Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, June 30, 2010

Federal court issues preliminary injunction barring Indiana district from allowing student-led prayer at high school graduation ceremony

Workman v. Greenwood Cmty. Sch. Corp., __F.Supp.2d____ (S.D. Ind. Apr. 30, 2010), is an interesting case. The court issued a preliminary injunction enjoining school district officials from allowing any prearranged, predetermined student-led prayer at the high school’s commencement exercises.

In regard to the issue of prayer in public schools, the court stated that the U.S. Supreme Court “has blazed a clearer trail” than in other areas of First Amendment jurisprudence. Citing to Lee v. Weisman, 505 U.S. 577 (1992), the court held that clergy-led graduation prayers, when marked with the imprimatur of a public school, violate the First Amendment. The court also examined Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).

The court synthesized Lee and Santa Fe to arrive at the following standard to be applied in the case before it: “school-sanctioned graduation prayer in the secondary school context is unconstitutional when no public forum is offered, whether the ultimate decision to permit a prayer is made by the school itself or by a vote of the student body in an election process devised by the school.”

This decision is full of cites and worth a read for those interested.

Mitchell H. Rubinstein

June 30, 2010 in Education Law | Permalink | Comments (0)

Tuesday, June 29, 2010

New Jersey appellate court upholds governor’s executive order withholding state aid to local school districts in amount of surplus funds held by those districts

In Perth Amboy Bd. of Educ., No. A-3361-09T4 (N.J. Super., App. Div. June 14, 2010), a New Jersey intermediate level court held that Governor’s Christie's executive order directing the state to withhold state aid to local school districts for the remainder of fiscal year (FY) 2010 in an amount equal to the anticipated surplus funds for each district as determined by the Commissioner of the Department of Education (Commissioner) does not violate the state constitution’s principle of separate of powers. The court rejected the argument made that that the executive order constituted gubernatorial lawmaking in violation of the constitutional principle of separation of powers because it conflicts with the legislative mandate of N.J.S.A. 18A:7F-7 that excess surplus be appropriated to the school district’s subsequent fiscal year’s budget.

This is an important decision which will no doubt be appealed to the NJ Supreme Court.

Mitchell H. Rubinstein

June 29, 2010 in Education Law | Permalink | Comments (0)

Mass firing of teachers leads to suit against Rhode Island district and state education commissioner challenging constitutionality of action

This may be a bit of old news. But in case you have not heard, the teachers’ union has filed suit in federal court against Superintendent Frances Gallo and Rhode Island Education Commissioner Deborah Gist, demanding reinstatement of 77 teachers who lost their jobs and a protective injunction, according to published reports.  The teachers, who worked at Central Falls High School, claim that the mass firing violated federal education laws and the U.S. Constitution. Gallo blamed the teachers’ union for its "callous disregard" of her proposal to improve graduation rates by adding 25 minutes to the school day and calling for teachers to provide tutoring on a rotating schedule, to eat lunch with students once a week, to submit to rigorous evaluations, to attend 90-minute weekly planning sessions after school, and take in two weeks of training at a rate of $30 per hour during the summer.

The union claims the mass firing violated due process, and that the Transformation Model did not empower the superintendent or the school board to violate the collective bargaining agreement. That agreement states that teachers must be given "individualized reasons" for being fired, and the right to a formal hearing with 24 hours notice.

This will be an interesting case to watch

Courthouse News Service, 4/30/10, By Alexandra D’Angelo

Legal complaint

Mitchell H. Rubinstein

June 29, 2010 in Education Law | Permalink | Comments (0)

District prohibition on student’s anti-abortion protest involving wearing armband, and distributing flyers violated her free speech rights

C.H. v. Bridgeton Bd. of Educ., ___F.Supp. 2d ____ (D. N.J. Apr. 22, 2010), is an interesting case. A lower court held that school officials violated a student’s First Amendment right to freedom of speech and expression when they prohibited her from participating in a national day of silent protest against abortion. . The student planned to: (1) remain silent during class; (2) remain silent during the entire school day; (3) hand out flyers to other students about her silence; and (4) wear a red duct tape band with the word “LIFE” in black marker either over her arm and/or mouth. In denying her request, the principal stated that taping her mouth and wearing the bands would violate BHS’s dress code policy; no handouts would be allowed because they would violate the school’s literature distribution policy. C.H. also claimed the only reason the principal gave her father for the decision was that “religious” material was not allowed in school.

The decision is complicated and is a primer of First Amendment rights in schools. The decision rests on an interpretation of Tinker v. Des  Moines, 393 U.S. 503  (1969).

Mitchell H. Rubinstein

June 29, 2010 in Education Law | Permalink | Comments (1)

Monday, June 28, 2010

Definition of Son or Daughter Under FMLA

I bet you never thought there would be an issue with respect to the definition of son or daughter. Well, the issue comes up  when there is no legal or biological parent-child relationship. The FMLA has issued an opinion letter seeking to clarify who a son or daughter is.

The DOL has adopted a multi-factor test. It is the Wage and Hour Administrator’s interpretation that either day-to-day care or financial support may establish an in loco parentis parental status relationship where the employee intends to assume the responsibilities of a parent with regard to a child. But in all cases, whether an employee stands in loco parentis to a child will depend on the particular facts.

The full text of the Division’s interpretation letter FMLA 2010-3 can be found here:

Mitchell H. Rubinstein

June 28, 2010 in FMLA | Permalink | Comments (0)

Rare Decision Finding Employee Attorney Left His Job For Good Cause and Is Entitled To Unemployment


Matter of Collen v. Commissioner of Labor, ___A.D.3d___(3rd Dep't. June 24, 2010), is one of those rare decisions finding an employee eligible for unemployment insurance because he left his employment for good cause. The employee, an attorney, refused to make a misrepresentation to the client. As the court stated:

We find that, inasmuch as the Board credited claimant's version of the events, substantial evidence supports the Board's determination that good cause existed for claimant to leave her employment in order to avoid the required performance of an illegal or unethical act (see Matter of Grace [Astrocom Elecs., Inc.—Commissioner of Labor], 69 AD3d 1156, 1157 [2010]; see generally Matter of Pollack [Commissioner of Labor], 19 AD3d 961, 962 [2005]; [*2]Matter of Kunzler [Hudson Guild—Commissioner of Labor], 297 AD2d 846, 847 [2002]; Matter of Fumia [Nothnagle Home Sec.—Sweeney], 222 AD2d 923 [1995]). The employer's denials that the letter sent in claimant's name contained misrepresentations and that claimant had been asked to mislead clients raised an issue of credibility for the Board to resolve (see Matter of Velez [Commissioner of Labor], 70 AD3d 1100 [2010]; Matter of Park [Stanford New York, LLC—Commissioner of Labor], 70 AD3d 1097, 1098 [2010]).

Lastly, we are unpersuaded by the employer's contention that the Board abused its discretion in not holding further hearings, particularly when the employer failed to offer a valid explanation as to why it did not submit the relevant evidence at the earlier hearing (see Labor Law § 621 [3]; Matter of Whylie [Commissioner of Labor], 38 AD3d 1037, 1039 [2007]; Matter of Miller [Commissioner of Labor], 9 AD3d 567, 568 [2004]).

Mitchell H. Rubinstein

June 28, 2010 in Employment Law | Permalink | Comments (0)

Lesbian student’s senor class photo excluded from Mississippi high school’s yearbook

According to a local newspaper report, the senior photo of Ceara Sturgis was omitted from the Wesson Attendance Center yearbook, as was any mention of her. Sturgis and her mother, Veronica Rodriguez, had been involved in a long battle with school officials over inclusion of a photo of Sturgis wearing a tuxedo in the school's 2010 yearbook. Sturgis and her mother asked the Mississippi chapter of the America Civil Liberties Union (ACLU-MS) to protest officials' October 2009 decision not to allow Sturgis' photo to appear in the senior yearbook because she chose to wear a tuxedo instead of a drape. ACLU-MS wrote a letter demanding officials use Sturgis' submitted photo in the yearbook, but Copiah County School District (CCSD) officials refused. There was no reference to Sturgis on the senior page. Sturgis' baby picture did appear in later pages with her name beside it, and she was pictured several times in other sections of the yearbook, in soccer-team photographs, National Honor Society and other sections. A photograph her mother took of her in her tuxedo appears on a page purchased by her family.

The ACLU would not confirm if it planned any legal action on the school's decision at this time.

Source: Jackson Free Press, 4/26/10, By Adam Lynch

Mitchell H. Rubinstein

June 28, 2010 in Education Law | Permalink | Comments (0)

Sunday, June 27, 2010

Kagan Confirmation Hearings Expected To Be Full of Politics

Supreme Court

The Kagan confirmation hearings begin today, June 28, 2010 and they are expected to be full of politics with an eye on the midterm elections. A New York Times article about this is available here. As the article states:

With an eye on the midterm elections, Democrats will use Ms. Kagan’s hearings, which begin Monday, to put the Roberts court on trial by painting it as beholden to corporate America.

Republicans will put Mr. Obama on trial over what they view as his Big Government agenda, and will raise questions about whether Ms. Kagan, his solicitor general and former dean of Harvard Law School, is independent enough to keep that agenda in check.

“This debate and what it says about President Obama will be part of the discussion, frankly,” said Senator Jeff Sessions of Alabama, the top Republican on the Judiciary Committee. Americans, he said, “are not happy with the expanding power of the federal government” and want judges to “say no to the federal government when it overreaches.”

Mitchell H. Rubinstein

June 27, 2010 in Supreme Court | Permalink | Comments (0)

Grade Inflation To The Extreme

The New York Times ran an interesting article on June 26, 2010 entitled How Many Graduates Does It Take To Be Number 1? It is about how some high schools have multiple valedictorians. As the article states:

“When did we start saying that we should limit the honors so only one person gets the glory?” asked Joe Prisinzano, the Jericho principal.

In top suburban schools across the country, the valedictorian, a beloved tradition, is rapidly losing its singular meaning as administrators dispense the title to every straight-A student rather than try to choose the best among them.

Principals say that recognizing multiple valedictorians reduces pressure and competition among students, and is a more equitable way to honor achievement, particularly when No. 1 and No. 5 may be separated by only the smallest fraction of a grade from sophomore science. But some scholars and parents have criticized the swelling valedictorian ranks as yet another symptom of rampant grade inflation, with teachers reluctant to jeopardize the best and brightest’s chances of admission to top-tier colleges.

I find this to be unfortunate. Why? Because it de-values the honor of the individual who truly is number 1. So why do schools do it? No doubt to help their top graduates to get into top colleges. Only problem is that everyone else appears to be doing the same.

Mitchell H. Rubinstein

June 27, 2010 in Colleges | Permalink | Comments (0)

Online Defamation

Recent Decisions Tackle Electronic Defamation is an interesting May 4, 2010 article from the New York Law Journal (registration required). Unfortunately, the article is not particularly well written. Researchers and lawyers, however, still may find the article helpful because it does cite to several cases involving online defamation.

Mitchell H. Rubinstein

June 27, 2010 in Law Review Ideas, New York Law | Permalink | Comments (0)

Saturday, June 26, 2010

Law Student Sets Up Pay Pal Account To Accept Tuition Donations

Here is a new one. A law student, actually a accepted student to Univ of North Carolina at Chapel Hill set up a web site and is seeking donations for her tuition. So far, she had gotten 3 donations. An article about this student in the ABA New Journal Now is available here.

Mitchell H. Rubinstein

June 26, 2010 in Law Students | Permalink | Comments (0)

Former employee’s claims of denial of administrative due process in a disciplinary hearing rejected by the Appellate Division

Matter of Stodolka v Starpoint Cent. School Dist., 2010 NY Slip Op 03698, Decided on April 30, 2010, Appellate Division, Fourth Department

The Stodolka decision by the Appellate Division, Fourth Department, is an interesting decision as it sets out, and answers, a number of procedural issues that may be encountered in an administrative disciplinary action.

Charles K. Stodolka was found guilty of disciplinary charges filed against him pursuant to Civil Service Law §75 and terminated from his position as director of school facilities and operations at the Starpoint Central School District.

In his appeal Stodolka raised a number of arguments in support of his claim that district’s decision should be annulled.

1. Stodolka argued that he was denied administrative due process because the §75 hearing officer “refused to adjourn the hearing based on his alleged medical condition."

The Appellate Division rejected Stodolka’s claim, commenting that he had failed to respond in a timely manner to “the Hearing Officer's reasonable request for medical documentation to support the adjournment.”

Further, said the court, the documentation that Stodolka ultimately presented to the hearing officer did not support his contention that he was physically unable to attend the hearing.*

2. Stodolka contended that the school district’s failure provide him with a "bill of particulars" as he demanded “until after the commencement of the hearing” likewise denied him due process.

The court said that Stodolka did not request a bill of particulars from the school district until the day before the commencement of the disciplinary hearing and the school district, in response to his demand, served the bill of particulars on him before the second day of testimony, and prior to the cross-examination of any witnesses.**

3. Stodolka also complained that the school district failed to warn him that it might file disciplinary charges against him.

The Appellate Division, citing Leotta v Hasl, 134 AD2d 429, pointed out that the school district “did not have a duty to warn [Stodolka] that his conduct was improper prior to bringing a proceeding against him" and, in any event, Stodolka was repeatedly warned via his annual performance evaluations that he was required to arrive to work on time as scheduled and that his repeated and unexcused tardiness was unacceptable.

In addition, the court said that the record indicated that the School District's superintendent wrote to Stodolka specifically warning him that "further action w[ould] be taken" if he continued to be late to work.

4. The court also rejected Stodolka’s argument that he was denied due process because “a single witness testified at the hearing that [Stodolka] was tardy more frequently than was specified in the bill of particulars."

The Appellate Division said that the notice of charges, together with the bill of particulars, adequately apprised Stodolka of the nature of the charges against him, thereby enabling him to prepare and present a defense to the charges.

In this regard, the court, citing Matter of Fitzgerald v Libous, 44 NY2d 660, noted that Civil Service Law §75[2] in pertinent part, provides: “A person against whom removal or other disciplinary action is proposed shall have written notice thereof and of the reasons therefor, shall be furnished a copy of the charges preferred against him and shall be allowed at least eight days for answering the same in writing.”***

The Appellate Division concluded that “the determination insofar as it is challenged by [Stodolka] is supported by the requisite substantial evidence, i.e., ‘such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’ … and that, under the circumstances of this case, the penalty of termination of employment is not "so disproportionate to the offense as to be shocking to one's sense of fairness.'”

* The Appellate Division found that Stodolka was absent for only a portion of the direct examination of one witness and that he otherwise was present for the remaining 14 days of the disciplinary hearing, including the cross-examinations of all other witnesses.

** Sometimes an employee will demand "a bill of particulars" requiring the employer to set out the charges and specifications filed against the individual in greater detail. Although Education Law Section 3020-a 3 c(iii)(C) states that an administrator or teacher has the right to demand a "bill of particulars" concerning the charges and specifications filed against him or her, no similar provision is included in Section 75 of the Civil Service Law. In some instances the disciplinary grievance procedure set out in a collective bargaining agreement allows the employee to demand a "bill of particulars."

*** On this related issue, although Section 75 requires the appointing officer to allow the accused employee at least eight days to file his or her answer to disciplinary charges in writing, this simply requires that the employee be provided with at least eight days in which to prepare and submit an answer to the charges. As Section 75 is silent as to when the accused individual must file his or her answer, this suggests that the individual may remain mute -- i.e., decline to file an answer to the charges -- without jeopardizing any of his or her Section 75 rights to administrative due process.

[For information about PELP's The Discipline Book, available both as an e-book and in a softcover format, go to: ]

The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

June 26, 2010 in Public Sector Employment Law | Permalink | Comments (0)

Blue Book Changes to 19th Edition

This may not be the most interesting topic to readers, but the Blue Book just came out with a new edition. Legal form is actually important. A uniform form is important because it makes it easier from lawyers to find the cited authority and shepardize it electronically. It is also a reflection of legal quality. A brief which is full of inappropriate citation form just does not look good.

Cynthia Pittson of Pace Law Library recently put together a summary of changes to the 19th Edition. Her summary can be found here.

Mitchell H. Rubinstein

June 26, 2010 in Legal Research | Permalink | Comments (0)

Friday, June 25, 2010

School Law Attorney Jobs

School Law Jobs
Job Title Employer Job Location
Labor & Employment Attorney Lozano Smith Fresno, California
Legal Counsel II Whittier Area Cooperative Special Education Program Whittier, California
School Attorney Harbottle Law Group Orange County, California
Special Education Attorney Lozano Smith Fresno, California
Legal Counsel Colorado Association of School Boards Denver, Colorado
School Law Attorney Brannan Legal Search Chicago, Illinois
Attorney Walsh, Anderson, Brown, Gallegos & Green, P.C. Austin, Texas
Attorney Walsh, Anderson, Brown, Gallegos & Green, P.C. Irving, Texas
Assistant General Counsel Tacoma Public Schools Tacoma, Washington
General Legal Counsel Madison Metropolitan School District Madison, Wisconsin
Hiring? Learn more about our School Law Jobs listings.
Still in school? Learn more about the exciting field of School Law

June 25, 2010 in Lawyer Employment | Permalink | Comments (0)

The reliability of student evals - point, counterpoint

Courtesy of the New York Times online columnist Professor Stanley Fish via the TaxProf Blog:

If a waiter asks me, “Was everything to your taste, sir?”, I am in a position to answer him authoritatively (if I choose to). When I pick up my shirt from the dry cleaner, I immediately know whether the offending spot has been removed. But when, as a student, I exit from a class or even from an entire course, it may be years before I know whether I got my money’s worth, and that goes both ways. A course I absolutely loved may turn out be worthless because the instructor substituted wit and showmanship for an explanation of basic concepts. And a course that left me feeling confused and convinced I had learned very little might turn out to have planted seeds that later grew into mighty trees of understanding.

“Deferred judgment” or “judgment in the fullness of time” seems to be appropriate to the evaluation of teaching. And that is why student evaluations (against which I have inveighed since I first saw them in the ’60s) are all wrong as a way of assessing teaching performance: they measure present satisfaction in relation to a set of expectations that may have little to do with the deep efficacy of learning. Students tend to like everything neatly laid out; they want to know exactly where they are; they don’t welcome the introduction of multiple perspectives, especially when no master perspective reconciles them; they want the answers.

New York Times, In Defense of Student Evaluations, by Ross Douthat:

Allow me to respectfully dissent. Yes, in an ideal world, a student’s impression of his teacher’s abilities would be allowed to ripen, over years and decades, before anyone asked for an assessment of said teacher’s pedagogy. But I still think that more often than not, a good teacher will be recognized as such by his students while he’s teaching them, and a bad one will be accurately-pegged as well. (A decade removed from my own classroom education, I’ve revised my opinions of some of my teachers, but not that radically …) Such evaluations will always be necessarily imperfect measures of a teacher’s real quality. But in the context of a higher education system that has radically undervalued teaching skills in favor of a “publish or perish” model of professorial advancement, I think there’s a strong case for placing more emphasis on how students react to their classroom experience, however provisional those reactions may be

June 25, 2010 | Permalink | Comments (0)

Thursday, June 24, 2010

NYC Bar Association Report on Kagan Rates Her As Highly Qualified


The Association of the Bar of the City of New York issued a 12 page report finding her highly qualified for a position on the Supreme Court. The Association reviewed information from a variety of sources:  Solicitor General Kagan’s memos written when she was a clerk for Supreme Court Justice Thurgood Marshall; her speeches and articles; her papers during her service in the Clinton White House; her 2009 testimony in the Senate hearings concerning her confirmation as Solicitor General; Supreme Court briefs and oral argument transcripts from cases she argued as Solicitor General; comments received from City Bar members and committees; a wide range of press reports, blogs and commentaries; and interviews with more than 80 individuals.

Supreme Court watches will find this report of interest.

Mitchell H. Rubinstein

June 24, 2010 in Supreme Court | Permalink | Comments (0)

How To Find Out Information About A Particular Job

An over-looked research tool is the Occupational Outlook Handbook. It describes jobs, training  and educational requirements. Most importantly, it provides future employment projections. That can be very valuable to students and non-students looking to change careers. It is published by the U.S. Department of Labor and it is available free of charge.

Mitchell H. Rubinstein

June 24, 2010 in Legal Research, Misc., Legal, Misc., Non-Legal | Permalink | Comments (0)

Retirement System is required by law to correct errors in retirement benefit payments and seek repayment of excess benefits already paid to a retiree

Matter of Palandra v New York State Teachers' Retirement Sys., 2010 NY Slip Op 50735(U), Decided on March 17, 2010, Supreme Court Albany County, Judge George B. Ceresia, Jr.

Maria Palandra, a retired Superintendent of the Elmont Union Free School District, sued the NYS Teachers’ Retirement System challenging the System’s determination that a portion of salary increases Palandra received prior to her retirement (and other compensation items) should not be included in her three-year final average salary for purposes of determining her retirement allowance.

Palandra was appointed Superintendent of Schools in March 1998 and entered into her first contract with the School District as Superintendent. Two years later Palandra executed a second contract with the School District, extending her employment through the 2002-2003 school year. Well before expiration of the “second contract,” the parties renegotiated the terms of Palandra's employment and entered into a “third contract.”

This contract continued a provision set out in an earlier contract permitting Palandra to elect to receive a one-time "career increment" of 27.5%; and continued the provision for payment of accumulated unused sick days and vacation days upon retirement.

Prior to the expiration of the third contract, on February 10, 2004, Palandra and the School District entered into a fourth contract that “retroactively established Palandra's salary for the 2002-2003 school year at $224,668.00, with salary increases in 2003-2004 and 2004-2005 in accordance with the CPI, capped at 5%."

In September 2004 Palandra requested that the Retirement System provide her with an estimate of her annual retirement benefits. The Retirement System, computed her estimated retirement benefits was $222,178.00, based upon the foregoing contractual increases in compensation. In reliance upon this estimate Palandra decided to retire after the 2004-2005 school year and commenced receiving a retirement allowance of $7,350.00 per month.

In November 2008 the Retirement System told Palandra that a significant portion of the salary increases which she had received since the August 29, 2000 contract had been disallowed for purposes of computing her final annual salary. Palandra sent the System a detailed explanation with regard to why she believed the reductions in her three-year final average salary were unfair. Her letter was considered by the Retirement System in making its final determination, which affirmed the preliminary determination.

Judge Ceresia cited §443 (a) of the New York Retirement and Social Security Law "Final average salary," that, as relevant here, states:

"The salary base used for the computation of benefits upon retirement, hereinafter called in this article final average salary, applicable to all members of the retirement systems who are subject to the provisions of this article, shall be the average salary earned by such a member during any three consecutive years which provide the highest average salary, exclusive of any form of termination pay (which shall include any compensation in anticipation of retirement), or any lump sum payment for deferred compensation, sick leave, or accumulated vacation credit, or any other payment for time not worked (other than compensation received while on sick leave or authorized leave of absence); provided, however, if the salary or wages earned during any year included in the period used to determine final average salary exceeds that of the average of the previous two years by more than twenty percentum, the amount in excess of twenty percentum shall be excluded from the computation of final average salary. . ."*

The court said that the Retirement System “is statutorily required to correct errors in retirement benefit payments and seek repayment of excess benefits already paid in order to ensure that the integrity of the public retirement system is maintained," citing Matter of Blais v New York State Retirement Teachers' System, 68 AD3d 1266.

Further, said Judge Ceresia, “It has been repeatedly held, in construing a similar statute, that compensation items such as termination pay, bonuses, lump sum increments, longevity payments, or lump sum cash payments for sick leave and annual leave, may not be included in final average salary in calculating an employees' retirement benefit.”

In response to Palandra argument in the nature of estoppel in that the System’s final determination was made nearly three and one half years after her retirement and that had she known that her retirement allowance would be drastically reduced from System's original estimate, she would have delayed retirement, Judge Ceresia pointed out that “[i]t is well settled that estoppel cannot be invoked against a governmental agency to prevent it from discharging its statutory duties."

Further, said the court, erroneous information given by a government employee does not ordinarily constitute an exception to the rule.

Finding that the Retirement System's determination was not made in violation of lawful procedure, was not affected by an error of law, and was not irrational, arbitrary and capricious, or an abuse of discretion, Judge Ceresia dismissed Palandra’s petition.

* 21 NYCRR 5003.1(a) of the Rules of the New York State Retirement system, entitled]"Three-year final average salary for members who join system prior to July 1, 1976" provides as follows: "(a) A three-year final average salary is defined as the highest average annual regular salary earned by a member over a period covering three consecutive years of New York State service credit. Regular salary earned shall exclude termination pay and payments which are not part of the salary base and/or are not paid over a period of years; for example, bonuses and one-time-only increments. It shall also exclude any earnings in excess of 120 percent of the earnings for the preceding year of service credit (the preceding two years of service credit for those members who joined on and after July 1, 1973 and before July 1, 1976), after such earnings have been adjusted to exclude the termination pay."

The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

June 24, 2010 in Public Sector Employment Law | Permalink | Comments (0)

Wednesday, June 23, 2010

FMLA Leave To Become Available For Gay Federal Employees

Workplace Prof Blog reported on June 22, 2010 that gay federal employee may take leave to care for a child with a gay partner. Presumably this will occur via Executive Order. This is long overdue.

Mitchell H. Rubinstein

June 23, 2010 in Employment Law | Permalink | Comments (0)

Retroactive application of a law, rule or regulation


St.Clair Nation v City of New York, Court of Appeals, 2010 NY Slip Op 03471, Decided on April 29, 2010

May the provisions of a law, rule or regulation be applied to the individual with respect to his or her conduct prior to the effective date of the law, rule or regulation? This was the significant issue in Leon St.Clair Nation v City of New York.

St. Clair Nation, an engineer licensed by the New York State Department of Education, was alleged to have placed his seal on digitally altered photographs submitted to the New York City Department of Buildings [DOB] in connection with a pavement plan for a building under construction in Brooklyn. It was further alleged that he subsequently attested the accuracy of a falsified photograph in support of another pavement plan for a separate Brooklyn property and, in the following year, he offered a false application to DOB for alterations to a nonexistent second floor of a third Brooklyn parcel.

DOB initiated an administrative proceeding before the New York City Office of Administrative Trials and Hearings seeking to revoke St. Clair Nation’s professional certification privileges. The OATH Administrative Law Judge found, by a preponderance of the evidence, that St. Clair Nation had “negligently certified the accuracy of the altered photographs and submitted a deceptive application.” The ALJ recommended St. Clair Nation’s professional certification privileges be rescinded.

Accepting the ALJ’s recommendation, and relying on a recently enacted amendment to the City’s Administrative Code — Administrative Code § 26-124 (c)* — the Commissioner also precluded St. Clair Nation from filing any application or document with DOB for two years, effective January 15, 2008, to be followed by a three-year probationary period.

St. Clair Nation filed an Article 78 proceeding challenging the Commissioner's determination. He argued that [1] the determination was not supported by substantial evidence; [2] the revocation of his certification privileges was excessive; and [3] that Administrative Code §26-124(c) was inapplicable in this instance because it was enacted in 2007, after he engaged in the acts with which he had been charged.

The Appellate Division held although substantial evidence supported the Commissioner's determination as to the falsification of documents, the provisions Administrative Code §26-124(c) relied upon by the Commissioner could not be applied retroactively by the Commissioner to bar St. Clair Nation from submitting any documents to DOB for two years, together with the three-year probationary period.

DOB appealed and the Court of Appeal held that Administrative Code §26-124(c) could be applied retroactively under the circumstances. The court ruled that the Commissioner's refusal to accept documents from St. Clair Nation for a future period of time did not amount to an improper retroactive application of the provision.

Although, the Court of Appeals, citing Forti v New York State Ethics Commn., 75 NY2d 596, said that “It is well settled under New York law that retroactive operation of legislation ‘is not favored by courts and statutes will not be given such construction unless the language expressly or by necessary implication requires it’ … it is also true that ‘[a] statute is not retroactive . . . when made to apply to future transactions merely because such transactions relate to and are founded upon antecedent events.’”

Matter of Miller v DeBuono, 90 NY2d 783, was a case involving a nurse aide found to have physically abused a nursing home patient in 1991 and was thereafter terminated. The Commissioner of Health barred her from future employment in a nursing home on the authority of 10 NYCRR 415.4 (b) (1) (ii) (b), a provision that had been enacted after the underlying incident of abuse took place. The Court of Appeals concluded that in Miller’s case the regulation had not been inappropriately applied retroactively.

The court’s rationale in Miller: "where the requirements for engaging in specified professional activity are changed to govern future professional eligibility, a statute does not operate retroactively in any true sense even though its application may be triggered by an event which occurred prior to its effective date."

Further, the court noted that provision relied upon in Miller was “a safety measure designed to regulate future employment by precluding nursing homes from hiring nurse aides who had been previously found guilty of abuse.” Thus, the court concluded, the Commissioner of Health's application of the regulation was not improper merely because the nurse aide's disqualifying conduct occurred before its promulgation.

Rejecting St. Clair Nation’s argument that Administrative Code §26-124(c), as applied to him, constitutes an ex post facto law** in violation of the Federal Constitution, the Court of Appeals held that “The Commissioner therefore properly relied on Administrative Code §26-124 (c) in determining that DOB would preclude petitioner from submitting any documents for two years, with a three-year probationary period thereafter.”

Further, said the court, based on St. Clair Nation repeated certification and submission of false materials, “we further conclude that the Commissioner's determination does not shock the conscience.”

* New York City Administrative Code §26-124(c) provides, in relevant part: "In addition to any other penalty provided by law, the commissioner may refuse to accept any application or other document . . . that bears the signature of any person who has been found, after a hearing at the office of administrative trials and hearings pursuant to the department's rules, . . . to have knowingly or negligently falsified or allowed to be falsified any certificate, form, signed statement, application, [or] report." The Court of Appeals noted that the provision was adopted by the Legislature in 2007, this provision was designed to "promote public safety and prevent the waste of taxpayer dollars by eliminating the repeated filing of false information relating to the construction and repair of buildings in New York City" (Senate Memorandum in Support, Bill Jacket, L 2007, Chapter 542, at 8).”

** Ex post facto typically refers to enacting a criminal law that criminalizes conduct that was lawful when it was originally performed. In the Matter of Keith T. Bush v New York State Board of Examiners of Sex Offenders, 2010 NY Slip Op 03441, decided on April 27, 2010, the Appellate Division said that requiring Bush to register under the Sex Offender Registration Act (Correction Law Article 6-C) does not violate the ex post facto clause of the federal constitution (US Constitution Article I, §10[1]), the due process clauses of the state or federal constitutions (NY Constitution, Article I, § 6; US Constitution, Amendment XIV), or Bush's right to equal protection of the law.

The St. Clair Nation decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

June 23, 2010 in Litigation, New York Law | Permalink | Comments (0)