New Hires Replace Senior Teachers In Memphis, Tennessee

Memphis schools celebrate  $90 million Grant From Bill Gates

The next step for New York City teachers.....dont forget to file your Notice of Claim against the City of New York pursuant to General Municipal Law (I'm not an attorney, this is not legal advice).

Betsy Combier
Editor, Parentadvocates.org
Editor, NYC Rubber Room Reporter
Editor, NYC Public Voice
Editor, NYCourts - New York Court Corruption

New Memphis City Schools teachers finding seniority:
Many displaced educators being put on surplus list
By Jane Roberts, The Commercial Appeal, Friday, July 29, 2011
LINK

The teachers union in the city schools has agreed to let new hires, many of them transplants to Memphis with Teach for America, displace senior teachers.

But union officials are not happy about it.

Keith Williams, president of the Memphis Education Association, says the idea that outsiders are better suited to teach in Memphis City Schools "shows a disdain for the intellect of this community."

"This district had 15,000 applicants that were not even considered," he said. "This makes it impossible for a person to teach in Memphis City Schools unless they come through Teach for America."

Starting this week, principals filling last-minute openings are seeing only two kinds of applicants: experienced teachers displaced from city school classrooms or new teachers coming through TFA or the city schools' own alternative licensure program, Memphis Teaching Fellows.

As of July 15, the district had 101 teacher vacancies and 133 candidates between TFA and its own residency program, plus 210 "surplus" or displaced teachers.

By Thursday, the district said all 100 Teach for America candidates would be placed and ready to report to work Monday.

The strategy is part of a plan to get "high potential" teachers in the classroom.

"Past practice would dictate that the most senior of these teachers would be placed in remaining vacancies," Deputy Supt. Irving Hamer wrote in a memo dated July18. "However, in this climate of cuts, the district has boldly decided to approach this challenge as an opportunity to provide a much-needed academic lift to the kids in its schools."

The district is able to circumvent seniority rights under a clause in the teacher contract that says curriculum needs allow it to hire outside the surplus pool.

It was caught flat-footed this year after it spent $2.5 million getting high-quality teachers from around the nation interested in Memphis but could hire few of them because it had displaced hundreds of its own and owed those teachers first choice.

While Hamer notes that 400 of 570 teachers from the surplus pool have since found jobs in the system, the aim is to reduce "the dance of the lemons," Supt. Kriner Cash's description of the process of moving poor teachers from school to school because they are protected by union seniority rules.

Of the 210 teachers on the surplus list in mid-July, at least 25 percent were among the district's poorest teachers, based on an analysis the district ran on their students' achievement.

Williams is glad to have union jobs reinstated but is furious that the district puts such a premium on outside talent.

"It's a complete disregard for the intellect of this community. You are completely disregarding those candidates this district has produced, that local universities have produced. None of those people are able to secure these jobs."

Under the four-year contract Teach For America signed in 2009, MCS is obligated to hire a total of 350 TFA corpsmen through 2012-13.

This year, it also must place an additional 75 TFA members whose salaries are being paid for from the state's Race to the Top fund.

The newest openings are at Mitchell High and Coleman and Brookemeade elementaries, where district officials this week moved 15 teachers to the surplus list. At Fairley High, eight will be replaced.

"The process is not over," Hamer said. "There will still be some more teachers put on the surplus list."

-- Jane Roberts: (901) 529-2512

Chris Lobo, Another Victim of Peer Intervention Plus (PIP+) Loses His Article 7511 in Supreme Court

The decision below reflects once again the power of RMC as the vendor that was hired by the NYC BOE to do observations of "incompetent" teachers" under the PIP+ program. The PIP+ program is a red flag that you must be terminated. The process is pursued through the principal of a school, and the observations of the PIP+ observer are given to the principal, whose opinion of the employee determines what is written. Arbitrators are told by the Gotcha Squad not to overrule the conclusions given as to the employee's performance and I know of only three cases where a teacher/employee was not terminated by the arbitrator at 3020-a, and no cases where the Supreme Court overturned this termination on Appeal.

Why the UFT would continue to push members into this program is my question, not only because of its obvious purpose, but also because the observers violate the UFTcontract (Article 8J) and Teaching In The 21st Century by not doing pre-observations.

NEW YORK COUNTY

Schools and Education
Hearing Officer's Decision to Terminate Teacher Found Not Shocking to Conscience
07-29-2011
Justice Lobis

High school science teacher, Lobo, sought to annul an arbitration's decision to terminate his employment. A hearing on misconduct charges was held after the Department of Education (DOE) preferred charges, including incompetence, against Lobo. Hearing Officer Henderson found Lobo's testimony consisted of general denials or excuses for his "shortcomings." Henderson found the DOE established that on the seven occasions administrators observed Lobo's class over two years, he delivered unsatisfactory lessons. He concluded that given the resources available to help Lobo, and his failure to improve and reluctance to admit deficiencies, it was unlikely Lobo would ever improve, ruling termination appropriate. Lobo claimed the termination was shocking to the conscience and should be vacated. The court disagreed, noting in light of Henderson's findings that Lobo was under-performing for two straight years, and even after being provided resources to assist him, Lobo could not argue the penalty of termination was unwarranted. The court ruled as Lobo failed to sufficiently allege cognizable causes of action, the DOE's cross-motion for dismissal was granted.

Profile of Judge Joan B. Lobis:

Part Rules


Individual Judges' Rules Non Commercial Division

Recent decisions

Matter of Colon v. Kelly, 117992/09

Decided: May 13, 2010 (Published 5/27/2010 Administrative Law)

Capparelli v. NYC Dept of Housing Preservation & Development, 117308/09

Decided: April 2, 2010 (Published 5/12/2010 Landlord/Tenant Law)

Sweeten v. Teperman, 100425/06

Decided: February 4, 2010 (Published 3/2/2010 Civil Practice)

Matter of Costigan v. Kelly, 109718/09

Decided: February 11, 2010 (Published 3/1/2010 Government)

Tribeca Community Assoc. v. NYC Dept. of Sanitation, 101498/09

Decided: January 11, 2010 (Published 1/28/2010 Civil Practice)

Matter of Press v. Kelly, 107020/09

Decided: January 8, 2010 (Published 1/26/2010 Administrative Law)

Torres v. Terence Cardinal Cooke Health Care Center, 109359/08

Decided: December 4, 2009 (Published 12/24/2009 Criminal Practice)

Matter of Kinard v. New York City Housing Authority, 401041/09

Decided: October 30, 2009 (Published 11/25/2009 Landlord/Tenant Law)

Franklin v. Beth Israel Medical Center, 108022/09

Decided: October 22, 2009 (Published 11/18/2009 Civil Practice)

Matter of Douce v. New York City Housing Authority

106638/09, Decided: October 22, 2009 (Published 11/12/2009 Landlord/Tenant Law)

Yakkey v. Ascher, 105463/05

Decided: October 26, 2009 (Published 11/9/2009 Torts)

Matter of Local No. 1 v. Thompson, 111072/08

Decided: March 2, 2009 (Published 3/23/2009 Labor Law)

Matter of Brown v. Hernandez, 401918/08

Decided: October 16, 2008 (Published 11/12/2008 Landlord/Tenant Law)

C. v. C., 350571/06

Decided: July 24, 2008 (Published 8/26/2008 Family Law)

Matter of Riches v. New York City Council, 106898/08

Decided: July 16, 2008 (Published 7/29/2008 Government)

J.H.W. v. J.H.W. (Published 2/10/2006 Civil Practice)

Appellate decisions (The Appellate Decisions below were originally ruled on by this judge in a lower court.)

Matter of Duryea v New York City Hous. Auth. (2011 NY Slip Op 05554) (Date Decided 6/28/2011)

Kettaneh v Board of Stds. & Appeals of the City of New York (2011 NY Slip Op 05410) (Date Decided 6/23/2011)

Fernandez v Moskowitz (2011 NY Slip Op 05344) (Date Decided 6/21/2011)

Matter of Block v Gatling (2011 NY Slip Op 03672) (Date Decided 5/3/2011)

Rose v Frankel (2011 NY Slip Op 03339) (Date Decided 4/28/2011)

Tribeca Community Assn. v New York City Dept. of Sanitation (2011 NY Slip Op 02959) (Date Decided 4/14/2011)

Matter of Gibbs v New York City Hous. Auth. (2011 NY Slip Op 01529) (Date Decided 3/1/2011)

Imperato v Mount Sinai Med. Ctr. (2011 NY Slip Op 01532) (Date Decided 3/1/2011)

Matter of Bautista v City of New York (2011 NY Slip Op 00784) (Date Decided 2/10/2011)

Cunningham v Newman (2011 NY Slip Op 00628) (Date Decided 2/3/2011)

Bustos v Lenox Hill Hosp. (2011 NY Slip Op 00432) (Date Decided 1/27/2011)

Matter of Zartoshti v Columbia Univ. (2010 NY Slip Op 09003) (Date Decided 12/7/2010)

Motor Veh. Acc. Indem. Corp. v NYC East-West Acupuncture, P.C. (2010 NY Slip Op 07111) (Date Decided 10/7/2010)

Mulgrew v Board of Educ. of the City School Dist. of the City of New York (2010 NY Slip Op 05863) (Date Decided 7/1/2010)

Matter of Girigorie v New York City Dept. of Hous. Preserv. & Dev. (2010 NY Slip Op 05880) (Date Decided 7/1/2010)

Nimkoff v Nimkoff (2010 NY Slip Op 04633) (Date Decided 6/1/2010)

Suckishvili v Visiting Nurse Serv. of N.Y. (2010 NY Slip Op 04647) (Date Decided 6/1/2010)

Matter of Days Impex Ltd. v Solomon Blum Heymann & Stich LLP (2010 NY Slip Op 04441) (Date Decided 5/25/2010)

Popowich v Korman (2010 NY Slip Op 04104) (Date Decided 5/13/2010)

Torres v Terence Cardinal Cooke Health Care Ctr. (2010 NY Slip Op 03379) (Date Decided 4/27/2010)

Matter of Riches v New York City Council (2010 NY Slip Op 03046) (Date Decided 4/15/2010)

Matter of Rodriguez v City of New York (2010 NY Slip Op 02020) (Date Decided 3/16/2010)

White v White (2010 NY Slip Op 01880) (Date Decided 3/11/2010)

Carter v Isabella Geriatric Ctr., Inc. (2010 NY Slip Op 01745) (Date Decided 3/4/2010)

Zak v Mintz (2010 NY Slip Op 00207) (Date Decided 1/12/2010)

Wyser-Pratte v Wyser-Pratte (2009 NY Slip Op 09531) (Date Decided 12/22/2009)

Septimus v Matos (2009 NY Slip Op 09166) (Date Decided 12/10/2009)

Matter of DeMartino v New York City Dept. of Transp. (2009 NY Slip Op 08073) (Date Decided 11/10/2009)

Ban Do Constr., Inc. v Connolly (2009 NY Slip Op 07161) (Date Decided 10/6/2009)

Matter of AJK Café, Inc. v New York State Liq. Auth. (2009 NY Slip Op 06648) (Date Decided 9/24/2009)

Matter of Grasso v New York City Tr. Auth. (2009 NY Slip Op 04274) (Date Decided 6/2/2009)

Gliber v Choi (2009 NY Slip Op 03930) (Date Decided 5/19/2009)

Ansour v Ansour (2009 NY Slip Op 03030) (Date Decided 4/21/2009)

Brockman v Brockman (Date Decided 2/24/2009)

Lusk v Lusk (2008 NY Slip Op 07969) (Date Decided 10/21/2008)

Belmore-Gaillard v Gaillard (2008 NY Slip Op 04795) (Date Decided 5/29/2008)

Kinberg v Kinberg (2008 NY Slip Op 03696) (Date Decided 4/24/2008)

Camaiore v Farance (2008 NY Slip Op 03390) (Date Decided 4/17/2008)

Carter v Carter (2008 NY Slip Op 02635) (Date Decided 3/20/2008)

Evans v Evans (2008 NY Slip Op 01602) (Date Decided 2/21/2008)

Stots v Daniels (2008 NY Slip Op 01070) (Date Decided 2/7/2008)

Karas-Abraham v Abraham (2007 NY Slip Op 09686) (Date Decided 12/6/2007)

Trexler v Kahanovitz (2007 NY Slip Op 05138) (Date Decided 6/12/2007)

Kesten v Weingarten (2007 NY Slip Op 04576) (Date Decided 5/31/2007)

Gross v Gross (2007 NY Slip Op 04362) (Date Decided 5/22/2007)

Nimkoff v Nimkoff (2007 NY Slip Op 00376) (Date Decided 1/18/2007)

Bianco v Bianco (2007 NY Slip Op 00244) (Date Decided 1/16/2007)

A.C. v D.R. (2007 NY Slip Op 00216) (Date Decided 1/11/2007)

Muslin v Passer-Muslin (2006 NYSlipOp 10136) (Date Decided 12/28/2006)

Eun Lee v Solimano (2006 NYSlipOp 08185) (Date Decided 11/14/2006)

Crane v Crane (2006 NYSlipOp 07833) (Date Decided 10/31/2006)

St. Clement v Casale (2006 NYSlipOp 03697) (Date Decided 5/11/2006)

Church v McCabe (2006 NYSlipOp 00309) (Date Decided 1/19/2006)

Murphy v Murphy (2005 NYSlipOp 10201) (Date Decided 12/29/2005)

Filippatos v Filippatos (2005 NYSlipOp 07590) (Date Decided 10/13/2005)

Ritz v Ritz (2005 NYSlipOp 06375) (Date Decided 8/11/2005)

Haynes v Haynes (2005 NYSlipOp 04501) (Date Decided 6/7/2005)

Spector v Spector (2005 NYSlipOp 04315) (Date Decided 5/26/2005)

Weinstein v Weinstein (2005 NYSlipOp 03778) (Date Decided 5/10/2005)

Hale v Hale (2005 NYSlipOp 01997) (Date Decided 3/17/2005)

IBE Trade Corp. v Litvinenko (2005 NYSlipOp 01624) (Date Decided 3/3/2005)

Sygrove v Sygrove (2005 NYSlipOp 01277) (Date Decided 2/22/2005)

Sygrove v Sygrove (2005 NYSlipOp 01278) (Date Decided 2/22/2005)

Bartha v Bartha (2005 NY Slip Op 00450) (Date Decided 1/27/2005)

Mitnick v Rosenthal (2005 NYSlipOp 00357) (Date Decided 1/25/2005)

Matter of Dier (2004 NYSlipOp 09227) (Date Decided 12/14/2004)

Lewittes v Blume (2004 NYSlipOp 09016) (Date Decided 12/7/2004)

Cahen-Vorburger v Vorburger (2004 NYSlipOp 08599) (Date Decided 11/23/2004)

Lewittes v Lewittes (2004 NYSlipOp 08148) (Date Decided 11/16/2004)

McCarthy v McCarthy (2004 NYSlipOp 07775) (Date Decided 10/28/2004)

Racz v Racz (2004 NYSlipOp 07446) (Date Decided 10/19/2004)

St. Clement v Londa (2004 NYSlipOp 04863) (Date Decided 6/10/2004)

Haynes v Haynes (2004 NYSlipOp 01711) (Date Decided 3/16/2004)

Ligreci v Ligreci (2004 NYSlipOp 01680) (Date Decided 3/11/2004)

J.A. v S.A. (2004 NYSlipOp 01217) (Date Decided 2/24/2004)

Caffrey v Caffrey (2003 NYSlipOp 19802) (Date Decided 12/23/2003)

Lewittes v Lewittes (2003 NYSlipOp 19669) (Date Decided 12/18/2003)

Rubin v Rubin (2003 NYSlipOp 18414) (Date Decided 11/18/2003)

Tzo Kao Chang v Wei Qing Liu (2003 NYSlipOp 18336) (Date Decided 11/13/2003)

Discipline For Police and Fire Department Members Circa 2005

In the Matter of Thomas Von Essen, as Fire Commissioner of the City of New York, et al., Respondents, v. New York City Civil Service Commission, Respondent, and Robert Joel, Appellant.
No. 16


COURT OF APPEALS OF NEW YORK
4 N.Y.3d 220; 825 N.E.2d 128; 791 N.Y.S.2d 887; 2005 N.Y. LEXIS 224
January 11, 2005, Argued
February 22, 2005, Decided

PRIOR HISTORY: Appeal, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered December 23, 2003. The Appellate Division (1) reversed, on the law, a judgment of the Supreme Court, New York County (Joan Madden, J.), entered in a proceeding pursuant to CPLR article 78, which had denied the petition and dismissed the proceeding; (2) granted the petition; and (3) annulled the determination of the New York City Civil Service Commission that it had subject matter jurisdiction to hear the appeal of respondent firefighter from the Fire Commissioner's order dismissing him from the force for misconduct.

Matter of Von Essen v. New York City Civ. Serv. Commn, 3 A.D.3d 115, 769 N.Y.S.2d 260, 2003 N.Y. App. Div. LEXIS 13677 (1st Dept, 2003), affirmed.

DISPOSITION: Order of the appellate division affirmed.

CASE SUMMARY

PROCEDURAL POSTURE: Appellants, the New York City Civil Service Commission and a city firefighter, challenged a decision by a court in the Appellate Division (New York), which reversed a decision dismissing a N.Y. C.P.L.R. art. 78 proceeding initiated by respondent city fire department commissioner, who sought to annul the commission's determination that it had jurisdiction over the firefighter's appeal of his termination.

OVERVIEW: The firefighter was charged with violating fire department regulations by calling in two false alarms. At a hearing before an administrative law judge, the firefighter admitted his guilt and the judge recommended that he be terminated. The commissioner adopted the recommendation and ordered termination. The firefighter sought an appeal to the commission. The commission ordered the parties to brief the issue of whether it had jurisdiction over the appeal. After the commission ruled that it had jurisdiction, the commissioner initiated an N.Y. C.P.L.R. art. 78 proceeding to annul the commission's determination. The supreme court dismissed the art. 78 proceeding, but the appellate division reversed that decision. The commission and the firefighter appealed. The court found that fire department discipline, like police department discipline, was outside the scope of N.Y. Civ. Serv. Law §§ 75, 76, and was, thus, not subject to the commission's jurisdiction. New York City, N.Y., Charter § 487(a) gave the fire department sole and exclusive power over its own management and New York City, N.Y., Admin. Code § 15-113, gave the commissioner discretion to discipline offending firefighters.

OUTCOME: The court affirmed the appellate division's decision.

CORE TERMS: discipline, fire department, firefighters, disciplined, charter, punish, police officers, offending, repeal, modify, punishment imposed, exclusive power, saving clause, disciplinary, counterpart, cognizance, removal Administrative Law > Separation of Powers > Jurisdiction Governments > State & Territorial Governments > Employees & Officials

N.Y. Civ. Serv. Law § 76 (1) permits an appeal to the Civil Service Commission from punishment imposed pursuant to the provisions of N.Y. Civ. Serv. Law § 75.

Governments > State & Territorial Governments > Employees & Officials

See New York City, N.Y., Charter § 487(a).

Governments > State & Territorial Governments > Employees & Officials

The New York City Administrative Code section governing fire department discipline is New York City, N.Y., Admin. Code § 15-113, which says that the commissioner of the fire department shall have power in his or her discretion to punish the offending party.

Governments > Legislation > Interpretation

The saving clause of N.Y. Civ. Serv. Law § 76 (4) provides that neither N.Y. Civ. Serv. Law § 75 nor N.Y. Civ. Serv. Law § 76 shall be construed to repeal or modify other laws.

Administrative Law > Separation of Powers > Jurisdiction

Governments > State & Territorial Governments > Employees & Officials

New York City Fire Department discipline, like New York ity Police Department discipline, is outside the scope of N.Y. Civ. Serv. Law §§ 75, 76, and, thus, is not subject to the jurisdiction of the Civil Service Commission.

HEADNOTES

Civil Service -- Firefighters -- Appeal of Disciplinary Determination
Firefighters disciplined pursuant to section 15-113 of the Administrative Code of the City of New York may not appeal their discipline to the New York City Civil Service Commission. Although Civil Service Law § 76 (1) permits an appeal to the Commission from punishment imposed pursuant to Civil Service Law § 75, firefighters are not disciplined pursuant to that section. The Fire Commissioner's "sole and exclusive power" to make final disciplinary determinations with regard to members of the Fire Department (NY City Charter § 487 [a]) and power to punish the offending party (Administrative Code § 15-113) is subject only to review by the courts under CPLR article 78. Since the Charter and Code provisions governing Fire Department discipline were in existence before Civil Service Law §§ 75 and 76, the saving clause of Civil Service Law § 76 (4), providing that neither section 75 nor section 76 "shall be construed to repeal or modify" other laws, is applicable. Fire Department discipline is outside the scope of Civil Service Law §§ 75 and 76 and thus not subject to the jurisdiction of the Civil Service Commission.

COUNSEL: Sullivan Papain Block McGrath & Cannavo, P.C., New York City (Michael N. Block and Stephen C. Glasser of counsel), for appellant. The Appellate Division erred as a matter of law in holding that the New York City Civil Service Commission has no subject matter jurisdiction under Civil Service Law § 76 to review a penalty of dismissal imposed by the Fire Commissioner of the City of New York against a firefighter for misconduct where, when viewed within the context of Matter of Montella v Bratton (93 N.Y.2d 424, 713 N.E.2d 406, 691 N.Y.S.2d 372 [1999]): (i) Civil Service Law §§ 75 and 76 authorize such review generally as to all civil servants; and (ii) in contrast to the situation presented when police officers are disciplined under Administrative Code of the City of New York §§ 14-115 and 14-116--which specifically restrict review of disciplinary penalties of police officers to a CPLR article 78 proceeding--Administrative Code § 15-113, governing discipline of New York City firefighters, is silent with regard to the procedure to use to review such penalty decisions. (Elliot v Green Bus Lines, 58 N.Y.2d 76, 445 N.E.2d 1098, 459 N.Y.S.2d 419; People v Walker, 81 N.Y.2d 661, 623 N.E.2d 1, 603 N.Y.S.2d 280; Pajak v Pajak, 56 N.Y.2d 394, 437 N.E.2d 1138, 452 N.Y.S.2d 381; People v Tychanski, 78 N.Y.2d 909, 577 N.E.2d 1046, 573 N.Y.S.2d 454; Matter of Smithwick v Levitt, 154 A.D.2d 240, 546 N.Y.S.2d 346; People ex rel. Sibley v Sheppard, 54 N.Y.2d 320, 429 N.E.2d 1049, 445 N.Y.S.2d 420; Matter of Rockland County Patrolmen's Benevolent Assn. v Town of Clarkstown, 149 A.D.2d 516, 539 N.Y.S.2d 993; Matter of Wein v City of New York, 56 N.Y.2d 758, 437 N.E.2d 275, 452 N.Y.S.2d 16; Matter of New York City Dept. of Envtl. Protection v New York City Civ. Serv. Commn., 78 N.Y.2d 318, 579 N.E.2d 1385, 574 N.Y.S.2d 664.)

Michael A. Cardozo, Corporation Counsel, New York City (Julie Steiner and Barry P. Schwartz of counsel), for Thomas Von Essen and another, respondents. The Appellate Division majority correctly held that a disciplined firefighter may not appeal to the New York City Civil Service Commission, because the Commission does not have subject matter jurisdiction to review such matters. Rather, a firefighter may only bring a CPLR article 78 proceeding. This Court's 1999 unanimous decision in Matter of Montella v Bratton (93 N.Y.2d 424, 713 N.E.2d 406, 691 N.Y.S.2d 372 [1999]), which pertained to the identical issue as here but with respect to police officer disciplinary determinations, is dispositive. (Matter of Finegan v Cohen, 275 N.Y. 432, 10 N.E.2d 795; Burke v Kern, 287 N.Y. 203, 38 N.E.2d 500; Matter of City of New York v MacDonald, 201 A.D.2d 258, 607 N.Y.S.2d 24; 83 N.Y.2d 759, 639 N.E.2d 417, 615 N.Y.S.2d 876; Ferrin v New York State Dept. of Correctional Servs., 71 N.Y.2d 42, 517 N.E.2d 1370, 523 N.Y.S.2d 485; Patrolmen's Benevolent Assn. of City of N.Y. v City of New York, 41 N.Y.2d 205, 359 N.E.2d 1338, 391 N.Y.S.2d 544; Rangolan v County of Nassau, 96 N.Y.2d 42, 749 N.E.2d 178, 725 N.Y.S.2d 611; Riley v County of Broome, 95 N.Y.2d 455, 742 N.E.2d 98, 719 N.Y.S.2d 623; People v Brancoccio, 83 N.Y.2d 638, 634 N.E.2d 954, 612 N.Y.S.2d 353; Matter of Tucker v Board of Educ., 82 N.Y.2d 274, 624 N.E.2d 643, 604 N.Y.S.2d 506; Doctors Council v New York City Employees' Retirement Sys., 71 N.Y.2d 669, 525 N.E.2d 454, 529 N.Y.S.2d 732.)

JUDGES: Opinion by Judge R.S. Smith. Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur.

OPINION BY: R.S. Smith

OPINION

[*222] [***887] [**128] R.S. Smith, J.
In Montella v Bratton (93 N.Y.2d 424, 713 N.E.2d 406, 691 N.Y.S.2d 372 [1999]) we held that uniformed police officers disciplined pursuant to section 14-115 of the Administrative Code of the City of New York could not appeal their discipline to the New York City Civil Service Commission. We hold today that the same rule applies to firefighters disciplined pursuant to section 15-113 of the Administrative Code.

Procedural History
Firefighter Robert Joel was charged with violating Fire Department regulations by calling in two false alarms. At a hearing before an administrative law judge, Joel admitted his guilt and the judge recommended that he be terminated from his position with the department. The Fire Commissioner adopted the recommendation, and ordered termination.

Joel sought to appeal this ruling to the New York City Civil Service Commission. The Civil Service Commission ordered the parties to brief the question of whether it had jurisdiction over the appeal, and after receiving the briefs determined that it did. The Fire Commissioner then filed the present CPLR article 78 proceeding, seeking to annul the Civil Service Commission's determination. Supreme Court upheld the Civil Service Commission's [*223] jurisdiction, and dismissed the article 78 proceeding. The Appellate Division reversed, holding in a thorough and well-reasoned opinion that Montella was controlling. [***888] [**129] We agree with the Appellate Division and affirm.

Discussion

The Civil Service Commission claims jurisdiction here pursuant to HN1Go to this Headnote in the case.Civil Service Law § 76 (1), which permits an appeal to that Commission from punishment "imposed pursuant to the provisions of section seventy-five of this chapter." Thus the dispositive issue is whether Joel was disciplined pursuant to Civil Service Law § 75, which prescribes certain procedures for the removal or penalizing of civil servants charged with "incompetency or misconduct."

We held in Montella that Civil Service Law §§ 75 and 76 did not apply to Police Department discipline because we found in provisions of the New York City Charter and Administrative Code a legislative direction that such discipline be left to the discretion of the Police Commissioner, subject only to review by the courts under article 78. Specifically, we relied on NY City Charter § 434 (a), which provides that the Police Commissioner "shall have cognizance and control of the government, administration, disposition and discipline of the department, and of the police force of the department"; and on Administrative Code § 14-115 (a), providing that the Police Commissioner "shall have power, in his or her discretion . . . to punish the offending party" in specified ways. Since these provisions were in existence before Civil Service Law §§ 75 and 76 were enacted, and since Civil Service Law § 76 (4) provides that "[n]othing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees . . . ," we concluded that the Civil Service Law sections did not affect the Police Commissioner's power to discipline police officers.

The Charter and Administrative Code provisions applicable to Fire Department discipline closely parallel those on which we relied in Montella. The relevant Charter provision, section 487 (a), is even more strongly worded than NY City Charter § 434 (a). While the latter provision, governing Police Department discipline, refers to "cognizance and control," HN2Go to this Headnote in the case.section 487 (a) provides that the Fire Commissioner "shall have sole and exclusive power and perform all duties for the government, discipline, [*224] management, maintenance and direction of the fire department." HN3Go to this Headnote in the case.The Administrative Code section governing Fire Department discipline is section 15-113, which uses the same words quoted above from Administrative Code § 14-115. Section 15-113, like its counterpart applicable to the police, says that the Commissioner "shall have power, in his or her discretion . . . to punish the offending party."

Since the Charter and Code provisions governing Fire Department discipline, like those governing Police Department discipline, were in existence before Civil Service Law §§ 75 and 76 were enacted, HN4Go to this Headnote in the case.the saving clause of Civil Service Law § 76 (4), providing that neither section 75 nor section 76 "shall be construed to repeal or modify" other laws, is applicable here as it was in Montella. HN5Go to this Headnote in the case.Fire Department discipline, like Police Department discipline, is outside the scope of Civil Service Law §§ 75 and 76 and thus not subject to the jurisdiction of the Civil Service Commission.

The Civil Service Commission and Supreme Court found Montella to be distinguishable because in Montella we relied on two provisions of law that have no counterpart here: Civil Service Law § 75 (3-a), which specifically provides that the Police Commissioner "may punish [a] police officer [***889] [**130] pursuant to the provisions of sections 14-115 and 14-123 of the administrative code of the city of New York," and Administrative Code § 14-116, which authorizes the bringing of an Article 78 proceeding within four months to review discipline imposed by the Police Commissioner. But while section 75 (3-a) and section 14-116 supported our holding in Montella, they were not indispensable to it, for the reasons explained by the Appellate Division opinion in the present case. In Montella, Sections 75 (3-a) and 14-116 provided confirmation of what other legislative provisions also made clear: that Police Department discipline was not subject to Civil Service Commission review. Even without corresponding confirmatory evidence, we reach the same conclusion with respect to the Fire Department.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur.

DISPOSITION: Order of the appellate division affirmed. 

New York City Board of Education Wins The Class Size Case On Appeal To The First Department

Mulgrew v. Board of Education City of New York, 260000/10
Before: Angela Mazzarelli, J.P., David B. Saxe, Rolando T. Acosta, Helen E. Freedman, JJ.

260000/10
07-29-2011

Cite as: Mulgrew v. Board of Education City of New York, 260000/10, NYLJ 1202508909600, at *1 (App. Div. 1st, Decided July 28, 2011)

Before: Angela Mazzarelli, J.P., David B. Saxe, Rolando T. Acosta, Helen E. Freedman, JJ.
Decided: July 28, 2011

AMICI CURIAE

State Education Department and Commissioner of the State Education Department

ATTORNEYS
Michael A. Cardozo, Corporation Counsel, New York (Alan G. Krams, Kristin M. Helmers and Emily Sweet of counsel), for appellants.
Stroock & Stroock & Lavan LLP, New York (Charles G. Moerdler, Alan M. Klinger and Dina Kolker of counsel), Meyer, Suozzi, English & Klein, P.C., New York (Basil A. Paterson and Barry Peek of counsel), Carol L. Gerstl, New York and Adam S. Ross, New York, for respondents.
Eric T. Schneiderman, Attorney General, New York (Alison J. Nathan, Barbara D. Underwood and Benjamin N. Gutman of counsel), for Amici Curiae.

spondents appeal from an order of the Supreme Court, Bronx County (John A. Barone, J.), entered July 29, 2010, which denied their cross motion to dismiss the article 78 proceeding.

DAVID B. SAXE, J.

Following the Court of Appeals' decision in Campaign for Fiscal Equity v. State (100 NY3d 893, 919 [2003]), finding that the State Legislature's financing system for the State's public schools failed to afford New York City public school children the constitutionally-mandated opportunity for a meaningful education, in 2007 the Legislature enacted a law entitled "Contract for Excellence" (see Education Law §211-d, as added by L 2007, ch 57, pt A, §12). The Contract for Excellence program provided additional funding to underperforming school districts throughout the state, targeting the expenditure of those additional funds for approved enhancements (id.).

The statute includes one provision in particular, section 211-d(2)(b), that is applicable only to New York City's school district, the enforcement of which is at issue here. That provision required the New York City school district to create a five-year plan to reduce average class sizes, and specified the means by which class size reduction was to be accomplished, such as through creation or construction of more classrooms and school buildings, placement of more than one teacher per classroom, or by other means (Education Law §211-d[2][b][ii]). This portion of the statute also included a provision that the "sole and exclusive remedy" for violation of this paragraph would be a petition to the State Education Commissioner, whose decision would be "final and unreviewable."

Pursuant to amendments to the statute in 2009, the Legislature added a requirement that the City school district "report to the commissioner on the status of the implementation of its plan to reduce average class sizes pursuant to subparagraph (ii) of this paragraph" (§211-d[2][b][iii]). This newly-added subparagraph set forth the required contents of this report, specifying that it must identify all schools that received the targeted funds and indicate the amount each of those schools received; provide a detailed description of how the funds contributed to achieving class size reduction; report student enrollment and average class sizes for each school year; and identify those schools that made insufficient progress toward achieving the class size reduction goals, and provide a detailed description of the additional actions that will be taken to reduce class sizes in such schools. The required report was to be submitted to the Commissioner by November 17, 2009. (Id.)

Further, subdivision (6) of §211-d requires an addition to the annual audit report that the Board is required to submit each January 1st for the prior fiscal year pursuant to Education Law §2116-a. In particular, the subdivision requires that the audit report contain a certification by either the City Comptroller or the accountant who conducted the audit, stating that "the increases in total foundation aid and supplemental educational improvement plan grants have been used to supplement, and not supplant funds allocated by the district in the base year for such purposes" (emphasis added).

The Contract for Excellence legislation initially became effective on April 9, 2007, and remained in effect only through the 2009-2010 school year; the legislation was not extended to the 2010-2011 school year.

In compliance with the statute, the Board of Education (predecessor to the current Department of Education) adopted, and the State Education Department approved, Contracts for Excellence for each covered school year, which included the required "Five Year Class Size Reduction Plan," prepared and approved in 2007 and updated in 2008. This plan committed to specific expenditures earmarked for class size reduction; petitioners assert that, over the three school years the Contracts for Excellence were in effect, the Board of Education received approximately $760 million in Contract funds specifically designated for class size reduction.

The article 78 petition, dated January 4, 2010, alleges that respondent Board of Education violated Education Law §211-d by utilizing Contract for Excellence funds to offset budget cuts rather than to reduce class sizes as required by the statute. Petitioners offer in support of their claim the City Comptroller's report dated September 9, 2009, regarding its audit of the Department of Education's administration of the Early Grade Class Size Reduction Program (EGCSR), the funding program that preceded the Contract for Excellence program. In that report, the Comptroller stated that during the 2008-2009 school year, some $46.8 million of EGCSR funds were used to supplant tax levy funds. Specifically, the audit report explained that "DOE used nearly $46.8 million of the $179.9 million in EGCSR funds earmarked for reducing early grade class size to supplant $46.8 million in tax levy funds. By using EGCSR funds in place of tax levy funds, schools free-up less restrictive money to spend on other budget items instead of further reducing classroom averages. The $46.8 million should have been spent on creating an additional 414 general education classes at 245 schools across the City, but these funds were improperly used instead to pay for teacher positions that would have existed without the EGCSR program."

Petitioners seek a declaration that respondent Board of Education has failed to comply with its obligations under Education Law §211-d and its class size reduction plan, a determination that this failure is arbitrary and capricious, and a direction that it comply with these obligations.

Respondents moved to dismiss the petition on the grounds that (1) Supreme Court lacked original jurisdiction over this challenge, in view of the language in §211-d(2)(b)(ii) that "the sole and exclusive remedy for a violation of the requirements of this paragraph shall be pursuant to a petition to the commissioner," and (2) petitioners failed to exhaust their administrative remedies at the State Education Department. The motion court denied the motion, concluding that the placement of the "sole and exclusive remedy" language within the framework of the statute indicates that it applies only to challenges to the Board's class size reduction plan, not to challenges regarding its implementation of that plan.

Respondents appeal from that ruling. For the reasons that follow, we reverse.

Initially, we reject petitioners' interpretation, adopted by the motion court, that the word "paragraph" in Education Law §211-d(2)(b)(ii), where it refers to "a violation of the requirements of this paragraph" (emphasis added), applies only to a violation of subparagraph (ii). The word "paragraph" is not carelessly employed in this context; in formulating statutes, the Legislature carefully refers to sections, subdivisions, paragraphs and subparagraphs. Indeed, the language of §211-d establishes that this section of the Education Law is broken down into subdivisions 1 through 9, and that each subdivision is broken down into paragraphs denominated by lower case letters, which are in turn broken down into subparagraphs denominated by lower case roman numerals (see Education Law §211-d(1)(e) [referencing "the requirements of subparagraph (vi) of paragraph a of subdivision two of this section"]). Consequently, the provision's reference to "this paragraph" is incontrovertibly intended to apply to the entire portion of the statute contained within section 211-d, subdivision (2), paragraph (b), which includes subparagraphs (I), (ii) and (iii). Therefore, contrary to the motion court's view, the portion of §211-d(2)(b)(ii) that limits the remedy for a violation to a petition to the Commissioner, applies to both that portion requiring the Board of Education to formulate a plan to reduce class sizes ([b][ii]) as well as that requiring it to report on the implementation of those plans ([b][iii]). Petitioners' argument that the Legislature intended to distinguish between the review of actions taken by the Board in the pre- and post-approval stages (i.e. the formulation and implementation) of its contract and plan is unavailing.

The Legislature's explicit limitation of available remedies for claimed violations by the Board of Education of the directive to formulate and implement a plan to reduce class sizes, is well within the discretion of the Legislature.

"[T]he constitutionally protected jurisdiction of the Supreme Court does not prohibit the Legislature from conferring exclusive original jurisdiction upon an agency in connection with the administration of a statutory regulatory program. In situations where the Legislature has made that choice, the Supreme Court's power is limited to article 78 review, except where the applicability or constitutionality of the regulatory statute, or other like questions, are in issue"

(Sohn v. Calderon, 78 NY2d 755, 767 [1991]).

Petitioners assert that while the Commissioner may have original jurisdiction1 over challenges to either the class-size-reduction plan the Board presents under §211-d(2)(b)(ii]), or to the reports it submits regarding its implementation of that plan under §211-d(2)(b)(iii]), their petition does not charge a violation of either subparagraph. Rather, they argue that they allege a violation of §211-d(6).

Subdivision (6) of §211-d requires that in the annual audit report that the Board is required to submit each January 1st for the prior fiscal year pursuant to Education Law §2116-a, the City Comptroller or the accountant who conducted the audit include a certification "that the increases in total foundation aid and supplemental educational improvement plan grants have been used to supplement, and not supplant funds allocated by the district in the base year for such purposes" (emphasis added). Because the September 1, 2009 certification could not affirmatively make that statement, but rather, stated that during the 2008-2009 school year, some $46.8 million of Contract funds "were used to supplant rather than supplement City tax levy funds," petitioners argue, that a petition to the Commissioner was not necessary before commencing this proceeding.

However, in asserting their claimed violation, petitioners improperly rely on subdivision (6) of section 211-d. Indeed, that subdivision merely directs that the entity providing the annual audit include a certification to that effect. Assuming the truth of petitioners' allegations that the Board of Education used Contract for Excellence funds to replace previous sources of funding, that failure is not a direct violation of §211-d(6) because it is not a failure to provide an audit report containing a certification from the auditor. The alleged improper use of Contract for Excellence funds is more accurately characterized as noncompliance with the dictates of §211-d(2)(b)(iii), because if those funds were not spent on the contemplated class size reduction methods, it would be disclosed when the Board of Education reported on how the targeted funds were spent for the purpose of achieving class size reduction.

Even without the explicit "sole and exclusive remedy" clause in §211-d(2)(b)(ii), the Legislature's intent to grant the State Education Department original jurisdiction over claimed failures of compliance with its directives is apparent from the overall legislative scheme. Section 211-d gives the State Education Department extensive oversight and monitoring responsibilities over the Contracts for Excellence, including approving each contract (§211-d[5]), and reviewing reports regarding implementation (§211-d[2][b][iii]) and audits (§211-d[6]). In addition, the statute directs the Department to "develop a methodology for reporting school-based expenditures by all school districts subject to the provisions of this section" (§211-d[9]). Indeed, the intent to give the State Education Commissioner original jurisdiction to adjudicate claims regarding alleged failures to comply with the Contract for Excellence requirements "is bolstered by the fact that all of the relevant and pertinent information to such…determination[s] is readily available to him and he possesses the requisite competence and expertise necessary for such…determination[s]" (Matter of Onteora Cent. School Dist. at Boiceville [Onteora Non-Teaching Empls. Assn.], 79 AD2d 415, 417-418 [1981], affd 56 NY2d 769 [1982]).

Even if the State Education Department had not been given original jurisdiction over challenges such as that raised here, the doctrine of exhaustion of administrative remedies would in any event require that the review procedures dictated by Education Law §§211-d(7) and 310(7) be employed before permitting judicial review. Section 211-d(7) requires that the Trustees, Board of Education or Chancellor of each school district adopt procedures allowing "parents or persons in parental relation" to challenge implementation of the district's Contract for Excellence, by which an initial complaint may be brought to the principal or superintendent, with review by the Chancellor, whose decision may in turn be appealed to the State Education Commissioner. Accordingly, parents and organizations suing as their representatives should be compelled to utilize this statutory review process to obtain a final administrative determination before seeking judicial review.

Education Law §310(7), which gives the State Commissioner of Education authority over grievances arising under the Education Law, does not provide for exclusive or original jurisdiction. Nevertheless, in this context, it would be consistent with the statute's scheme to require those petitioner-organizations whose complaints do not fall under section 211-d(7) to exhaust their remedies under Education Law §310(7) before proceeding to court.

The motion court reasoned that the exhaustion of administrative remedies was not required because it deemed the question presented as purely one of statutory interpretation. However, the issue raised by petitioners is whether the Board of Education improperly utilized funds allocated for the particular purpose of reducing class size to make up for reductions from its other funding sources. Determination of this point falls squarely within the purview of the State Education Department, as it will require review and comparison of budgets, expenditures, and funding allocations.

Petitioners argue that a petition to the State Education Department would be futile. While a proper showing of futility may justify making an exception to the exhaustion of remedies requirement (see Watergate II Apts. v. Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]), it is not established here. In support of their argument, petitioners assert that the State Education Department does not have the power to intrude into the New York City budgetary process and require the City to expend additional funds to ensure that the Board of Education spends Contract for Excellence funds as contemplated by the Legislature. Notably, however, no such assertion is made in the present Article 78 petition. Therefore, this argument fails to establish that no relief would be possible through a petition to the Commissioner of Education.

Nor is there reason to conclude that requiring petitioners to exhaust their administrative remedy would cause irreparable harm (Watergate II, 46 NY2d at 57). Unlike Lehigh Portland Cement Co. v. New York State Dept. of Envtl. Conservation (87 NY2d 136 [1995]), there is nothing here to indicate either that the Commissioner would act less expeditiously than the court, or that the Commissioner would be unable to redress established violations of the statute.

Finally, petitioners cannot succeed in their efforts by citation to a September 22, 2010 Daily News article reporting that the State Education Department and the Board of Education covertly agreed in a February 23, 2010 letter to allow the Board to increase class sizes (Gonzalez, City Took Money for Nothing as it Got Aid to Cut Class Sizes, OK'ed Packing More Students Together, New York Daily News, Sept. 22, 2010, available at http://articles.nydailynews.com/2010-09-22/local/27076031_1_ class-size-reduction-plan-fiscal-equity-state-aid). The article's report of steps taken by the Commissioner cannot be relied on to establish any inability on the Commissioner's part to properly determine petitioners' claimed violations of Education Law §211-d.

Accordingly, the order of the Supreme Court, Bronx County (John A. Barone, J.), entered July 29, 2010, which denied respondents' cross motion to dismiss the article 78 proceeding, should be reversed, on the law, without costs, the cross motion granted and the proceeding dismissed.

All Concur.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
1. The Education Law provision does not preclude Supreme Court's jurisdiction over the matter. "Even where judicial review is proscribed by statute, the courts have the power and the duty to make certain that the administrative official has not acted in excess of the grant of authority given * * * by statute or in disregard of the standard prescribed by the legislature" (Matter of New York City Dept. of Envtl. Protection v. New York City Civ. Serv. Commn., 78 NY2d 318, 323, quoting Matter of Guardian Life Ins. Co. Of Am. v. Bohlinger, 308 NY 174, 183 [1954]).

Blogging Teacher to Return to CB East

Natalie Monroe



LINK
Will she or won’t she?

Ever since CB East teacher Natalie Munroe made national headlines in February for writing negative blog posts about her students, the question on most everyone’s mind has been whether she would return to the Buckingham high school this fall.

The answer to that question has arrived.

Her attorney, Steven Rovner, told news outlets Wednesday that Munroe would return to CB East and teach the same classes, including Honors English, as before.

On her blog, Munroe posted Wednesday nighther version of how she found out she would be returning to work. She said she asked to be transferred to another school, but was denied.

Munroe has been a teacher at CB East, one of the top high schools in Pennsylvania, since 2006. CB East, one of three high schools in the Central Bucks School District, ranks 9^th in Pennsylvaniabased on a comparison of 2009-2010 test scoresfrom the state’s standardized testing system, the Pennsylvania System of School Assessment.

This year, it graduated 100 percent of its senior class, three out of 10 of whom graduated with a 3.7 or better grade point average. Of the 2011 graduating class, 94 percent are going on to college.

Munroe was suspended in February when her blog went public and has been out on maternity leave since then. She was scheduled to inform the Central Bucks School District by August whether she wanted to return to her job.

Wednesday, the district announced that it would hold a press briefing next Wednesday, August 3, to discuss Munroe’s status. A district representative declined comment until then.

Though they’ve had little to say publicly about Munroe since the incident went viral, the question of what to do about her has hung over the school board. Do they fire her? Do they do nothing, and allow her to return if she chooses?

“I’m really torn,” board member Geri McMullin, who represents Doylestown, said Wednesday. “I can go either way. I need to hear more from our legal people before I decide. I don’t want to put the district in financial jeopardy.”

But how parents and students and even her fellow teachers will react to Munroe’s return is another story.

"She will be completely ineffectual here," said one teacher, who asked not to be identified.

How it all began

Natalie Munroe never identified herself or her school in her blog.

Entitled “Where are we going and why are we in this handbasket,” most of her posts were about her life, her friends, her daughter, and her pregnancy with baby No. 2.

But her blog carried her photo, and the name Natalie M.

She wrote about her colleagues and her life at the high school where she had been a teacher for just a few semesters. She said she had taken to eating lunch alone because of conflicts with her colleagues.

But it was a post about her students that propelled the Warminster woman to notoriety.

She wrote about the frustration of having to choose “canned” comments to put on her students’ report cards and suggested alternatives, including:

• “A complete and utter jerk in all ways. Although academically ok, your child has no other redeeming qualities.”
• “One of the few students I can abide this semester!”
• “Has no business being in Academic.”
• “Lazy asshole.”
• “Just as bad as his sibling. Don’t you know how to raise kids?”
• “Weirdest kid I’ve ever met.”
• “I hear the trash company is hiring…”
• “There’s no other way to say this: I hate your kid.”

It ended with, “Thus, the old adage…if you don’t have anything nice to say…say 'cooperative in class.'"

A piece of clip art that accompanied the post particularly enraged disability advocates and school board members. It depicted a special-needs school bus and read, “I don’t care if you lick windows, take the special bus, or occasionally pee on yourself, you hang in there sunshine, you’re friggin’ special.”

The story goes viral

The post was from 2010, but in February 2011, Munroe’s blog was discovered, and students and parents were soon emailing the link across cyberspace.

Some students used the occasion to lash back at Munroe, calling her vulgar names, as well as the "worst teacher I ever had."

The story quickly went very, very public, from local news outlets to CNN, MSNBC and the BBC.

Competing Facebook pages were launched, supporting or bashing Munroe. An MSNBC poll garnered nearly 84,000 votes, 97% of whom voted that Munroe should not be suspended.

Of course, that national attention waned. But back here at home, everyone involved knew a day of reckoning still lay ahead.

Natalie Munroe still blogs, this time at an eponymous website, nataliemunroe.com.

She still writes about food and family but also has addressed the events that landed her in the news.

A June 7 post reads in part, “I started this year super excited and happy and flexible and hopeful. Then I got a particularly malicious group of students (again, no, not ALL of them, but evidently enough to strip the lustre from the positive feelings above) who decided to make it their business to try to ruin me.”

And a post from July 19 slams the Central Bucks School District’s recently approved contract with its teachers.

Munroe pointedly criticized a new proviso under which teachers would be terminated if they received two “unsatisfactory” ratings on their annual reviews.

“It seems like an awfully easy way to save money if there's a district shortfall, or to get rid of teachers who are at the top of the pay scale (or who are thorns in the district's sides),” Munroe wrote.

Munroe's old blog had about nine followers. Her new one?

664. And counting. Click LINK for all 400+comments

COMMENTS (420)