New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

Matter of Jeffrey Baker v Poughkeepsie City School District

Petitioner, a Business Manager for the Poughkeepsie City School District, brought about this Article 78 proceeding to review a determination of the School District adopting the recommendation of a hearing officer which found petitioner guilty of eight charges of misconduct and incompetence and terminated his employment.

In July 2007, petitioner was charged with eight counts of misconduct and incompetence and subjected to a disciplinary hearing where two members of the Board testified. The hearing officer found the petitioner guilty of all the charges brought against him and recommended termination. The members of the Board then issued a final determination terminating the petitioner’s employment which resulted in petitioner bringing about this article 78 proceeding.

The two Board members that testified at the disciplinary hearing were personally involved in the matter and should have disqualified themselves from reviewing the recommendation and being involved in the decision of this matter. Also, the petitioner is entitled to pack pay and benefits regardless of whether he is terminated or not.

Accordingly, the Court granted the petition, annulled the determination, with costs, and remitted the matter to the Board of Education for a review of the findings of the hearing officer and a determination of the back pay amount and benefits owed to the petitioner.

Read more about this Article 78 termination case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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In this Article 78 case, petitioner, David Vetter, was a probationary teacher for the Ravena-Coeymans-Selkirk Central School District for the 2005-2006 school year. In 2006, the Board of Education voted to terminate petitioner due to allegations of misconduct but did not provide written notice of this decision until a month later – two days before the effective termination date. Petitioner then commenced this Article 78 proceeding to seek 28 days of salary in accordance with Education Law § 3109-a, a name clearing hearing, and attorney fees.

The Board agreed to the name clearing hearing for petitioner but argued that he was not entitled to the 28 days of pay because the applicable notice period occurred during summer vacation when petitioner would not have received compensation. The Supreme Court denied petitioner’s Education Law § 3109-a claim but granted his application for counsel fees. The Appellate Division then reversed the award for attorney fees and affirmed the denial of pay.

Education Law § 3109-a requires school authorities to provide teachers with a written notice of termination at least 30 days prior to the effective termination date in order for them to have the opportunity to seek other employment. When the notice is late, teachers are entitled to one day’s pay for each day the notice was late. In this case, the Board agreed that they were late with the notice but since the time period was over summer vacation when petitioner would have received no salary, felt that he was not due any pay. Since other similar cases were granted pay, even over summer vacation, the Court concluded that a remittal was necessary for the calculation of 28 days’ salary. The Court agreed with the Appellate Division’s determination that petitioner was not entitled to attorney’s fees.

Accordingly, the Supreme Court modified the petition remitting to Albany Supreme Court for further proceedings.

Read more about this Article 78 termination case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Matter of Bruce Harris v Department of Education of the City of New York

In this Article 78 appeal case, petitioner sought to challenge respondents’ determination terminating petitioner’s employment as a New York City school teacher and to gain reinstatement of his employment with back pay and benefits. After a hearing, petitioner, a tenured teacher, was ordered by respondent, Department of Education’s Hearing Officer, to serve a six-month suspension and complete sexual harassment training before he would be reinstated to his position. No evidence exists to suggest that petitioner’s rights were violated. Ten months post-hearing petitioner still had not completed the ordered sexual harassment training which resulted in his termination. Petitioner argued that he was due a second hearing prior to termination but raised no factual issue over the completion of the directed training.

Accordingly, the Supreme Court affirmed the judgment granting respondents’ cross motion to dismiss the petition and dismissing the proceeding.

Read more about this Article 78 termination appeal.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Matter of Janet Wilson v Board of Education of Harborfields Central School District

In this Article 78 proceeding, Petitioner Janet Wilson sought to review a determination of the Board of Education of the Harborfields Central School District declining to extend her employment contract. Supreme Court granted her appeal which resulted in the Board pursuing an appeal.

Petitioner alleged that the meeting in which the Board passed their resolution declining to extend Petitioner’s employment contract had inadequate notice pursuant to the Open Meetings Law. The Court felt that even if there was a technical violation, Petitioner failed to establish good cause to annul the Board’s determination.

Accordingly, the Supreme Court reversed the judgment, denied the petition and dismissed the proceeding.

Read more about this Article 78 Board of Education appeal here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Matter of James Cotter v Board of Education of Garden City Union Free School District Board of Education

Back in 2008, I wrote about a Nassau County Supreme Court Decision (J. Feinman) which held that the Garden City School District did not have to defend or indemnify a teacher involved in a fight with another teacher while they were grading Regent’s exams. (You can read that post here.)

The Second Department reversed the prior determination and ordered the school district to defend the teacher who was the target of a civil suit.

This Article 78 case was brought about to review the determination of respondent denying petitioner’s request to defend and indemnify himself in an action pending in Supreme Court. The Supreme Court originally denied the petition and dismissed the motion which resulted in this Article 78 appeal.

Petitioner was involved in a physical altercation with a fellow teacher while grading Regents examinations in the school library. Petitioner was in charge of a group of teachers and directed his co-worker, Philip McCarthy, to sit down and continue grading papers. McCarthy then threw water at petitioner and petitioner proceeded to place him in a head-lock. After this incident, McCarthy filed a civil action against petitioner to recover damages for the assault and respondent refused to defend and indemnify the petitioner.

The Court feels that it was unreasonable for the respondent to deny petitioner’s request due to the circumstances of the altercation. The incident occurred on school grounds while the petitioner and McCarthy were on duty grading exams and therefore could not be considered “wholly personal”.

Accordingly, the Supreme Court reversed the judgment, granted the petition, annulled the determination and directed respondent to defend and indemnity petitioner in the subject action.

Read full article here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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