Retiree Health Benefits • After the employees retired, the District executed a successor CBA that implemented changes to the retirees’ co-pays. The retirees sued alleging breach of contract. • District argued that changes were permitted under the Insurance Moratorium Law (Ch.30 L. 2009) because corresponding changes were made to the benefits of active employees. Guercio & Guercio, LLP

Retiree Health Benefits • Court disagreed. • Held that the Insurance Moratorium Law “only prescribed a bottom floor, beneath which school districts and certain boards were forbidden to go in diminishing benefits. It was not meant to eviscerate contractual obligations and decades of contract law.” • Therefore, neither the parties nor the employer alone could alter the retirees’ vested rights. • Remanded back to trial court to determine the level of benefits at retirement. Guercio & Guercio, LLP

Duty of Indemnification • Does a district have a duty to defend lawsuits against employees who may have violated State law or school policy in disciplining a student? • The Court of Appeals in Matter of Sagal-Cotler v. BOE of the City of New York, 20 N.Y. 3d 671 (2013) said YES. Guercio & Guercio, LLP

Duty of Indemnification • Education Law requires districts to provide an attorney and pay attorney’s fees and expenses related to the defense of an employee in a civil or criminal action involving disciplinary action taken against a student “while in the discharge of [their] duties within the scope of [their] employment.” • Issue: Were these employees acting “within the scope” when they slapped or hit a student? • NYC argued they were NOT; that they were in violation of the State law against corporal punishment, so how could violation of law be “within the scope of employment?” Guercio & Guercio, LLP

Duty of Indemnification • Court: The right to defense does not apply only to employees who are carrying out their duties lawfully and properly. • If that were so, how could this square with the statute’s requirement that they also be provided a defense in a criminal case? Guercio & Guercio, LLP

School District Liability • Was the school district liable for the injuries sustained by a student as a result of another student’s intentional acts, where the victim’s father had warned the school that he believed his daughter would be attacked? • In Conklin v. Saugerties Central School District, 106 A.D. 3d 1424 (3d Dept. 2013), the court said NO. Guercio & Guercio, LLP

School District Liability • Victim’s father saw a posting on MySpace indicating his daughter was going to be beaten up by another student the next day. He called the district. • Early the next morning, the district called in both students, held a mediation; both students denied any intention to fight. • The alleged perpetrator was also spoken with individually, and warned of possible criminal penalties if she began a fight. She again denied intent. Guercio & Guercio, LLP

School District Liability • Later in the day, attack occurred. Student was pushed to the ground and repeatedly punched in the head. • Father sued. District moves for summary judgment. • Motion granted. Court finds that a district will only be liable for injuries intentionally inflicted on another where it is established that the dangerous conduct “could have reasonably been anticipated” – where school officials had actual or constructive notice of prior similar conduct. • District took all reasonable steps to investigate, and reasonably believed, based on the denials of the students and the actions taken, that an attack would not occur. • Under the circumstances, the district could not have reasonably anticipated that the fight would take place. Guercio & Guercio, LLP

Unilateral Parental Placement • In C.L. v. Scarsdale UFSD, 744 F. 3d 826 (2d Cir. 2014), the Second Circuit Court of Appeals held that the IDEA’s LRE requirements do not apply to unilateral private placements. • Parents placed their child, arguing that the District placement did not provide a FAPE. • The law has been that parents can get reimbursement if there is a finding that the district failed to provide a FAPE and the parentally selected placement is appropriate. Guercio & Guercio, LLP

Unilateral Parental Placement • Under the Scarsdale case, districts will no longer be able to argue against reimbursement on the grounds that the placement is “more restrictive” than a public school setting. • Court found that while restrictiveness is a factor to be considered in assessing the “appropriateness” of a parent’s choice of placement, it is not appropriate to compare the restrictiveness of the chosen placement with the public school setting. • Private schools specializing in educating students with disabilities are necessarily more restrictive settings. • If private placements are required to be as least restrictive as public school settings, it would undermine the rights of parents to unilaterally withdraw a child from public school. Guercio & Guercio, LLP

Extended School Year Services • In T.M. v. Cornwall Cent. School Dist., ___ F.3d ___, 2014 WL 1303156 (2d Cir. 2014), the Second Circuit Court of Appeals held that the IDEA’s LRE requirement “applies in the same way to [extended school year] ESY placements as it does to school-year placements.” • Parents alleged the district failed to provide a FAPE to their child when the district proposed an ESY placement in summer program operated at the district that was open to only to students with disabilities. Parents claimed that the district violated LRE requirement because it placed child in a special education classroom rather than a general education classroom. The district argued that it did not operate a mainstream summer program so no violation of LRE. Guercio & Guercio, LLP

Extended School Year Services • Second Circuit disagreed with State Review Officer and departed from prior State and Federal guidance. • Under the T.M. case, to comply with the LRE requirement for the ESY component of a 12-month program, the CSE must consider the appropriate setting from among the continuum of alternative placements in which the student’s special education needs can be met during the summer. This may require the student’s placement in an integrated classroom, another public school district or a private school. Districts need not create a new mainstream summer program but must consider continuum. Guercio & Guercio, LLP

Extended School Year Services • Court concluded that the proposed ESY placement violated the LRE requirement, denied a FAPE to the student and remanded the matter to District Court for further action. • Court suggested that if no appropriate ESY placements are available, or if practical issues make it objectively impossible or impracticable to provide a SWD an ESY program in the LRE parents may not be entitled to reimbursement. Guercio & Guercio, LLP

Seniority Rights • General rule: A teacher who voluntarily severs his relationship with a district through retirement or resignation forfeits his seniority rights under Education Law §2510. • Not so in Alessi v. Board of Education, Wilson CSD, 105 A.D.3d 54 (4th Dept. 2013). • Spanish teacher resigned at district’s request after she failed to meet the requirements for permanent certification in Spanish. • She was then immediately rehired as a full-time substitute in the same tenure area, as promised by the superintendent. Guercio & Guercio, LLP

Seniority Rights • She was re-hired as a full-time probationary teacher when she obtained permanent certification. • Due to budget cuts, she was later excessed as the least senior teacher in her tenure area. • Because she had resigned, the district computed her seniority from when she was rehired as a probationary teacher (assuming she relinquished all previously accrued seniority upon resignation). • She sued; court found in her favor. Guercio & Guercio, LLP

Seniority Rights • Court: An employee can relinquish seniority rights by virtue of a resignation if the relinquishment is “knowing and voluntary.” • Here, the resignation was a “legal fiction” so that district could comply with Education Law, but teacher could continue with full-time duties. • Court found it significant that neither district nor teacher followed the requirements of §3019-a which governs resignation/termination; thus, there was no actual break in service. Guercio & Guercio, LLP

Seniority & Resignation • What happens where an employee resigns from a position in one tenure area to take a position in another tenure area? Are seniority and tenure rights impacted? • In Appeal of Kwasnik, Decision No. 16,419 (October 5, 2012) the Commissioner found that a teacher’s resignation from a position in one tenure area to take a position in another tenure area caused her to relinquish her tenure and seniority rights in the first tenure area. Commissioner found resignation to be knowing and voluntary even where the teacher had expressed reservations about resigning. Guercio & Guercio, LLP

Seniority & Resignation • Teacher challenged Commissioner’s decision. • In Kwasnik v. King, Sup. Ct., Albany Co., September 30, 2013, Court annulled the Commissioner’s decision. • Court found that the facts did not demonstrate any intent or affirmative act by the teacher to severe all aspects of her employment relationship with the district and thereby relinquish her seniority rights. • Notably, teacher tendered her resignation to preserve her employment with the district (in another position), there was no actual break in service with the district as a result of “resignation”, and teacher’s salary and benefits continued as if there was no break in service. • Notice of Appeal filed November 13, 2013. Guercio & Guercio, LLP

Use of School Facilities • Bronx Household of Faith v. Board of Education of the City of New York, 2014 WL 1316301, ____F.3d___(2d Cir., April 3, 2014) – fifth time it has reached the 2nd Circuit! Dispute started in 1997. • Whether a public school district must make its facilities available for the conduct of “religious worship services,” for which there is no secular counterpart? Guercio & Guercio, LLP

Use of School Facilities • NYC’s regulation: Permitted use of school facilities outside of school hours by outside organizations and/or individuals, free of rent, with permission of the district, except “no permit shall be granted for the purpose of holding religious worship services, or otherwise using a school house as a house of worship.” • Bronx Household clearly stated it wanted to conduct Christian, religious worship services on a Sunday. • NYC thus was able to rely on this representation, and was not in danger of becoming “excessively entangled” in religion by having to examine into and make a judgment about what constituted a “religious worship service.” Guercio & Guercio, LLP

Use of School Facilities • Lower Court: Enjoined NYC from enforcing the rule. • Constitution’s guarantee of the right to exercise religion was violated by the rule as the district’s schools were the only location at which the Bronx Household’s full congregation could meet without having to curtail their other religious practices. Guercio & Guercio, LLP

Use of School Facilities • On appeal, 2nd Circuit reversed. • Regulation does not violate the church’s free-exercise rights under the First Amendment. • NYC does not charge rent for the use of the premises. Thus, NYC is subsidizing any permissible activity that occurs on its premises. • There is no constitutional right that requires the government to finance the exercise of a fundamental right, including the right to exercise one’s religion. Guercio & Guercio, LLP

Use of School Facilities • There was no evidence that the regulation was motivated by hostility toward religion. • The regulation could not be reasonably perceived as hostile toward religion, given the range of other religious activity permitted by the regulation (e.g., meetings of religious groups; reading and discussing the Bible, singing hymns, and saying prayers). • The regulation was a reasonable attempt to avoid the risk of liability under the Establishment Clause (i.e., appearing to “endorse” religion or a particular religion). Guercio & Guercio, LLP

Legal & Legislative Update