Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Thursday, June 30, 2011

Great Article On Public Sector Bargaining Crisis In This Country

Joe Slater, one of the most important scholars whose focus is public sector labor law, recently published an important article for the American Constitution Society, The Assault on Public Sector Collective Bargaining: Real Harms and Imaginary Benefits (2011). As the article states:

Perhaps the most striking political development in 2011 is the widespread and aggressive assault on public sector collective bargaining rights.  While the most highly publicized and most significant changes have taken place in Wisconsin and Ohio, moves are afoot in a number of states.  These changes represent the most radical revisions to labor law in the U.S. in decades, and they have set off a political firestorm.This brief will argue that these attacks are deeply misguided.  They serve no purpose beyond a partisan attempt to weaken a key supporter of the Democratic party and they do not address budget deficits.  Instead, they take away a core right that has been recognized in the vast majority of the United States for up to half a century, a right that is considered fundamental in much of the industrialized world, a right that helps individual teachers, firefighters, police officers, and other public employees in their day-to-day lives at the workplace, a right that helps sustain a vital middle class, and a right that helps ensure talented and skilled people will find public service an attractive career option.

I am sure that Joe will be turning this piece into a law review article. 

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

June 30, 2011 in Articles, Law Review Ideas, Public Sector Labor Law | Permalink | Comments (0)

Wednesday, June 29, 2011

Tenure by estoppel

Matter of Ronga v Klein, 2011 NY Slip Op 01408, Appellate Division, First Department

A probationary administrator or teacher may attain tenure by estoppel [sometimes referred to as “tenure by acquiescence”] when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny the individual tenure prior to the expiration of the administrator’s or teacher’s probationary term, McManus v Hempstead Union Free School District, 87 NY2d 183.

Richard Ronga, appointed as a probationary principal by the New York City Department of Education [DOE], challenged DOE's terminating his employment on the theory that he was denied due process as he was not give the required pre-termination notice and hearing.

Ronga contended that he had attained tenure as a principal by “estoppel” and thus he was entitled to such due process as a matter of law.

Supreme Court dismissed Ronga’s petition, which ruling was unanimously affirmed by the Appellate Division.

In contrast to Ronga’s claim that he acquired tenure by estoppel, the Appellate Division said that the record established that he did not perform the duties of a principal with DOE's knowledge or consent beyond the expiration of his probationary term.

Further, the court noted, prior to the expiration of Ronga’s probationary period DOE notified him that he would not be granted tenure. According to the decision, Ronga and DOE then negotiated and signed a resignation agreement, which Ronga attempted to revoke later that same day.

The Appellate Division concluded that Ronga failed to demonstrate that he acquired tenure by estoppel and, further, failed to sustain his burden of showing that DOE acted in bad faith when it terminated his employment as a probationary principal, “as he provides no support for his claims.”

N.B. Continuation on the payroll for a brief period after the expiration of a probationary period does not automatically result in the individual attaining tenure by estoppel [Mendez v Valenti, 101 AD2d 612]. The court ruled that as long as the termination of a probationer [in the classified service] is effected within a reasonable time, such as set to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel because of his or her continuation on the payroll following the last day of his or her probationary period.

The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

June 29, 2011 in Education Law | Permalink | Comments (0)

Tuesday, June 28, 2011

Kansas Recognizes Public Policy Exception To Employment At Will Doctrine

The Kansas Supreme Court ruled that an employee could bring a claim of common law retaliatory discharge when he or she was fired for filing a wage claim under the Kansas Wage Payment Act. Campbell v Husky Hogs, LLC, KanSCt, May 20, 2011). The court reasoned that this statute embeds with its provisions a public policy of protecting wage earners’ right to their unpaid wages.

Mitchell H. Rubinstein

June 28, 2011 in Employment Law, Employment-At-Will & Exceptions | Permalink | Comments (0)

Monday, June 27, 2011

NY Appellate Court Summarizes Narrow Standard of Arbitral Review


Sometimes it is important to be aware of recent decisions because they deal with common issues or summarize existing law well. Matter of Westchester Correction Officers v. County of Westchester, ___A.D.3d___(2d Dep't. Feb. 22, 2011), is one such decision. The court explained the arbitral standard of review as follows:

"[J]udicial review of arbitration awards is extremely limited" (Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 479). "An arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached'" (id. at 479, quoting Matter of Andros Cia. Maritima, S.A. [Marc Rich & Co., A.G.], 579 F2d 691, 704). "Courts may vacate an arbitrator's award only on the grounds stated in CPLR 7511(b)" (Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336). "[A]n arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice" (Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d at 479-480; see Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530; Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326; Matter of Sprinzen [Nomberg], 46 NY2d 623, 629; Shnitkin v Healthplex IPA, Inc., 71 AD3d 979, 981).

Here, the petitioner contends that the arbitrator's award was "wholly irrational," and therefore the award constituted misconduct (see CPLR 7511[b][1][i]), and the arbitrator exceeded her powers in issuing the award (see CPLR 7511[b][1][iii]). The petitioner failed to meet its burden of proving by clear and convincing evidence that the arbitrator committed misconduct, and that such misconduct prejudiced its rights or the integrity of the arbitration process (see generally Matter of Hausknecht v Comprehensive Med. Care of N.Y., P.C., 24 AD3d 778, 780). Moreover, an excess of power within the meaning of CPLR 7511(b)(1)(iii) "occurs only where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (Matter [*2]of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d at 336; see Matter of Falzone [New York Cent. Mut. Fire Ins. Co.]15 NY3d 530; Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, 79; Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d at 326-328). Contrary to the petitioner's contention, the arbitrator's determination here was not irrational. 

Mitchell H. Rubinstein

June 27, 2011 in Arbitration Law | Permalink | Comments (0)

Dissatisfaction With Employment Is Not A Sufficient Reason To Award Unemployment


Matter of Brookes v. Commissioner of Labor, ____A.D.3d____(3d Dept. June 23, 2011), illustrates a fundamental principal of New York Unemployment law. If you voluntarily leave your job, you are not eligible for unemployment. Dissatification with your employer or with your salary is not a sufficient reason to leave for unemployment insurance purposes.

Mitchell H. Rubinstein

June 27, 2011 | Permalink | Comments (0)

Innocent Mistake In Application For Unemployment Not Excuseable


Matter of Mondragon v. Commissioner of Labor, ___A.D.3d___ (3rd Dept. June 23, 2011), illustrates a basic principal of unemployment law-in fact most areas of law. Claimant misrepresented that he was not working when in fact he was. Therefore, he was required to pay back the overpayment. The court rejected the claimants argument is that he simply made an innocent mistake on his application for benefits.

Mitchell H. Rubinstein

June 27, 2011 in Employment Law | Permalink | Comments (0)

Sunday, June 26, 2011

Unemployment Law Blog

There is a new blog in town that focuses on Unemployment Law issues in New York. Its called Unemployment Lawyer Blog. Check it out.

Mitchell H. Rubinstein

June 26, 2011 in Blogs, Legal | Permalink | Comments (0)

School District Has No Right To To Litigate Issues Not Raised In Due Process Complaint

Lake Washington School District No. 414 v. OSPI, ___F.3d____ (9th Cir. Feb. 22, 2011),  Download Lake Washington SD 414 v. OSPI (9th 2011), is an interesting case. The 9th holds that a school district or other local educational agency has no express or implied private right of civil action under the IDEA to litigate any question aside from the issues raised in the complaint filed by the parents on behalf of their child. In this case, the school district lacks statutory standing to challenge the State of Washington’s compliance with the IDEA’s procedural protections. The court cites Cnty. of Westchester v. New York, 286 F.3d 150, 153 (2d Cir. 2002) (per curiam) (holding that Congress did not intend to create a private right of action for a county to remedy a state’s alleged failure to comply with the IDEA)

Mitchell H. Rubinstein

June 26, 2011 in Special Education Law | Permalink | Comments (0)

Administrative decision to be reconsidered after court finds that not all of the arguments of the petitioner were considered by the hearing officer

Matter of Cohen v New York State & Local Employees' Retirement Sys., 2011 NY Slip Op 01109, Appellate Division, Third Department

This decision by the Appellate Division illustrates the importance of the administrative hearing officer considering, and ruling on, all of the arguments and theories submitted by a petitioner in the course of an administrative hearing.

Morton A. Cohen, Esq., was employed as an Administrative Law Judge by the New York City Parking Violations Bureau [PVB] from 1998 to 2006.

In 2007, Cohen, then a member of the New York State Employees’ Retirement System [ERS], attempted to "buy back" his time with the PVB for members service credit in ERS.

An ERS Hearing Officer found that Cohen failed to establish entitlement to prior service credit for his service with the PVB and the State Comptroller accepted the Hearing Officer’s findings and conclusions, prompting Cohen to file an Article 78 petition seeking to overturn the Comptroller’s decision.

The Appellate Division noted that Retirement and Social Security Law §609(b)(1) provides that "[a] member shall be eligible to obtain retirement credit hereunder for previous service with a public employer . . . if such service . . . would have been creditable in one of the public retirement systems of the state."

Accordingly, said the court, Cohen’s entitlement to prior service credit is dependent on whether he was eligible for membership in the New York City Employees' Retirement System [NYCERS]. Further, said the court, the Administrative Code of the City of New York §13-104(1) provides, in relevant part, that membership in NYCERS "shall consist of . . . [a]ll persons in city-service."

"City-Service" is defined as "service, whether appointive or elective, as an officer or employee of the city or state of New York . . . so far as such service is paid for by the city" (Administrative Code of the City of New York §13-101[3][a]).

Noting that the State’s Vehicle and Traffic Law §236(2)(d) provides, in pertinent part, that "hearing examiners [of a parking violations bureau] shall not be considered employees of the city in which the administrative tribunal has been established," the Appellate Division ruled that substantial evidence supports the finding that Cohen was not an "employee" of the City of New York.

However, the court vacated the Comptroller's determination and remit the matter for further findings of fact “because the Hearing Officer failed to address [Cohen’s] claim that he was eligible for prior service credits as an ‘officer.’"

Cohen had specifically argued that, even if not an "employee," he should be considered an "officer" of the City of New York due to the powers, duties and overall nature of his position as a hearing examiner with the PVB.*

The Appellate Division said that “the failure to address [Cohen’s] contention that he was an "officer" of the City of New York prevented it from assessing whether the Comptroller’s denial of Cohen’s application was rational.

NYPPL has summarized other cases involving the denial of claims based on a finding that the individual “was not an employee of a public entity” or was “an employee of a non-public entity” at:


* Unless otherwise provided by law, while not all employees of a public entity are “officers,” “officers” of a public entity are “employees” of that entity.

The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

June 26, 2011 | Permalink | Comments (0)

Saturday, June 25, 2011

Lawyers and Superstition

There is a great article in the Feb. 11, 2011 New York Times about lawyers and superstition. It chronicles how some lawyers eat at the same lunch counter and the same lunch every day of a trial with the hope that this will bring them good luck. 

The amazing thing about this article is that no matter how irrational this behavior might seem, it is true. Many lawyers do follow rituals. Think about it.

Mitchell H. Rubinstein

June 25, 2011 in Lawyers | Permalink | Comments (1)

Friday, June 24, 2011

College Rankings

  1. QS World University Rankings This university rankings rank the top schools worldwide, which is usually divided between U.S. and British schools. This site also breaks down top schools by major, with a heavy emphasis on science and technology schools. These rankings are based on academic peer review and employer reviews.
  2. U.S. News and World Report College Rankings This publication is well-known as an authority for ranking colleges in the U.S., but they do the same amount of work each year to compile a list of the best universities worldwide. It does this by program and also offers college ranking systems for foreign countries such as Canada and Australia and New Zealand.
  3. Princeton Review With the Princeton Review come reviews from college students themselves. This traditional ranking system takes into account student quality life, demographics and the social scene. It also has less traditional rankings including one that may stand out for parents – schools that give you most bang for your buck.
  4. Maclean’s University Rankings This Canadian-based magazine has issued worldwide university rankings for years. Maclean’s talks to students and faculty when compiling their list of top schools. There are also lists for best Canadian university, which takes into account job placement and graduation percentages.
  5. Academic Ranking of World Universities This is one of the most widely recognized and prestigious world rankings for universities. It has top 100 lists for subjects like engineering and technology as well as social sciences. A conference is held every year to help the committee decide on rankings and several other publications site the ACRU as a source when conducting their own rankings.
  6. Times Higher Education Rankings For the past few years, the Times Higher Education Rankings have become of the most definitive sources of ranking world colleges and universities on the web. Schools from 15 countries are featured and rankings are conducted by 50 of the top faculty and education innovators working in higher education. The study goes over 400 schools, ranking them in five primary categories such as teaching and “international mix”.
  7. World University Web Rankings This site ranks universities all over the world and is an invaluable tool for students looking to study outside of the country. The site has top 100 lists for the U.S., Europe and Asia, as well as links to schools who participate in the social media wave. Unlike many authoritative lists that discount religion schools, this site has a section for them too.
  8. Webometrics Rankings of World Universities This site has been publishing bi-annual rankings each year, covering a whopping 20,000 schools all over the world. The list for top 12,000 schools include learning institutions from China and India. Webometrics ranks schools in numerous areas and with such a large amount of schools, works as a great resource for those attending non-Ivy League schools.
  9. Kiplinger World University Rankings This financial site focuses on what you’re getting out of an education at some of the most elite schools in the world. Is any degree worth $100,000 a year? Apparently, the answer is yes and the economists at this site break down what to look for when choosing to attend one of the top schools in the world.
  10. The Journal of Blacks in Higher Education The Journal of Blacks in Higher Education has become one of the premiere college and university rankings systems for schools. It bases all of its rankings on how many black students are admitted to the freshman class and the percentage of blacks that graduate from the school each year. It also takes into account black faculty, including how many on staff have made tenure.

Reproduced from Sir Learnalot's Knowledge Blog

Hat Tip: Julia Murphy

June 24, 2011 in Colleges | Permalink | Comments (1)

Thursday, June 23, 2011

Inadvertent Disclosure

In these days of email and computers, it is not unusal for an attachment to be missed and therefore, certain documents are inadvertentedly disclosed. In New York, the new Rules of Professional Conduct, Rule 4.4(b), requires that attorneys who recieve such documents to notify the sender. As this article points out, this rule raises more questions than it answers and I am sure that we are going to see more cases addressing this important issue.  Download Inadvertent Disclosure

Law review commentary would be most welcome.

MItchell H. Rubinstein

June 23, 2011 in Articles, Law Review Ideas, Litigation | Permalink | Comments (0)

Health insurance coverage for domestic partners

Matter of Putnam/Northern Westchester Bd. of Coop. Educ. Servs. v Westchester County Human Rights Commn, 2011 NY Slip Op 01030, Appellate Division, Second Department

A woman employed by a school district that provides its employees with health insurance coverage through a BOCES "Health Benefits Consortium" had lived with a male partner in a romantic relationship for more than 30 years. Never married, she and her partner registered their domestic partnership with Westchester County in 2006

When the Consortium’s Board voted to extend dependent health care benefits to same-sex domestic partners of “member employees,” the employee asked for "Domestic Partner health coverage" for her opposite-sex domestic partner pursuant to the Plan's "Domestic Partner Policy." The Consortium, however, advised the employee that it had denied her request because its “Domestic Partner Policy” only applied to those in a same-sex domestic partner relationship.

The employee filed a complaint with the Westchester County Human Rights Commission alleging that she had been unlawfully discriminated against on the basis of her sexual orientation and her marital status in violation of the Westchester County Human Rights Law §700.03.

Ultimately the Westchester County Human Rights Commission agreed with the employee, finding that the Consortium had violated §700.03 by unlawfully discriminating against the employee on the basis of her sexual orientation and marital status.

The Commission ruled that the employee was entitled to domestic partner health care benefits for her opposite-sex domestic partner to the same extent "as if he were her same-sex domestic partner." It enjoined the Consortium from maintaining its policy of extending health care benefits to same-sex domestic partners and not to opposite-sex domestic partners and awarded the employee $24,178 in “damages.”

The Appellate Division annulled the Commission’s determination.

As to the employee's claim of discrimination on the basis of marital status, the court held that the employee had “failed to meet her burden of demonstrating a prima facie case of discrimination based upon marital status because eligibility for the domestic partner health care benefits for which she applied ‘[does] not turn on the marital status’ of the employee.”

Turning to the employee's allegation that she had been the victim of unlawful discrimination based on her sexual orientation, the court said that the employee had established a prima facie case by demonstrating that “the provision of health care benefits to same-sex domestic partners and denial of such benefits to her and her opposite-sex domestic partner” sets out an inference of discrimination.

Accordingly, the Appellate Division said that the burden shifted to the Consortium to set forth a legitimate, nondiscriminatory reason for its decision to extend domestic partner benefits only to same-sex couples.

The court decided that the Consortium had, in fact, met its burden by demonstrating that the reason for its offering health care benefits only to same-sex domestic partners is that same-sex domestic partners cannot obtain benefits offered by the Board to an employee's spouse because those in a same-sex domestic partner relationship cannot lawfully marry in this State at this time. The decision notes that the Consortium’s “Domestic Partner Policy” stated that it may be rescinded in the event that same-sex marriage becomes legal in the participant's "state of residence."

This, the Appellate Division concluded, set out a legitimate, nondiscriminatory basis for the Consortium's decision to offer dependent health insurance coverage only in situations involving same-sex couples in consideration of the current impediment to same-sex couples marrying in New York State.

In contrast, participating employers in the New York State Health Insurance Plan [NYSHIP], if the participating employer has elected to offer “domestic partner” health insurance coverage to its employees and their dependants, dependent coverage is available to both an employee’s same-sex domestic partner or an employee's opposite-sex domestic partner.

A domestic partnership, for the purposes of eligibility for coverage in NYSHIP, is one in which the participant and the participant’s partner are 18 years of age or older, unmarried and not related in a way that would otherwise bar marriage, living together, involved in a lifetime relationship and financially interdependent. To enroll a domestic partner in NYSHIP the participant must have been in the partnership for at least six months and be able to provide "proof of residency and financial interdependence."

In addition, persons who are party to a same sex marriage, validly entered into in a jurisdiction where same sex marriage is permitted, are eligible for spousal benefits.

NYSHIP also advises that "Under the Internal Revenue Service (IRS) rules, the fair market value of the health insurance benefits is treated as income for tax purposes when a person who is not a qualified dependent under federal IRS rules is covered in NYSHIP."

NYSHIP also notes that the employee’s extra cost for domestic partner coverage "cannot be paid with pre-tax dollars" and suggests that participants consult with his or her tax advisor concerning how enrolling his or her domestic partner will affect his or her personal income tax liability.

The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

June 23, 2011 in Employee Benefits Law, New York Law | Permalink | Comments (1)

Wednesday, June 22, 2011

Bill Introduced To Eliminate SRO

Under the IDEA, appeals from Impartial Hearing Officer decisions can be filed directly in state or federal court or to a State Review Office and then to court. New York has a two step appeal process which requires that IHO decisions be appealed to the Office of State Review. Recently, a Bill was introduced which would eliminate the SRO, but only allow appeals to proceed directly to federal court. link to the bill 

Mitchell H. Rubinstein

Hat Tip: Developments In Special Ed Law

June 22, 2011 in Special Education Law | Permalink | Comments (0)

Tuesday, June 21, 2011

Searchable New York Appellate Briefs


I just noticed that briefs filed in the New York Appellate Division can be freely searched and downloaded. This is accomplished via the Uniform Court System web site, here. Frankly, I do not know why the other Departments do not make their briefs available. My guess is that they will all be available in a matter of time.

Mitchell H. Rubinstein

June 21, 2011 in Legal Research | Permalink | Comments (0)

NLRB Proposes Major Election Rule Changes

The NLRB proposed a set of new rules for handling representing cases. These new rules are intended to speed up and modernize an election process that we all know to be very flawed. The NLRB itself has written a good summary of the proposed rules, which includes a handy side-by-side comparison with the current process: 

The proposed rules in full:

The most significant changes, as I see it, is the fact that the employer will have to state its position in advance of the R hearing and if an issue is not included in his position statement, it may be barred from making that argument.

Mitchell H. Rubinstein 




June 21, 2011 in NLRB | Permalink | Comments (0)

Monday, June 20, 2011

Pennsylvania school district suspends teacher over blog postings critical of students

Source: CBS Philadelphia, 2/9/11, By Brad Segall and Todd Quinones

Mitchell H. Rubinstein

June 20, 2011 in Education Law | Permalink | Comments (0)

Sunday, June 19, 2011

Arbitrator rules former D.C. schools Chancellor Rhee’s termination of probationary teachers improper

Source: Washington Post, 2/8/11, By Bill Turque

Mitchell H. Rubinstein

June 19, 2011 in Education Law | Permalink | Comments (0)

Saturday, June 18, 2011

School district not entitled to attorney’s fees as a prevailing party under IDEA; parents’ claims neither without foundation nor brought for an improper purpose


R.P. v. Prescott Unified Sch. Dist., Nos. 09-15661/09-16786 (9th Cir. Feb. 4, 2011), is an interesting case. The 9th held that that an Arizona school district was not entitled under the Individuals with Disabilities Education Act (IDEA) to attorney’s fees of $140,000 as a prevailing party on the basis that the parents’ claims under IDEA and related federal disabilities laws were without foundation and brought for an improper purpose. The panel concluded that although the parents failed on the merits of their IDEA and related claims, they were seeking legitimate relief in the form of compensatory education.  Anger, the panel determined, could not serve as improper reason for bringing a legal action. Because the claim raised was not frivolous, and the litigation was not being pursued for purposes of achieving an illegitimate objective (such as harassment, delay or imposing unnecessary costs on the opposing party). 

Mitchell H. Rubinstein


June 18, 2011 in Special Education Law | Permalink | Comments (0)

Friday, June 17, 2011

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Director of the Education and Legal Alliance/Assoc. General Counsel California School Boards Association Sacramento, California
Education Litigation Associate Fagen Friedman & Fulfrost LLP Southern California
Special Education Attorney Harbottle Law Group Orange County, California
In-house Staff Attorney Montgomery County Public Schools Rockville, Maryland
General Counsel Tacoma School District Tacoma, Washington


June 17, 2011 in Lawyer Employment | Permalink | Comments (0)