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
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Significant
developments
 the courts
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Amendments to
 statute
 regulations
 arbitrators
 PERB
 Commissioner of
Education
 State guidance
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Is a tenured teacher’s right to “confront witnesses
against her” violated by her exclusion from her §3020a 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.
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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.
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 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.
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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.
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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.”
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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:
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 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.
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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.
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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.
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One teacher appealed in one case, and the district
appealed in the other.
 In remanding on the issue of penalty, the Appellate
Division noted:
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 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.
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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).
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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.
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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).
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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).
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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:
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 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.
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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.
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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.
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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.
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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.
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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.”
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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.
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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.
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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 SagalCotler v. BOE of the City of New York, 20 N.Y.
3d 671 (2013) said YES.
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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?”

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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?
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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.
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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.

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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.
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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.
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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.
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 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.
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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.

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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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?
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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.
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 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.”
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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.
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On appeal, 2nd Circuit reversed.
Regulation does not violate the church’s freeexercise 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.
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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).

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In Town of Greece, N.Y. v. Galloway, ___ S. Ct.
___, May 5, 2014, the U.S. Supreme Court
upheld the practice of a town board in opening
its monthly board meetings with a sectarian
prayer.
Court noted that the ceremonial prayers
delivered in the town were consistent with prior
judicial precedent which permits legislative
prayer and with the tradition of such practice.
The prayers were “meant to lend gravity to the
occasion and reflect values long part of the
nation’s heritage.
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Court found that the town maintained a policy of nondiscrimination and made reasonable efforts to invite all
faiths to participate. The fact that nearly all congregations
in town were Christian did not require the town to search
beyond its borders.
 Court further held that there was no requirement for the
prayer to be non-sectarian.
 Prayer, however, is not without limits. If solemn and
respectful, for purpose of reflecting on common ends –
permissible. If, invocations are exploited to “denigrate
nonbelievers or religious minorities, threaten damnation or
preach conversion” – problematic.
 Decision may pave the way for school boards to adopt such
a practice.
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On November 13, 2013 a suit was filed by 12
NYC public school parents in Supreme Court,
Albany County, against SED, the
Commissioner and the Regents to prevent
them from releasing any personal student
information to inBloom.
Claim: Disclosure of a child’s personally
identifiable data without parent consent
violates New York’s Personal Privacy
Protection Law.
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Petitioner’s initial request for a TRO was denied.
While the decision was pending, on or about January 9, 2014,
SED announced data upload to inBloom had been delayed
until April due to “technical reasons.” Coincidence?
By decision dated February 5, 2014, the Court dismissed the
parents’ petition:
 Disclosure by SED of personally identifiable student info is authorized
by Personal Privacy Protection Law.
 There was a reasonable basis for the decision to enter into the
agreement with inBloom and that disclosure and transfer of data will
be for a legitimate purpose.
 Since disclosure is permitted by law, SED does not need parents’
permission to disclose student information to inBloom.
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“Common Core Implementation Reform Act” enacted as part of
the 2014-15 State Budget (Ch. 56 of the Laws of 2014 Part AA).
 Commissioner and SED are prohibited from providing any “student
information” to a Shared Learning Infrastructure Service Provider
SLISP (i.e., inBloom) and must take immediate steps to ensure that
any information provided is deleted and destroyed.
 Note: The Act adopts the FERPA definition of “personally
identifiable information”, but also includes a broader definition
of “student information”, which includes not only personally
identifiable information, but also “any other individual student
records and shall also include de-identifiable information which
means a collection of data or information that has been altered
with the goal of making the student or students associated with
such data or information permanently unknowable.”
 Effectively ends SED’s relationship with inBloom.
 SED may, however, contract with a BOCES to develop educational
data system tools.

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Following adoption of State Budget, inBloom
announced it will close.
Effective immediately, school districts can optout of providing personally identifiable info, as
defined in FERPA, to a SLISP (like inBloom), or a
third-party dashboard operator.
Districts can ask, at any time, that its personally
identifiable information not be shared with a
SLISP or dashboard operator.
SED must then take all action necessary to
prevent/prohibit sharing and delete/destroy any
such info already held by either.
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Amends Education Law §3602-e(15) and adds §305(44);
effective immediately.
 Prohibits districts from administering “traditional
standardized tests” in pre-K and K-2; except that:
assessments that require students to perform real-world
tasks that demonstrate application of knowledge and skills,
or are required by federal law, can still be administered.
 Commissioner is required define “traditional standardized
tests” in regulations.
 Does not supersede any CBA provisions pertaining to APPR
entered into prior to the effective date, which roll over
until a subsequent plan or amendment is agreed to by the
parties and approved by the Commissioner.

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Amends Education Law §305 by adding new
subdivisions (45) and (46).
Prohibits districts from placing State
Standardized test scores for ELA or math grades
3-8 on a student transcript or in a permanent
student record.
When the 3-8 test scores are sent to parents,
they must include a plain and conspicuous notice
that the grades are being provided only for
diagnostic purposes and will not be included on
transcript or permanent record.
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Amends Education Law §305 by adding new
subdivision (47).
Districts cannot use test scores on the 3-8 ELA
and Math assessments as the sole or primary
factor for placement or promotion decisions, but
can consider scores as one of several multiple
measures.
Districts must annually notify parents of grade
promotion and placement policies and how
developed. Notice may be given on website or in
an existing informational document.
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Amends Education Law §305 by adding a new
subdivision (49).
 As of July 1, 2014, the Act limits the amount of time
districts may devote to administering required State
assessments to an amount not exceeding, in the
aggregate, 1% of the minimum required annual
instructional hours for each grade.
 In addition, the Act limits the amount of time districts
may devote to standardized tests that are not
specifically required by State or federal law to an
amount not exceeding, in the aggregate, 1% of the
minimum required annual instructional hours for each
grade.

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The amount of time spent devoted to test
preparation under standardized testing
conditions for each grade cannot exceed, in the
aggregate, 2% of the minimum required annual
instructional hours for each grade.
Time on teacher administered classroom exams,
quizzes, portfolio reviews or performance
assessments do not count toward these limits.
Commissioner directed to issue regulations
necessary to ensure these limitations.
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Amends Education Law §3012-c(2) by adding
new paragraphs (k-1) and (k-2) to require the
Commissioner to review an APPR Plan within 10
business days of submission if the material
change is related solely to the elimination of
standardized tests.
 Commissioner can review only the “changed”
parts of the Plan.
 School board must explain and submit material
changes on a form prescribed by the
Commissioner and certify that no other material
changes have been made.

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In February and March 2014, the Regents adopted
emergency regulations to make certain adjustments to
Common Core implementation and APPR.
 In May 2014, the Regents made additional changes to the
regulations to reflect the new Common Core
Implementation Reform Act.
 Effective 3/2/14, all traditional standardized assessments
for students in grades K-2 to be removed from the list of
approved student assessments for K-2 students for use in
APPR Plans for 2014-15 and after.

 Any district/BOCES with an approved APPR Plan for use in 2013-
14 that uses such assessments will stay in effect under the
rollover provisions of §3012-c(2)(1) and the district/BOCES can
continue to use those assessments until a material change is
made and approved by the Commissioner to eliminate such use.
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 Commissioner must conduct an expedited review
within 10 business day of submission of any
material changes to an APPR Plan that relate solely
to the elimination of unnecessary assessments of
students. The Commissioner will review only
those parts of the Plan that relate to those
assessments. Districts will be required to submit
the changes on a prescribed form and certify that
no other changes have been made.
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 All APPR Plans submitted to the Commissioner after
3/2/14 for use in 2014-15 or after must certify:
▪ The amount of time devoted to traditional standardized
assessments that are not specifically required by state or
federal law for each classroom or program of the grade does
not exceed, in the aggregate, 1% of the minimum in required
annual instructional hours for such classroom or program of
the grade; and
▪ The amount of time devoted to test preparation under
standardized testing conditions for each grade does not
exceed, in the aggregate, 2% of the minimum required annual
instructional hours for such grade.
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 Remove 6th-8th grade social studies and 6th-7th grade science
from the definition of “core subjects” for the State Growth or
“other comparable measures” subcomponent to give districts
flexibility to use a school-wide, group or team measure.
 Prohibit the Commissioner from approving any APPR Plan for
use in 2014-15 or later that provides for standardized tests to
students in K-2 (except for diagnostic purposes or as required by
federal law).
 Commissioner’s regulations include a definition of “traditional
standardized assessments” and examples of what are/are not
“traditional standardized assessments.”
 Commissioner’s regulations also incorporate Act’s Prohibition on
use of 3-8 tests for grade placement or promotion and inclusion
in official transcript/record.
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Amends Education Law §305 to add §305(50) and
§305(51).
 Requires the Commissioner to provide instructional
tools and outreach materials to parents/families to
assist them in understanding the purposes, elements
and instructional changes relating to the Common
Core, and how to support their child’s outcomes.
 Requires the Commissioner to develop professional
development tools, resources, and materials that
districts can use to develop Common Core training
programs for teachers and principals.

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Adds a new §2-d to the Education Law.
Commissioner required to appoint a Chief Privacy
Officer (“CPO”) within SED for a 3-year, renewable
term.
 CPO charged with a non-exhaustive list of 7 functions
and given the powers to implement them.
 CPO must make available to public an inventory and
understandable description of the student, teacher
and principal data elements collected with an
explanation and/or legal regulatory authority outlining
the reasons these elements are collected and the
intended uses and disclosure of the data.

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Unless the law provides otherwise, SED can only
collect personally identifiable information that
relates to an educational purpose and can only
require districts to submit such information
where law requires it or FERPA allows it.
Districts may not report juvenile delinquency
records, criminal records, medical and health
records, and student biometric information to
SED unless law requires it or unless it is
“educational enrollment data.”
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Personally identifiable info. may not be sold or used for
marketing purposes.
 Commissioner, with CPO, must enact regulations that
establish standards for data security and privacy policies.
 Contracts between districts and third parties must include
a confidentiality requirement that the shared student,
teacher or principal data be maintained consistent with
law and policy.
 Any contract that implicates personally identifiable data
must include a data security and privacy plan outlining how
the contractor will implement federal, state and local
security requirements during the period of the contract.

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
Third party contractors that receive student, teacher,
or principal data are required to:
 Limit internal access to individuals with legitimate

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educational interests.
Use the records only for the purposes explicitly authorized
in the contract.
Not disclose info to any other party without prior written
parental consent, unless required by statute or court order.
Maintain reasonable safeguards to maintain confidentiality.
Use encryption technology to protect data from
unauthorized disclosure while in motion or in its custody.
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Where security is breached, contractor must
notify the district “in the most expedient way
possible” and without unreasonable delay;
district must notify parent (same schedule as
above).
If teacher or principal data is released (breached)
from the APPR, district must notify
teacher/principal (same schedule as above).
Contractor must promptly reimburse the district
for the full cost of notifications.
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District must also report release to CPO.
If CPO believes release is criminal, CPO must report to law enforcement
(on same schedule as previous slide).
A range of graduated civil penalties is provided in the law for
unauthorized releases.
Where CPO determines, after opportunity to be heard, that a contractor
has committed an unauthorized release, the CPO may:
 Preclude the contractor from accessing data from that district for up to
5 years;
 If action was knowing or reckless, preclude the contractor from
accessing data from any district for up to 5 years;
 If action was knowing or reckless, deem the contractor to not be a
responsible bidder for up to 5 years on any contract involving data
access with any district;
 Require the contractor to provide training at its expense to all
employees with access to such data, prior to being given further
access; and
 If action is determined to be without intent, knowledge, recklessness
or gross negligence, impose no penalty.
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Each district must publish a “Parents Bill of Rights” on its
website and include it in all contracts entered into with
contractors that involve data receipt.
 BOR must state that:

 Student data cannot be released/sold for commercial purposes;
 Parents have the right to inspect and review complete contents
of their child’s educational file;
 State and federal law protects confidentiality of data and
firewalls, encryption, etc. are in use by the district;
 A list of all student data elements collected by the State is
available for review; and
 Parental complaints regarding data will be addressed by [name
and title and contact info of designated individual].
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
BOR must also supplement information for each contract it
enters into with a contractor that receives confidential
data, including:

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
The exclusive purpose for which the data will be used;
How the contractor will ensure confidentiality;
What happens to data upon the expiration of the contract;
If and how the parent can challenge the accuracy of the data
collected;
 Where the data will be stored and the security protections
taken; and
 Any other elements developed by the CPO with input from
parents and stakeholders.
▪ To receive input, the Commissioner must promulgate regulations for
comment to the CPO.
 BOR to be completed before July 30, 2014.
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Upon and to the extent allowed by any federal waiver
issued by USDE, amends Education Law §305 by adding
§305(48).
 Allowing SWDs who are not eligible for the NYS alternate
assessment, and whose cognitive/intellectual disabilities
preclude meaningful participation in chronological grade
level instruction, to be assessed based on instructional
level rather than chronological age.
 ELLs to be assessed with a State-administered allowing
assessment that measures English Language development,
rather than by the ELA exam for their first two years of
enrollment.
 Upon the approval of any federal waiver issued by USDE,
requires the Commissioner to develop regulations.

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Amends NY Tax Law §606(bbb).
Designed to incentivize local governments to
share services and reduce their financial burden
on the taxpayer.
 Gov. Cuomo says it will have the effect of
“freezing” property taxes.
 Ties to the “tax levy cap” - if a school district’s
budget is within the cap (a maximum of 2% or
the rate of inflation, whichever is less) the
budget is considered to be a “freeze compliant
budget.”
 Not applicable to the Big 5.

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Eligible taxpayers whose primary residences are
located in school districts with freeze-compliant
budgets will receive a personal income tax credit
for the 2014-15 taxable years.
 Statute contains formulae for the amount of tax
credit that will be provided.
 Credit is available in FY 2015 only if the district
stays within the cap and has a state-approved
“government efficiency plan” in place.

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The plan must “demonstrate 3 years’ savings and efficiencies of at
least 1% per year from shared services, cooperation agreements
and/or mergers or efficiencies over the…2014-15 school year tax levy.”
 Education Law §2023-b(1)(b) and (f) provides that “cooperation
agreements” and Shared Services” may include procurement, real
estate and facility management, fleet management, business and
financial services, administrative services, payroll administration, time
and attendance, benefits administration, other transactional HR
functions, contract management, grants management, transportation
services, facilities and functions, human services facilities and
functions, customer service facilities and functions and information
technology infrastructure, processes, services and functions.
 Plan must be submitted to the Director of DOB by 6/1/15.
 The school superintendent must certify to the Commissioner of
Taxation that the district is within the cap in order for residents to be
eligible.
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Adds Education Law §3602-ee to establish a
statewide universal full-day pre-kindergarten
program. Allocates $340 million of which $300
million is dedicated to NYC. Pre-K to be funded
through grants awarded by SED.
Budget appropriates $10 million for the
establishment of a teacher excellence fund for
awards of up to $20,000 for teachers rated Highly
Effective under APPR pursuant to a locally
negotiated agreement.
Amends Education Law §2851(2)(t) to require that,
upon the dissolution of a charter school, any public
funds still in the custody of the school, after debts and
obligations have been paid, shall be paid over to each
school district having resident children served by the
charter school in the year of dissolution, or the last
year in which students were enrolled, in an amount
proportionate to the number of students placed by
each district and served in the last school year as
compared to the total charter school population.
 Inapplicable to funds attributed to gifts, donations,
grants or other charitable contributions.

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In the final hours of this year’s legislative session,
the State Legislature passed a bill (A.10168)
which is reportedly intended to mitigate any
negative consequences to classroom teachers
and building principals whose APPR ratings were
affected by the transition to the Common Core.
The legislation applies to any classroom teacher
or building principal rated as Developing (“D”) or
Ineffective (“I”) for the 2013-14 and/or 2014-15
school years where their APPR was based on
State Assessments aligned to the Common Core
(i.e. the 3-8 ELA and/or Math State tests).
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
The legislation prescribes a re-calculation
methodology for any teacher or principal rated
as D or I for the 2013-14 and/or 2014-15 school
years only, to exclude any portions of their APPR
that relied, in whole or in part, on the State’s 3-8
ELA and/or Math assessments (e.g. if both the
20% growth and 20% local measures are based
entirely on the 3-8 ELA/Math tests the remaining
60% is “scaled up” such that it accounts for the
entire 100% of the evaluation).
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Legislation restricts the use of an original D or I
rating for such teachers or principals where the
re-calculation methodology would have resulted
in a higher rating for the teacher or principal.
 In such case, the original D or I rating “shall not
apply” to employment decisions, including
termination, the grant or denial of tenure,
expedited hearings under §3020-a, or retention
decisions.
 There is no restriction if the re-calculation does
not improve the teacher’s or principal’s D or I
rating.

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In addition, the original rating of D or I shall not
be used for purposes of the requirement for a
teacher or principal improvement plan (TIP/PIP)
but rather the re-calculated “designation” shall
be used for such purpose.
With respect to disclosure to parents under
Education Law §3012-c(10)(b), the legislation
requires that both the original APPR rating and
the “designation” pursuant to the re-calculation
methodology shall be reported with an
explanation of such additional designation.
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
What, if anything, can be done with an employee who
receives a “safety net” re-calculation?

Notably, the legislation states “… that nothing … [in the
legislation] shall be construed to prevent the use for
the purposes … [of the employment decisions noted
above] of the observations, local assessments or other
measures of the performance of the teacher or
principal other than their rating or a state assessment
aligned with the common core, whether or not they
were included in an … [APPR].”
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Education Law §3012-c(1) and the Rules of the Board of
Regents state that “[n]othing … shall be construed to affect
the statutory right of a school district or BOCES to
terminate a probationary teacher or principal for
statutorily and constitutionally permissible reasons other
than the performance of the teacher or principal in the
classroom or school, including but not limited to
misconduct.” See also Education Law §3012-c(5)(b).
 The amendment clarifies that the term “performance” as
used in Education Law §3012-c(1) and in the Rules of the
Board of Regents references the teacher’s or principal’s
performance on the APPR measured by their overall
composite rating.

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
SED Updated Guidance posted July 1, 2014.

APPR Guidance now 165 pages long!

Note updates to Q and As re: termination of
probationary teachers (C11-15) and appeals
(K5); new assessment and certification
requirements (C38-C47); and APPR “Safety
Net” (new Section Q).
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In Appeal of Gordon, 53 Ed Dept Rep, Decision No.
16,582 (December 20, 2013), the Commissioner
clarified the rules regarding the calculation of the 30day time period for bringing an appeal in abolition
cases.
 Where a teacher claims that his services have been
discontinued in violation of the excessing rules in
Education Law 2510(2) and 3013(2) because he or she
is not the least senior employee in the tenure area, the
30-day time period for commencing a 310 appeal
begins on the effective date of the abolition of the
position. Prior contrary opinions expressly overruled.

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
On the other hand, where the wrong alleged by the
teacher is not that he or she should have been
retained because he or she was more senior, but
rather that the appointment of another teacher was in
violation of law and the excessed teacher’s rights, a
310 appeal is timely if brought within 30 days of the
date on which the other teacher commenced service
in a position to which the excessed teacher claims he
or she is entitled (e.g. in a case where the excessed
teacher claims that the district has created a new
position to which he or she is entitled or a claim that
he or she is entitled to reinstatement to the position
from a PEL).
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Effective May 14, 2014, the Commissioner’s regulations (8
NYCRR 102.4) were amended to require all school district
and BOCES employees to report to SED “testing
misconduct” on State assessments by a certified educator
or any known conduct by a non-certified individual
involved in the handling, administration or scoring of state
assessments where that conduct might reasonably be
considered a violation of Education Law 225 (which
prohibits unlawful acts with respect to exams such as
selling exam questions and answers).
 Regulations contain a non-exhaustive list of 11 types of
actions or omissions that constitute “testing misconduct.”

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Testing misconduct, assisting in the engagement
of, or soliciting another to engage in testing
misconduct and/or the knowing failure by a
certified employee to report testing misconduct
is deemed to raise a reasonable question of
moral character under Part 83.
 Regulations include anti-retaliation provisions
that prohibit school districts and BOCES from
taking adverse action against “whistleblowers.”

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
Effective February 1, 2014, Commissioner’s
regulations (200.1, 200.5 and 200.16) amended
to address:
 certification and appointment of IHOs;
 consolidation of multiple due process complaints for
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the same student;
decisions of the IHO;
the timeline for IHO to render decision;
extensions of the timelines for an impartial hearing;
the impartial hearing record; and
withdrawl of a due process complaint notice.
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

Regulations intended to ensure that impartial
hearings held in a more efficient and effective
manner and to address certain deficiencies in
the hearing procedures.
In February and May 2014, SED issued
Guidance and Questions and Answers
regarding the new regulations. See
http://www.p12.nysed.gov/specialed/duepro
cess/home.html
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Issued on 11/15/13 and updated on 4/11/14 re:
elopement of students with disabilities.
 CSEs and CPSEs should assess whether students
are susceptible to wandering/elopement.
 If determination is that child is likely to elope, the
committee must “ensure that a functional
behavioral assessment is conducted and that the
behavior is addressed through proper
supervision and through an individualized
behavior intervention plan based on the results
of the FBA.

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
Suggested policies/procedures to prevent wandering/elopement to incorporate into the school
safety building plan:
 Staff training on awareness and response.
 Supervisory notification and 911 calls.
 Communication protocols with local police.
 Use of school-wide communication and alert systems.
 Pre-assignments for building and ground searches.
 Procedures for assuring that crisis response and law enforcement officials have access to floor
plans, blueprints, etc.
 Immediate family notification.
 ID students with known elopement behaviors to principals, hall monitors and security guards.
 Consider installation of door alarms.
 Ensure students with elopement behaviors carry basic ID at all times.
 When school personnel becomes aware of a concern about a child’s behavior re: wandering,
he/she should immediately report to supervisory staff and others working directly with the
student.
 When a behavioral concern is raised that was not considered by the CSE, the teacher or other
staff should use appropriate discretion to request a CSE meeting to review, and if appropriate,
revise the IEP.
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Kathy A. Ahearn, Esq.
Erin M. O’Grady-Parent, Esq.
24 Century Hill Drive
Latham, NY 12110
(518) 690-7000
77 Conklin Street
Farmingdale, NY 11735
(516) 694-3000
196027
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