The NEW
YORK STATE
SCHOOL BOARDS ASSOCIATION
presents
Legal Update- A Recap
of Selected New Laws,
Regulations & Cases
Pilar Sokol and Kimberly A. Fanniff
The Education Transformation Act
• Probationary Appointments and Tenure –
pp. 1-3
• New APPR System – pp. 3-14
• School Receivership – pp. 14-33
• §3020-a Changes / New §3020-b – pp. 33-37
The Education Transformation Act
(cont’d)
• Probationary Appointments and Tenure –
pp. 1-3
– Background Overview
New probationary term
Shortened probationary periods
Extension of probationary terms
Tenure determinations
The Education Transformation Act
(cont’d)
• Probationary Appointments and Tenure –
pp. 1-3
– Recent Regulatory Amendments
Expiration date on appointment resolution
Ending probation of staff still under
§3012-c
The Education Transformation Act
(cont’d)
• New APPR System – pp. 3-14
– Background Overview
Temporary dual system
Basic comparison of §§3012-c and 3012-d
Prohibited evaluation elements
Student assignment to ineffective teachers
The Education Transformation Act
(cont’d)
• New APPR System – pp. 3-14
– Recent Regulatory Amendments
Independent evaluator waivers
Appeal of state-provided growth scores
The Education Transformation Act
(cont’d)
• School Receivership – pp. 14-33
– Background Overview
Designation criteria
Types of receivership
Receiver’s authority
• Employment decisions
• Elimination of positions
Collective bargaining
The Education Transformation Act
(cont’d)
• School Receivership – pp. 14-33
– Recent Regulatory Amendment
Clarification regarding collective
bargaining
The Education Transformation Act
(cont’d)
• §3020-a Changes and a New §3020-b – pp.
33-37
– Hearing procedures and penalty decisions
Hearing officers
Reciprocal discovery
Student witnesses
Misconduct involving abuse of students
Penalty determinations
The Education Transformation Act
(cont’d)
• §3020-a Changes and a New §3020-b – pp.
33-37
– New expedited hearings for removal of
ineffective teachers and principals
 Criteria
Procedures
Legal standards
Other New Statutory Changes
• Special Education – p. 42
– Use of school psychologists v. licensed psychologists
for preschooler evaluations
• Certificate Registration – p. 43
– Five year registration cycle for holders of classroom
teaching service certificates, teaching assistant
certificates, and educational leadership certificates
that are valid for life.
Other New Statutory Changes
(cont’d)
• Continuing Education – p. 44
– 100 hours of continuing education every five years if:
• Professional certificate in classroom teaching
service
• Level III teaching assistant certificate, or
• Professional certificate in the educational
leadership service
• Teacher Certificate Revocation – p. 44
– New Grounds
Bills Awaiting Action by
the Governor
• Employment Discrimination – p. 48
– Familial Status
– Pregnancy-related Conditions
Treatment as temporary disability
Definition
Reasonable accommodations
New State Regulatory Changes
• Coaches – p. 52
– Training on child abuse reporting
• Professional Development – p. 54
– Language acquisition by ELL students
Teachers and administrators
Level III teaching assistants
– Available annual exemption
New State Regulatory Changes
(cont’d)
• Opioid Antagonist Administration – pp. 6162
– Applicability of Public Health Law §3309
School district/BOCES participation in
overdose prevention program
Employee participation and training
Exemption from liability
Selected Cases
Cronk v. King p.1
• Cronk challenged her termination when English
position abolished and board determined she had no
seniority in her appointed tenure area as she never
taught English, only taught computer classes
– Commissioner’s regulation preserves teacher’s seniority rights
when he or she is transferred to an out-of-area assignment
without his/her prior written consent.
• Court ruled a teacher does not need to actually serve in
assigned tenure area prior to earning the right to
consent to an out-of-area assignment.
– Overturned Cronk’s dismissal
Appeal of Alexander and Gonzales p.1
• Tenure areas fixed at time of appointment cannot be
changed retroactively
– Probationary appointments= assistant principal
– Tenure award = elementary assistant principal
• Board failed to show petitioners alerted at time of
appointment or later consented to change in tenure area
after appointment.
– Positions abolished in elementary assistant principal tenure
area and petitioners did not serve in that area thus
commissioner ordered reinstatement
Regini v. Bd. of Educ. Bronxville UFSD p.2
• Regini, an excessed Spanish teacher challenged district
failure to recall her from preferred eligible list for full
time position equally split between French and Spanish
• 2nd Dep’t held absent appropriate certification reemployment rights cannot attach
– Regini not certified in French thus not entitled to position
– Failed to challenged creation of 1 full time position versus 2
part time
Kwasnik v. King p.3
• Kwasnik previously tenured as English teacher but
“resigned” and accepted new position as library media
specialist in same district
• 3rd Dep’t held Kwasnik did not take “affirmative steps
to terminate all aspects of employment” and was
entitled to exert bumping rights to return to English
position when her LMS position was abolished.
– Overturned decision of commissioner holding the
opposite
Brown v. Bd. of Educ. of Mahopac CSD p.3
• Recalculation of teacher’s probationary period after
unpaid leave of absence must be performed utilizing
workday to calendar day methodology
– Each workday missed extends teacher’s probationary period
by corresponding number of calendar days
• Side agreement with union negotiated by
superintendent was enforceable even without approval
by school board
– Superintendent authorized under Education and Taylor Laws
to enter agreement pertaining to maintenance of personnel
files
Mazzella v. Bedford CSD p.4
• Expedited 3020-a hearing after 2 consecutive
ineffective APPR ratings
• Terminated by hearing officer- credible evidence
lessons were teacher-centered and failed to improve
despite weekly coaching
• Court upheld termination
– 2 ineffective ratings constitute “very significant evidence of
incompetence”
– Other evidence Mazzella failed to engage students & design
effective lesson plans
Mehler v. Rye City School Dist. p. 5
• A teacher suspected of testing irregularities who was
administratively reassigned in May 2013 sued for
deprivation of protected interests without due process
– Cannot maintain claim for deprivation of property interest as
long as continue to be paid
– Reassignment permissible if work bears reasonable
relationship to teacher’s competence and training and
consistent with dignity of profession
– Liberty interest in directing daughter’s education does not
give plaintiff right to access school property or her daughter’s
teachers
Koutros v. Dep’t of Educ. of City of NY p.6
• A tenured teacher terminated without a
hearing because he failed to hold valid
teaching certificate challenged his dismissal
as violating his rights under §3020-a.
• Court concluded not entitled to hearing
because termination for failing to maintain
minimum qualifications, and not for
disciplinary reasons.
Appeal of Guzinski p. 6
• Physical education teacher appealed claiming
district assigned him teaching load in excess of
150 students without justification
• Commissioner -Does particular assignment preclude
effective teaching?
• Situation result of complex high school scheduling and
need for students to be scheduled for science labs
• No assessments, testing or homework required for PE
• Assigned workload did not preclude effective instruction
and students not adversely affected
Tolbert v. Smith p.6
• African- American teacher denied tenure may proceed with
racial discrimination claims
– Denial of tenure coupled with offer of Juul agreement still
equals denial of material improvement to employment
condition
– Teacher not required to show principal made any statement
declaring tenure decision tied to race
– Impermissible bias of single individual at any state of
promoting process may taint ultimate employment decision
even absent evidence of bias on part of ultimate decision
maker provided impermissible bias played meaningful role in
promotion process
Chiara v. Town of New Castle p.8
• Discharged employee sued for religious discrimination
based upon co-workers anti-Semitic remarks regarding
the religion of his spouse
– Employer argued claim must fail since plaintiff himself not
Jewish
• Plaintiff sufficiently demonstrated membership in
protected class based upon marriage to a Jewish person
and raised question of fact whether discharge occurred
under circumstances giving rise to inference of
discrimination
Rollins v. Fencers Club p.8
• Plaintiff’s discharge occurred under
circumstances giving rise to inference of age
discrimination
• Board member remarks about plaintiff’s age
reflected age related bias
– Fact that several board members involved in
decision to terminate plaintiff were close to her in
age did not eliminate discriminatory animus
Dempsey v. NYC Dep’t of Ed. p.8
• NYC denied employment clearance to bus driver based
on prior drug convictions.
– Convictions made unsuitable for close supervision of
children in relatively unsupervised bus environment
• Ct of Appeals found decision to deny clearance not
arbitrary and capricious
• Certificate of relief from disabilities does not create
entitlement to license or employment
– Drug offenses particularly sensitive to school employer
– Mature age at time of most recent convictions also a factor
Tipaldo v. Lynn p.9
• Plaintiff made good faith effort to comply with
reporting requirements for whistleblowers and was
entitled to protections under Civil Service Law 75-b
– Strict compliance with law would not serve purpose of statute
– Practical inability to report wrongdoing to the wrongdoers
themselves needs to be considered
• Plaintiff entitled to pre-judgment interest on back pay,
benefits, consequential damages award.
– Intent of law to make employee whole
Davis v. NYC DOE p. 10
• Plaintiff failed to establish discriminatory
intent to reduction in her bonus award
– Plaintiff absent 4 months and during that time
did not contribute to school’s efforts to earn
bonus
– Substitute teacher did contribute to efforts to
earn bonus and deserved share of bonus pool
East Meadow Teachers Assoc. v. East Meadow UFSD
• PERB held district did not engage in retaliatory activity
by bringing disciplinary charges against 4 teachers
engaging in disruptive picketing activities
– Parked cars along both sides of street in front of school
creating safety hazard for students being dropped off
– Leafletting by standing at end of school driveway and waving
leaflets to get drivers’ attention
– Parked cars to block access to driving lane designated by
traffic cones for student drop off
• Transfer of union bldg. president to another school permissible
because legitimate nondiscriminatory reason
SEIU v. Utica City School Dist.
p.17
• PERB ruled names, addresses and telephone numbers
of unit members are presumed relevant to union’s role
as bargaining agent
– Union general right to demand and receive information to
enable it to exercise rights under Taylor Law (subject to limits
of reasonableness, relevancy and necessity)
– Union did not need to explain need and relevance of this
information (self-evident)
– Providing information would not violate privacy rights of
employees
• Ordered district to provide information
United Teachers of Seaford v. Seaford UFSD p.18
• Unilateral transfer of duties previously performed by
department chairpersons at high school to non unit
administrators was improper practice
– Discernable boundary between work of chairpersons and
administrators
– Chairpersons’ tasks were “discreet departmental function”
district facilitated by reducing teaching workload of
chairpersons and paying separately negotiated salary for those
tasks
Orchard Park School Related Professionals
Ass’n v. Orchard Park CSD p. 19
• Unilateral change to custodians work week permissible
under school district’s right retained in CBA
– Clauses in CBA maintained that board & superintendent were
“solely responsible for the operation and control of the
district and its personnel… All terms and conditions of
employment not covered by this Agreement shall continue to
be subject to the discretion and control of the District.”
– Selection, recruitment, hiring…assignment, and transfer as
well as the direction, deployment and utilization of staff are
rights reserved to management.
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