Student Licensing Requirements

July 28th, 2010

Chapter 215 of the Vehicle and Traffic Law in regard to student licensing requirements was amended and became effective July 15, 2010. Prior to the amendment, Section 502 (2) (c), permitted an individual at least seventeen years of age to submit an application for a license if that individual submitted acceptable proof of successful completion of a drivers education course, approved by the state education department and the commissioner. However, the amendment requires that the individual must now submit proof of completion of the minimum hours of supervised driving as required in paragraph (d) of this subdivision as well.

We anticipate that the Department of Motor Vehicles will provide a form for this requirement. However, as of this date, no such form has been created and districts will therefore need to create a form in the interim.

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

Absentee Voter Statements Get An Update

July 21st, 2010

The Legislature has changed the absentee voter statement that must appear on the reverse side of all envelopes for submission of absentee ballots to the District. The changes to the voter statements became effective June 22, 2010. Below is the new language, depending on whether your district does or does not require personal registration, with the deletions from the old language struck through, and the additions in bold and underlined for your convenience.

For Districts REQUIRING personal registration of Voters:

 

STATEMENT OF ABSENTEE VOTER

I do declare that I am a citizen of the United States, and will be at least eighteen years of age, on the date of the school district election; that I will have been a resident of this state and of the school district and school election district, if any, shown on the reverse side of this envelope for thirty days next preceding the said election and duly registered in the school district and school election district, if any, shown on the reverse side of this envelope and that I am or on such date will be, a qualified voter of said school district; that I will be unable to appear personally on the day of said school district election at the polling place of the said district in which I am or will be a qualified voter because of the reason stated on my application heretofore submitted; that I have not qualified, or do I intend to vote, elsewhere than as set forth on the reverse side of this envelope; that I have not received or offered, do not expect to receive, have not paid, offered or promised to pay, contributed, offered or promised to contribute to another to be paid or used, any money or other valuable thing, as a compensation or reward for the giving or withholding of a vote at this school district election, and have not made any promise to influence the giving or withholding of any such votes; that I have not made or become directly or indirectly interested in any bet or wager depending upon the result of this school district election; and that I have not been convicted of bribery or any infamous crime, or, if so convicted, that I have been pardoned or restored to all the rights of a citizen, without restriction as to the right of suffrage, or received a certificate of relief from disabilities or a certificate of good conduct [granted by the board of parole] pursuant to [the provisions of the executive] article twenty-three of the correction law removing my disability to register and vote.

I hereby declare that the foregoing is a true statement to the best of my knowledge and belief, and I understand that if I make any material false statement in the foregoing statement of absentee voter, I shall be guilty of a misdemeanor.

Date…………………Signature of Voter ……………………..

For Districts which Do NOT require personal registration of voters:

STATEMENT OF ABSENTEE VOTER

I do declare that I am a citizen of the United States, and will be at least eighteen years of age on the date of the school district election; that I will have been a resident of this state and of the school district and school election district, if any, shown on the reverse side of this envelope for thirty days next preceding the said election and that I am or on such date will be, a qualified voter of said school district; that I will be unable to appear personally on the day of said school district election at the polling place of the said district in which I am or will be a qualified voter because of the reason stated on my application heretofore submitted; that I have not qualified, or do I intend to vote, elsewhere than as set forth on the reverse side of this envelope; that I have not received or offered, do not expect to receive, have not paid, offered or promised to pay, contributed, offered or promised to contribute to another to be paid or used, any money or other valuable thing, as a compensation or reward for the giving or withholding of a vote at this school district election, and have not made any promise to influence the giving or withholding of any such votes; that I have not made or become directly or indirectly interested in any bet or wager depending upon the result of this school district election; and that I have not been convicted of bribery [of] or any infamous crime, or, if so convicted, that I have been pardoned or restored to all the rights of a citizen, without restriction as to the right of suffrage, or have received a certificate of relief from disabilities or a certificate of good conduct [granted by the board of parole] pursuant to [the provisions of the executive] article twenty-three of the correction law removing my disability to vote.

I hereby declare that the foregoing is a true statement to the best of my knowledge and belief, and I understand that if I make any material false statement in the foregoing statement of absentee voter, I shall be guilty of a misdemeanor.

Date………………..Signature of Voter ………………………

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

Parents for FMLA purposes; the Department of Labor explains.

July 13th, 2010

On June 22, 2010, the Wage and Hour Division of the US Department of Labor issued Interpretation No. 2010-3 concerning the meaning of the words “son or daughter” as used in The Family and Medical Leave Act (FMLA).

 The interpretation begins with the definition provided in FMLA.  “The definition of “son or daughter” under the FMLA includes not only a biological or adopted child, but also a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” 29 U.S.C. §2611(12).” (emphasis added).

 The Labor Department’s interpretation focuses on the meaning of the term “in loco parentis.” The Department states:

 It is the Administrator’s interpretation that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child.  For example, where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition.  The same principles apply to leave for the birth of a child and to bond with a child within the first 12 months following birth or placement.  For instance, an employee who will share equally in the raising of a child with the child’s biological parent would be entitled to leave for the child’s birth because he or she will stand in loco parentis to the child.  Similarly, an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.

 Please note there is no requirement for the employee to prove that the employee provides any financial support for the child, day to day care (whatever that means) is enough.

 The Department’s interpretation goes on to state:

 It should be noted that the fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the “son or daughter” of an employee who lacks a biological or legal relationship with the child for purposes of taking FMLA leave.  Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA.  For example, where a child’s biological parents divorce, and each parent remarries, the child will be the “son or daughter” of both the biological parents and the stepparents and all four adults would have equal rights to take FMLA leave to care for the child. 

 In other words, there is no limitation on the number of people who can claim to be parents of one child for FMLA purposes.

 How is the employer to know? What kind of evidence may the employer request in order to determine if an employee is a parent for FMLA purposes? The interpretation provides the answer.

 Where an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or statement of the family relationship.  A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship. 

 Please note there is no authority in this document or in the Law or Regulations for the employer to look beyond the employee’s statement. If the employee provides the written statement, the employee gets the leave.

 Please keep in mind that the advice provided by the Department should be used only in the interpretation of the FMLA. This document has no value as an interpretive tool in context of the The Family Education Rights and Privacy Act or any State Law provisions pertaining to custody or homelessness.

 A copy of the Department of Labor’s interpretation can be found here: http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm?utm_source=Subscribers&utm_campaign=0ec20b71d7-Federal_Regulations_7_13_2010&utm_medium=email

 

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

SED Clarifies When Contracts With Outside Providers are Permissible

July 2nd, 2010

Over the past few years, through a series of Commissioner’s decisions, SED has indicated that contracting with outside service provider to provide certain services is impermissible under the Education Law. See Appeal of McKenna, et al., 42 Ed Dept Rep 54, Decision No. 14,774, Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375, Appeal of Friedman, 19 Ed Dept Rep 522, Decision No. 10,236, and Appeal of Woodarek, 46 Ed Dept Rep 1, Decision No. 15,422. These decisions have made clear that District personnel must provide core academic services including substitute teaching services, psychological services and social worker services.

In a Memorandum from John B. King, Senior Deputy Commissioner for P-12 Education dated June 2, 2010, SED clarified when hiring outside contractors is appropriate. The memorandum can be found at

 http://www.emsc.nysed.gov/resources/contractsforinstruction/ .

Attached to the memorandum is a Q & A document,

http://www.emsc.nysed.gov/resources/contractsforinstruction/qa.html,

which provides a definition of what services constitute core educational services. “… core instructional services include those in which students are provided classroom instruction to meet State learning standards in the seven general curriculum areas (English language arts; mathematics, science and technology; social studies; languages other than English; the arts; health, physical education and family and consumer sciences; and career development and occupational studies) (see 8 NYCRR §§100.1, 100.2, 100.3, 100.4, 100.5). Instruction in courses for which credit is awarded toward a high school diploma would also constitute “core instructional services.” Core instruction includes special classes for students with disabilities.”

More importantly, the Q & A specifically discusses distance learning indicating that subcontracting for distance learning services is appropriate and related services. The Q & A indicates that a district may contract for related services with an outside provider when such contract is not a method to circumvent tenure laws. For example, in Appeal of Barker and Pitcher, the school social worker was laid off after the position was eliminate but then the district contracted with an outside provider for social work services. The Commissioner ruled that the district was using the outside contract as a means to circumvent the tenure rules and therefore the contract was inappropriate. For further information relating to the appropriateness of outside contracts for provision of services, you should contact your school’s attorney.

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

R U PRIV8? Supreme Court permits public employers to reasonably search text messages of employees.

June 23rd, 2010

The Supreme Court recently found that public employers may search their employee’s pager communications for non-investigatory business reasons, so long as the search is reasonable at its inception and the scope of the search is reasonable for the purpose. Any information found may then be used for disciplinary purposes. City of Ontario, California v. Quon (June 17th, 2010) To a large extent the Court merely affirmed that its long standing rules regarding an employee’s expectations of privacy at government employment apply to electronic as well as hard-copies of documents and files.

In the case, the City purchased pagers and service plans from a local telecom company and distributed the pagers to its police SWAT team to help the team coordinate for a rapid response. The City’s plan allowed each pager a certain number of characters each month, with additional fees when that limit was exceeded. One of the officers exceeded the limit for several months, but reimbursed the City for each month that he did. The department head did not like collecting checks each month and decided to review the texts to see if the City needed to increase the cap. As owner of the service plans, the Department got copies of the texts from the service provider and found that the vast majority of the texts were not work related, and several of them were sexually explicit. Of 456 messages sent in one month during work hours, only 57 were work related. The City disciplined the employee for conducting personal business while on duty, and the police officer appealed, claiming that he had a constitutional right to privacy in the text messages which the City violated by searching without a warrant.

The Court stated that the Fourth Amendment’s protection against unreasonable searches bars the government from searching communications where a person has an expectation of privacy, unless the agency gets a warrant. This protection is not surrendered by citizens merely by taking a job with a government agency.

The Court noted that because electronic communications such as emails, pagers and texting are so new there are no clearly accepted boundaries regarding workplace expectations of privacy for such communications. The Court stated, however, that even assuming the officer did have an expectation of privacy regarding the pager’s communications, given that the pager and service was provided by the employer for work purposes, and the City’s purpose was determining whether it provided its employees with a large enough texting plan, the City was reasonable in searching for the relevant information, which was how much business related texts did the officer typically send. The Court then stated the City was reasonable in the scope of its search by reviewing only messages sent during work hours, even though there were more restrictive methods possible, and upheld the search.

Note that the Court indicated that the same analysis could be used for investigations of alleged misconduct.

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

We Don’t Live there!-Residency Issues

June 15th, 2010

Have you ever had this happen-the parent of a student indicates that the family resides within your district. Then the child speaks, we don’t live there, and provides a completely different address that isn’t even in the District. What can the district do? The Commissioner of Education has recently provided some guidance.

In Decision No. 16059, the student of the district of purported residence mentioned to the district that the family address was in a different town than the parent reported. The address provided by the student was out-of-district. The district in response to receipt of this information, conducted an investigation. The investigation included observation of the in-district address on 10 separate occasions. On all ten occasions, the children were not present at the in-district address. Further, the children were observed being dropped off and picked up at school in a vehicle registered to their father at the out-of-district address provided by the students. The district therefore notified the family that a determination was made that the students were not residents of the district. When presented with this determination, the family indicated that they do own several properties, including the property at the address provided by the children, but the property is only a summer home. They continue to allege that they live with the grandparents within the district.

The Commissioner dismissed the case as untimely but he did offer some guidance as to residency determinations. The Commissioner stated that in situations where the child’s parents live apart, the child can have only one legal residence. He further stated that in circumstance of joint custody where the time spent with the child is “essentially divided” then the family has the ability to choose which address will be used for residency purposes.

The Commissioner then addressed the situation where the families shared joint custody but the time with the child was not “essentially divided” between parents. In those situations, the Commissioner stated that “residency is to be determined by the traditional tests of physical presence in the district and the intent to remain there.” In his decision he listed numerous documents provided by the parent to support their contention of the in-district address. Those documents included the student’s mother’s driver’s license, personal check, bank statement, a mobile telephone bill, a form from the board of elections, an employer pension plan statement and several other documents. These alone were not sufficient to support the claim of the in-district address.

In response to the documents provided by the parent, the School District provided the unrefuted results of the surveillance for the ten separate occasions as well as taxes filed listing the out-of-district address. It was also noted that there was not a lease agreement for the alleged in-district address. The Commissioner thereby found the District’s evidence compelling and opined that the students were not resident of the District.

There is not a magic number or set of papers to support or refute a claim of residency. Instead, a determination of residency appears to be based upon the totality of the information provided.

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

What rights of reappointment do excessed teachers have?

June 10th, 2010

We have received many questions recently regarding the right of reappointment for excessed teachers. A teacher who is excessed because a teaching position has been abolished must be placed on a preferred eligible list of candidates for appointment to a similar position for seven years after the position is abolished.

Teachers are only entitled to reappointment within the tenure area in which they served, even if they hold certification for positions in other tenure areas. (Board of Education v. Barker Teachers Union, 51 NY2d 855. A teacher who is reappointed to a similar position with the district is entitled to appointment without reduction in salary or increment.

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

A Tribute to Spring, The Student Discipline Season

May 26th, 2010

 

Spring is definitely here and, as usual, with the warm weather comes student misbehavior. As we all know, the misbehaviors may be small warranting limited discipline. However, sometimes they involve more serious behaviors like drugs or weapons.

In what I believe to be a tribute to Spring, the student discipline season, the Commissioner of Education has written a decision entitled Appeal of a Student with a Disability, Decision No. 16,064 which is a nice review of some of the rules related to superintendent’s hearing pursuant to Education Law §3214. For example, the Commissioner reminds us that the decision to suspend a student from school pursuant to Education Law §3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133;　Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37;　Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581;　Appeal of A.W., 46　id. 367, Decision No. 15,535).　 Where a student admits the charged conduct, the admission is sufficient proof of guilt. This standard is different than in a criminal trial where an admission of guilt may not be the only evidence of criminal conduct. Being aware of the differences in standards is important as it may reduce the need to call student witnesses at the hearing.

The decision continues to remind us that in cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.　 The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of J.C., 46 Ed Dept Rep 562, Decision No. 15,596;　Appeal of C.D. and P.D., 46　id. 459, Decision No. 15,563).　　The penalty of 23 days imposed in this case, for posting signs that contain threats on school grounds, is not so disproportionate as to warrant substitution for respondent’s judgment (see　Appeal of A.S., 46 Ed Dept Rep 296, Decision No. 15,514). And so we must always balance the need for discipline against the tenets of fundamental fairness. In doing so, consultation with the school district attorney is the best way to ensure that your Spring discipline decisions, whether large or small, will not be expunged if appealed.

Anyone interested in reviewing the decision can find it at: http://www.counsel.nysed.gov/Decisions/volume49/d16064.htm

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

So your budget was voted down, what’s next?

May 18th, 2010

If your District’s proposed budget is defeated at the annual election, the District may either: 1) put forth the original or a revised budget for a revote held on June 15, 2010, or 2) adopt a contingency budget without voter approval. In either case, the District may also offer propositions to the voters to fund purchases or services that may not be included in a contingency budget. If the District opts for the revote and the proposed budget is again defeated, the District must adopt a contingency budget.

There is a fair amount of misinformation about the total permitted size of the contingency budget. Education Law provides that a contingency budget has a cap which is the lesser of a 4 percent increase or 120 percent times the increase in the Consumer Price Index (CPI) over last year’s budget. This year because the CPI is 0% and since 120% times zero equals zero, a contingency budget may not be larger than the previous year’s budget. However, the comparisons are made after all of the non-reoccurring expenses are removed from both last year’s and this year’s budget. There are numerous additional exclusions from calculating the cap including, for instance, programs that are entirely supported from outside sources and debt service on voter approved projects.

However, there is no legal requirement that the contingency budget for this year be smaller than the proposed budget for this year. While the Department of Education has put out a notice saying that the contingency budget should be smaller than the proposed budget, it is not a requirement. The only requirements are that the contingency budget is under the cap and includes only permitted items.

Finally, because the legislature has repeatedly expanded the definition of permitted items in response to voter complaints, there are very few items that do not qualify as ordinary contingent expenses or other includable expenses within the contingency budget. Excluded expenses include equipment purchases and non-emergency capital expenditures – unless approved a in separate proposition, and community use of school property unless completely supported by use fees.

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

Reinventing the Wheel?

May 12th, 2010

With the advance of technology, has come further opportunity for students to engage in misconduct both on and off campus. While the Courts have upheld the district’s right to discipline students for off campus misconduct, in cases such as Wisniewski vs. Weedsport CSD, some districts continue to question if this is, in fact, permissible. NYSSBA has proposed a model Code of Conduct which includes the addition of further language into a district’s prohibited Code of Conduct regarding the misuse of personal electronic devices, cyberbullying/sexting and pornographic material. The addition of this language is not required as it is already covered by the district’s current prohibited Code of Conduct. However, it remains the district’s decision whether or not to include this language in its prohibited Code of Conduct.

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

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