HSLSD Blog

Can a School Enact another School District’s Punishment?

March 3rd, 2010

It has come to my attention that there is a legal interpretation regarding the Commissioner’s opinion in Appeal of a Student with a Disability from the Actions of the Boards of Education of Franklin Central School District and the Susquehanna Valley Central School District regarding student discipline. No. 16,002

www.counsel.nysed.gov/Decisions/volume49/d16002.htm

which permits one district to enact another district’s student discipline by conducting a second Superintendent’s hearing. My understanding of this case as one of the attorneys directly involved is that the Commissioner has said the only way the second school district may follow the first school district’s punishment is when the student committed an act which violated the first school district’s code of conduct. Practically speaking, this almost never happens.

The real issue here is jurisdiction. A school district’s code of conduct only covers activities on campus or at that district’s events. A student may only be disciplined for off campus conduct when that student’s activities disrupt the educational environment on campus. The same is true for enacting punishment assessed by a prior school district.

To enact discipline which was assessed by conduct occurring while the student was enrolled in another school district, that conduct would have needed to disrupt the educational environment of the admitting school district and thus violate the code of conduct. For example, if a student has marijuana on the property of School A, School A may conduct a superintendent’s hearing. However, if the student subsequently enrolls in School B, School B must show that student A’s action of possessing marijuana on the property of School B violated School B’s code of conduct. Such a code of conduct violation must either because by significant disruption of the educational process due to the student’s possession on School A’s property. Simple enrollment of the student is not disruption.

Another way to examine the problem is that New York State and Pennsylvania both prohibit speeding. If I am speeding in New York State, I have violated New York State laws and they can issue me a ticket. If I then move to Pennsylvania and drive only at lawful speeds, can Pennsylvania issue me a ticket for speeding in New York State? The answer is clearly no. Pennsylvania does not have jurisdiction. The same is true for the District enrolling a student who engaged in misconduct in a prior school district.

Posted in All Posts, Wendy K. DeWind | Comments Off

Voting machines-What’s really going on?

February 24th, 2010

In response to the enactment of the federal law known as the Help America Vote Act, the New York State Legislature prohibited the use of lever voting machines in elections administered by the Board of Elections. The law became effective in 2007 and applied to elections conducted under the jurisdiction of the Board of Elections held on or after November 2009.

Keep in mind that the Board of Elections has no jurisdiction in the conduct of school district elections. As a result, the legislation concerning the elimination of lever voting machines does not apply to public school districts. School districts may continue to use lever voting machines for the conduct of school district elections. Here is the last memorandum from the State Education Department on the subject: http://www.counsel.nysed.gov/memos/voting.html

Some school districts do not own lever machines. The districts borrow or lease lever machines from the county board of elections or from the town or village in which the school district is located. For those districts, there are several questions. Are the lever machines still available? Will the owner let the district borrow or lease them? If the lever machines are no longer available, will the owner permit the district to borrow or lease a new optical reader machine? We recommend checking for the answers to these questions well in advance of the May vote.

Finally, if voting machines are no longer available, the Education Law permits voting by paper ballot.

Posted in All Posts, John P. Lynch | Comments Off

Late Notice Equals Pay Even During Summer Vacation

February 17th, 2010

On Thursday February 11, 2010, New York’s Highest Court rendered a decision in regard to NYS Education Law §3019. In the Matter of David S. Vetter vs. BOE, Ravena-Coeymans-Selkirk CSD, the Court upheld a prior decision and held that a board of education must pay a day’s wages for each day that notice in accordance Education Law § 3019 is late. The Court further held that this applies even if the days fall within the summer vacation when the teacher would not otherwise receive wages.

In the Vetter case, the Board of education voted on June 21, 2006 to terminate the probationary teacher effective July 21, 2006. However, the BOE failed to provide notice of this vote to the teacher until 28 days later. The teacher sued the district seeking the 28 days of salary due to the BOE’s failure to adhere to NY Education Law §3019-a; a name clearing hearing; and counsel fees. The lower court denied the petitioners §3019-a claim but did award the petitioner counsel fees. On appeal, the appellate court reversed the award of counsel fees but upheld the courts decision in regard to §3019-a. The Appellate Court reasoned that the teacher was not entitled to the 28 days of pay because those days fell within the summer vacation when he would not have otherwise received compensation. The teacher appealed and New York’s highest court ruled in his favor.

The Court of Appeals upheld the 1993 decision of Matter of Tucker v. BOE, Community School District No. 10 which held that teachers are entitled to “one day’s pay for each day the notice was late.” Just as in Tucker, the Court in Vetter held that it does not matter that the days fall within the summer break and awarded the teacher the 28 days of pay.

In light of the Tucker decision, and most recently the Vetter decision, compliance with the notice provisions of Education Law §3019 must be complied with. Failure to do so subjects the district to monetary liability for a time period it would not otherwise have been responsible for.

Posted in All Posts, Amy J. Lucenti | Comments Off

BOARD OF EDUCATION ACTION ON CSE/CPSE/504 COMMITTEE RECOMMENDATIONS – OPEN MEETING OR EXECUTIVE SESSION?

February 11th, 2010

A recent discussion with a Board member at a Board meeting underscored for me the importance of a Board of Education reviewing and taking action on Committee recommendations regarding disabled students in executive session.

The Board member wanted to abstain from voting on a Committee recommendation because she believed she had a conflict of interest and felt obligated to tell her fellow Board members why she was abstaining. The Committee recommendation involved her disabled child. Fortunately, that Board of Education reviews and acts on Committee recommendations in executive session. The Board member was able to abstain from voting and explain why in the privacy of the executive session. Had this Board taken action on Committee recommendations in the open meeting, the public could infer that the recommendation involved this Board member’s child even if she did not explain why she was abstaining – the Board members voted on 15 recommendations, but this was the only one this Board member abstained from voting on so. . . .

As we have stated in Chapter 15 of Hornbook of Forms Regarding Children with Disabilities, Seventh Edition, under Public Officer’s Law § 100, the Board can adjourn to executive session for certain specified reasons. Although consideration of such Committee recommendations is not included under § 100, § 103 of the Public Officer’s Law states:

nothing contained in this article shall be construed as extending the provisions hereof to:

. . . .

3. Any matter made confidential by federal or state law.

Because of the confidentiality requirements contained in federal laws and regulations such as the Buckley Amendment (Family Educational Rights and Privacy Act), IDEA, and § 504, as well as the State Education Law and Commissioner’s Regulations, we have always advocated that a conservative approach be taken and that the Board of Education should review and take action on Committee recommendations involving disabled students in executive session, not in the open meeting. Our advice is consistent with the opinion of the Committee on Public Access to Records (COPAR), now the Committee on Open Government, which stated many years ago:

Both long-standing State law and the Federal Family Educational Rights and Privacy Act of 1974 provide that student records whether pertaining to a handicapped youngster or to any other youngster, are confidential and, with limited and specified exceptions, may not be disclosed to persons other than parents, the students in certain cases and appropriate school personnel. The Open Meetings Law specified (’ 98) that its provisions shall not apply to “any matter made confidential by federal or state law”.

. . . [A]ll proceedings related to the evaluation or placement of handicapped youngsters are exempt from the Open Meetings Law because they are made confidential by federal and State law. The exemption applies to meetings of the district committee on the handicapped, to any hearing.. . . and to any portion of a meeting of a board of education at which the evaluation or placement of a handicapped youngster is considered or acted upon. 16 Ed. Dept. Rep 457 at 460.

The one exception to not acting in executive session but rather in the open meeting is, as noted by COPAR, where a board of education proposes to contract for the education of a handicapped youngster, the contract must be authorized at an open meeting of the board. However, neither the student’s name nor any other personally identifiable information should be disclosed. Boards may find it convenient to use case numbers.

In addition, Counsel to the Commissioner of Education, Robert Stone, wrote in 1976 the following legal opinion (16 Ed Dept Rep 460):

It is my opinion, in which the Executive Director of COPAR concurs, that all proceedings relating to the evaluation or placement of handicapped youngsters are exempt from the Open Meetings Law because they are made confidential by federal and State law. The exemption applies to meetings of the district committee on the handicapped, to any hearing conducted at the request of a parent or guardian. . . and to any portion of a meeting of a board of education at which the evaluation or placement of a handicapped youngster is considered or acted upon. . . . Boards of education may consider such matters in executive session, and the minutes of any such session should not disclose the name or any other identifying information concerning any handicapped youngster whose case was considered.

Counsel Stone, similar to COPAR, further stated that if a Board of Education proposes to contract for the education of a disabled student, the contract must be authorized in an open meeting of the Board and that neither the student’s name nor any other personally identifiable information should be disclosed. Case numbers may be used.

Because Committee recommendations regarding disabled students are exempt under the Public Officers Law and review and action may take place regarding them in executive session, we firmly believe and advise that a Board of Education should review and act on those recommendations, with the one exception noted above, in executive session. The confidentiality rights of students and parents are protected. School personnel who discuss such recommendations and members of the Board who act on them in executive session are also better protected from claimed violations of breach of confidentiality.

Posted in All Posts, Edward J. Sarzynski | Comments Off

RELEASE OF STUDENTS – SCHOOL’S DUTY OF CARE – SPECIAL DUTY

February 3rd, 2010

Generally speaking, the courts have held that a school district’s duty of care toward a student ends when it relinquishes custody of the student. There are a number of cases decided by the courts where a student has been injured after disembarking from a school bus or leaving the school premises. The courts have consistently indicated that, in general, once a student leaves the custody and control of the school, the school is not liable for any injuries suffered thereafter. However, you should be aware that,. under certain circumstances, a school can be held liable for an injury to a student occurring after the school has relinquished custody of the student.

One exception to the general rule is where the action of the school employee directly contributed to the student’s injury, such as a school bus running over the child. Another exception is where the school releases a student into a potentially hazardous situation.

Another exception to the general rule includes the creation of a special duty by the school. In the Appellate Division case of Wenger v. Godell, et ano, 202 AD 2d (October 26, 1995), 632 NYS 2d, 863, 104 Ed Law Rep 836, a student normally rode the bus home from school. It was alleged that an administrator had promised the student’s father that he would see that the student got a ride on the bus everyday. On the day in question, the student did not get on the bus and was involved in a car accident, as a passenger, shortly after leaving school grounds. The Court indicated that although the school does not ordinarily have a duty to protect the student under these circumstances, because it was alleged that a school administrator had promised the student’s father that the student would be on a bus everyday, a special duty may have been created, and a jury could find the school liable for injuries to the student. There was no obligation on the part of the school Administrator to create a special duty, but the school could be responsible if it assumed a special duty.

We would recommend against any employee making special promises over and above a district’s ordinary obligations and that when school policies include motherhood language, providing for the safety of students, they be carefully drawn and consideration be given as to whether such a policy or procedure will create liability when otherwise there is none.

Posted in All Posts, Michael G. Surowka | Comments Off

Filing a Grievance may be speech, but it’s not Free, says the 2nd Circuit.

January 29th, 2010

On January 27th, 2009, the 2nd Circuit handed down a case with major implications for school districts and other public employers in New York State and the rest of the 2nd Circuit limiting Freedom of Speech by public employees.

The Court found that a teacher who filed a grievance regarding his core duties, in this case maintaining class discipline, was speaking within his official duties. Therefore, applying a recent Supreme Court Decision, Garcetti, the Second Circuit ruled the teacher’s grievance did not have First Amendment Freedom of Speech protection. Weintraub v. Board of Education of the City School District of the City of New York.

In Weintraub, a student threw a book at his teacher. The teacher (the plaintiff, Weintraub) sent the student to the assistant principal, who returned the student to class. The next day the student threw multiple books at Weintraub. The teacher then filed a grievance alleging the principal failed to properly discipline the student and was jeopardizing student safety. Weintraub then alleged that he had suffered intimidation, harassment, and ultimately the loss of his job in retaliation for filing the grievance and sued in Federal Court.

The Second Circuit, however, found that filing a grievance is inherently a form of speech only performed by an employee, as a member of the public can not file a grievance pursuant to a collective bargaining agreement. The Court also found that the topic of the grievance was maintaining student discipline, which the Court further ruled was “a core” teacher job duty.

In light of the above, the Second Circuit stated that under the Supreme Court decision Garcetti v. Ceballos 547 U.S. 410 (2006)

the employee was not speaking as a citizen on a matter of public concern, but as an employee regarding a topic of his employment. Therefore the employee had no First Amendment protection of his speech, and no claim of retaliation by his employer in violation of the First Amendment.

This is the first case applying Garcetti in the 2nd Circuit, and as it occurred in a school district is directly on point for many of our clients. Before public employers in New York start popping champagne, however, it is important to remember that the Court did not address Weintraub’s protection from retaliation for filing a grievance under New York’s Taylor Law. Thus, it would be unwise to go on a firing spree of employee’s who file grievances, as PERB has separate grounds for punishing retaliatory public employers.

Posted in All Posts, James A. Gregory | Comments Off

When is a student a resident?

January 20th, 2010

Which school district can a student attend free of charge? How does a court order of guardianship affect residency? What if the evidence shows the student is not living with the guardian?

Commissioner Steiner issued a decision on October 26, 2009 which addresses some of these concerns. In Appeal of Perry, Decision No. 15,995 , Uniondale Union Free School District got a first hand lesson in residency from our new commissioner. Tiven Perry is grandmother to Chanel Lewis and legal guardian. Perry resides in the Uniondale district. Chanel’s mother lives outside the district.

In May of 2008, Uniondale hired a private investigator to determine where Chanel was living. The investigator conducted surveillance of both residences over a short period of time. Chanel was seen at her mother’s house outside the district six times during school hours. Uniondale determined that Chanel was not a resident despite the grandmother’s guardianship order because Chanel was not living with her grandmother. Chanel’s grandmother presented evidence that she had become sick and could not care for Chanel.

The Commissioner determined Chanel was a resident of Uniondale. He wrote that the surveillance was over a very short period of time and because of that, the grandmother’s evidence that showing Chanel was living with her was sufficient.

The previous Commissioner of Education had stated a few years ago that SED would no longer look into the purpose or facts surrounding a custody order. While this Commissioner reiterated this premise, he also stated that the custody order would be determinative as long as the student was actually living with the guardian and not the parent.

Posted in All Posts, Wendy K. DeWind | Comments Off

Monitoring the District’s Investment Returns.

January 13th, 2010

A recent audit published by the Office of the State Comptroller roundly criticized a former Business Official and a Board of Education for complacency in managing the district’s investments.

During the audit period the district earned $18,000 in interest income through investment. The Comptroller found that if the Board had insisted the former Business Official obtain the best possible yield on district funds as required by the district’s investment policy, the district would have earned an additional $178,000 in interest income.

Keep in mind that school district funds must be held in the very safe investment instruments described in General Municipal Law §§ 10 and 11. Even so, the Comptroller found that the district missed opportunities for much higher returns on investment.

The lesson here is simple. Periods of low interest rates require more active management of funds on deposit. Funds may be apportioned in a number of different kinds of authorized investments to insure maximum return within the bounds of the law. We recommend working with your banker(s) to determine the right statutorily authorized investment vehicle for your district’s money.

The Comptroller’s opinion is Chenango Valley Central School District. You can find it here:

http://www.osc.state.ny.us/localgov/audits/schools/2009/chenangovalley.pdf

Posted in All Posts, John P. Lynch | Comments Off

Can a student suspension be shortened or revoked if the student attends counseling?

January 7th, 2010

Prior to 2006, it was unclear whether or not a student’s return or revocation of suspension could be conditioned upon the student’s participation in counseling. However, in 2006 language was added to the Education Law expressly permitting a district to do so. Education law 3214 (e) provides in part:

Procedure after suspension… where a pupil has been suspended for cause, the suspension may be revoked by the Board of Education whenever it appears to be for the best interest of the school and the pupil to do so. The Board of Education may also condition a student’s early return to school and suspension revocation on the pupil’s voluntary participation in counseling…

The new commissioner of education reinforced this addition to the education law in a recent decision. Decision No. 16004, the student, S.H., was suspended for giving another student prescription medication to “hold.” The medication was found in the student’s locker and SH was suspended and subject to a superintendents hearing. At the hearing, SH admitted to giving her prescription medication to the student and acknowledged that she was aware that school policy required such medications must be brought to and dispensed by the school nurse. The hearing officer found that the student was guilty and proceeded to the penalty phase of the hearing.

During the penalty phase of the hearing, the hearing officer asked the principal for a recommendation in regard to the penalty. The principal stated that a 20 day suspension would be appropriate however the district would hold the suspension in abeyance if the student participated in drug counseling. The petitioner agreed. The hearing officer recommended this penalty and the superintendent adopted the hearing officers decision. The petitioner appealed the decision and claimed, among other contentions, that the district improperly conditioned SH attendance upon participation in drug counseling.

Commissioner Steiner ruled in favor of the District stating that the “petitioner’s claim that the respondent improperly conditioned her daughter’s attendance in school upon her participation in drug counseling has no merit” and referred to Education Law 3214 (e) as the basis.

Therefore, a district does have the ability to offer a student the opportunity to return early from a suspension subject to the student’s participation in counseling.

Posted in All Posts, Amy J. Lucenti | Comments Off

Before A Student Gets It (Suspended), the School District Must Prove That Student Got It (Code of Conduct)

December 21st, 2009

The Regulations of the Commissioner of Education (§ 100.2 (l)) entitled School Conduct and Discipline require each school district to adopt and implement a discipline code which shall be publicized and explained to all students and provided in writing to all parents on an annual basis. Before a suspension can be imposed as a result of a Superintendent’s hearing pursuant to § 3214 of the Education Law, the student must be charged with and found guilty of violating a provision(s) in the Code of Conduct. . . . the Education Law provides that each district must adopt its own locally developed code of conduct setting forth expectations for students’ behavior and outlining the appropriate range of disciplinary measures that may be imposed for violation of such code (Education Law §2801). Appeal of a Student with a Disability from Actions of the Boards of Education of the Franklin Central School District and the Susquehanna Valley Central School District regarding student discipline. Decision No. 16,002.

As part of the evidence at a § 3214 hearing, the School District introduces notice of the charges which specifically refers to the provisions of the Code of Conduct which have been violated, as well as a copy of the Code of Conduct. On occasions, a student will assert that he never received a copy of the Code of Conduct, and his representative (parent or attorney) will argue that the student cannot be found guilty of violating a provision in the Code of Conduct if the student was not aware of the Code of Conduct. The School District must then establish how the student received the Code of Conduct.

Ideally, a document containing the student’s signature and date would satisfy the requirement of proving that the student received the Code of Conduct. Some districts have students sign a sheet of paper after their teacher has explained and distributed the Code of Conduct acknowledging that they have received the Code of Conduct and will read it. Less ideal but still acceptable is testimony that the teacher at the beginning of the school year distributed a copy of the Code of Conduct to each student on a particular day. In that case, there would also have to be proof that the student was in attendance and in that class when the Code of Conduct was distributed.

The School District should review the procedures which it follows in distributing the Code of Conduct to its students to preclude the argument that the student cannot be punished for violating something the student did not receive.