Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, February 29, 2012

Mobile Tax App

Attorney Matthias M. Edrich developed what appears to be a remarkable product for tax lawyers. It is called Touch Tax which includes the ability to read the entire IRS Code on your Blackberry, Android, I-Phone, or Palm. He describes the product as follows:

TouchTax includes the ability to load and read all 7,700+ sections of the Code and Regulations offline without the need for an Internet connection.  As a result of user feedback, I’ve also added a new keyword search function (which, however, does require an Internet connection) allowing you to search Code and Regulation sections based on exact keyword matches as well as natural language relevancy hits.  TouchTax also permits you to add individual notes to Code and Regulation sections and to email entire Code or Regulation sections along with your notes (which the author thinks is a very convenient feature!).  If you have access to an HP printer with wireless networking, you can also use TouchTax to print a Code or Regulation section.  TouchTax also has a bookmark feature, permitting you to bookmark frequently referenced sections, as well as other relevant links, including a link to lookup IRS tax forms.  If you enjoy using TouchTax, please consider leaving positive feedback in the application market.  Read “Getting Started” on the TouchTax support site for more information on how to get started with your Code and Regulation reading using TouchTax.  Note that the BlackBerry and Android versions are currently being upgraded to contain these features.  The HP/Palm and Apple iPad/iPhone/iPod versions are already up-to-date.

More information and a link to purchase (between 0.99 and 5.99) can be found here.

Mitchell H. Rubinstein

February 29, 2012 in Tax Law Information, Technology | Permalink | Comments (0)

Tuesday, February 28, 2012

The Problem With Student Evaluations

Adjunct Professor Tim Edwards, University of Wisc. Law School sent in an excellent commentary on student evaluations which is applicable to full-time faculty. I could not agree more with the below statements. It is a bit long, but stay with it as it is well worth it:


Student Evaluations

Timothy Edwards

Axley Brynelson, LLP 

I write to share my thoughts about the use of student evaluations to evaluate instructor performance at my Law School.  I have taught here, as an adjunct, for over ten years.  During that time, I have taught Legal Writing, Advanced Legal Writing, Civil Procedure I, Civil Procedure II, Pre-Trial Advocacy and Professional Responsibility.  The purpose of this document is to inspire discussion, not to offend.  

As an adjunct, I am removed from the day to day discussions within the Law School, including those pertaining to student evaluations.  When I started, I was not provided with any training.  I received no feedback regarding my teaching from any of the Faculty Members at the Law School.  I often invited members of the faculty to sit in and evaluate my teaching, but it never happened.  From what I understand, this is common in most law schools that rely on adjuncts, both to teach and to keep institutional budgets in check. I am not suggesting that this approach is wrong, only that it has consequences.     

Absent such an evaluative process, the only feedback that I have received comes from student evaluations.  Most of the time my evaluations are quite good.  More recently (and for reasons that I will explain), my evaluations have suffered, due in some measure to my own actions.  Unfortunately, it appears that these evaluations are the only tool that the Law School relies on in measuring the performance of its adjunct lecturers.  To the extent another metric is being used, I have not been told about it, nor have I seen it in my classroom. 

My thesis, which is not wildly unique, is very simple:  Absent some corroborating tool to evaluate instructor performance, student evaluations are an inherently unreliable and misleading source of information for purposes of measuring the effectiveness of an instructor.  While student evaluations can provide objective information (i.e., whether the instructor is on time, intoxicated, treats the students appropriately or appears to be organized), law students are not equipped to objectively evaluate the value of their own learning experience, or the skills of the instructor, when they complete their evaluations.  Their evaluations should not be used for this purpose.  

From what I understand, one central objective for the Law School is for its instructors to teach the students how to analyze legal problems and prepare them to practice law.  I believe that this requires, among other things, instruction regarding analytical and practical skills that the students will actually use when they become lawyers.  This emphasis has been confirmed by recent studies, and consistent commentary, which criticizes the significant gap between theory and practice that pervades our law schools.  I have observed this gap, and its impact on young lawyers, who are often unprepared for the practice of law when they graduate.  Many students who graduate from the UW Law School do not even know how to cite a case or prepare a basic pleading (as I teach pre-trial advocacy, the blame for some of this should rest squarely on my shoulders).  We have seen this over and over at our Firm, to the point that some of my partners are reluctant to hire from law schools that do not have a comprehensive legal writing program.     

As an adjunct who litigates, full time, in his “real life,” one of my primary goals is to impart some practical knowledge/skills to my students.  Students need to understand that the law, as written, is often applied much differently.  Students need to understand (and acclimate to the fact) that the practice of law is demanding and, in many ways, unforgiving.  Problems do not have easy answers, and they don’t always have “right” answers.  Deadlines become critically important, as is timing.  Confusion is common, as clients, judges, senior partners and opposing counsel often make it difficult to solve problems involving competing interests and effectively represent a client.  This is a very difficult job with tough challenges that cannot always be resolved by reading a book or looking up a statute.  The students need to know what they are signing up for, and to the extent possible, they should be prepared to follow through.  Of course, this should be done at the appropriate time in their education.  

Some basic thoughts: 

  • A law school student (especially in her first year) typically has a very narrow set of objectives.  Generally speaking, she wants to get a good grade.  She wants to know what will be on the test, or what I am looking for in a given writing assignment.  She wants to figure out the easiest possible way to get a good grade by doing well on that task, and she wants immediate, detailed feedback on any work she does because she is scared.  As a general matter, these students believe that grades are everything, and they are rarely interested in whether they are learning how to be a good lawyer unless it helps them get a better grade.  In the meantime, they resist confusion, perceived inconsistency or anything else that detracts them from the most efficient path to a good grade.  While this description is somewhat magnified it is, for the most part, accurate.  The pressure to perform well and secure a good grade defines their objectives in many critical ways. 
  • As a law school instructor, my objectives are much different.  While I want everyone to succeed, I am less concerned about whether the students are confused or struggling to address a problem.  I tell them how litigation works.  We apply the rules to different situations and I often ask them questions that do not have an easy answer—questions that require the application of judgment, not just knowledge.  I require the students to meet deadlines, and I require them to rewrite assignments that are done poorly.  I don’t accept a lot of excuses and I expect a lot from them.  At the risk of being truly unpopular, I now ban laptops unless used for note-taking purposes.  In addition, I no longer buy them pizza.     
  • I also focus on problem solving.  Setting aside the first few weeks, I do not “spoonfeed” information from the book or hold the students’ hands through every single issue in the reading material.  As a result of this, the students become frustrated, but their learning experience is much different.  It seems likely that my evaluations dropped because I am doing a better job of teaching and the students are, in fact, learning more.  In any case, the evaluations tell me nothing about whether I actually did my job. 
  • In years past, I have often received very favorable evaluations.  In every single one of those situations, I tried to align my teaching style with the students perceived expectations and needs.  I “taught to the test” (or in legal writing, spoonfed what I expected on the writing assignment) and did everything I could to placate their needs and expectations (a “consumer” model, if you will).  In retrospect, I view this approach as ineffective, and I view the evaluations as somewhat useless because they appear to reflect the student’s comfort level more than anything else. 
  • Last spring, I taught evidence.  Unfortunately, my work commitments distracted me from the class, and I was frequently absent.  The evaluations were low, and deservedly so.  The students complained about the absences and the resultant disorganization.  This is a perfect example of how student evaluations can be used, in limited instances, to identify objectively verifiable problems with instructor performance.  I deserved the criticism.    

This should not be a popularity contest.  Moreover, the Law School should not rely on student evaluations to determine whether the students are learning basic analytical and practical skills.  While students may have general, verifiable information to share, they are not presently qualified to assess our teaching skills, or for that matter, whether they actually learned anything in our classrooms.  I am not basing this conclusion on a fancy empirical assessment of student evaluations but, rather, common sense, years of teaching experience, and many years of reviewing inconsistent and misguided student evaluations that have done little to assist me as I search for new and more effective ways to teach. 

In addition to the fact that student evaluations cannot provide meaningful information regarding teaching skills or learning, they are also inherently unreliable.  Consider this by applying the Federal Rules of Evidence, which are designed, as a core value, to exclude unreliable information to prove a given assertion.  Setting aside the fact that evaluations may not be probative of teaching skills or learning, many are insulting, false and otherwise prejudicial.  More importantly, student evaluations constitute inadmissible hearsay whose unreliability is compounded by the fact that the out-of-court declarant is completely anonymous.  Finally, no court would ever consider such random aspersions from an unknown declarant as competent character evidence.  Understanding that this comparison is limited because the Law School is not a courtroom, the application of these rules does reinforce a basic point regarding the inherent unreliability of student evaluations.   They would never see the light of day in a courtroom.  

I am not pretending that I have all of the answers, and only write this short paper to make a simple point:  it is not fair or wise to judge adjuncts solely through student evaluations.  The Law School should put other measures in place (peer mentoring, etc.) and provide continued training to all of its adjuncts.  The Law School should not tolerate an environment where students can surf the internet in class (without reading the assigned material) and then anonymously criticize his instructor for not being “engaging” or “organized.”  To bridge the gap between theory and practice, students should be appropriately confronted with the realities of the practice of law, not placated when they are properly challenged.  While this may lead to lower evaluations, it will certainly lead to better lawyers.  

* * * * *



February 28, 2012 in Adjunct Information in General, Law Professors, Law Schools | Permalink | Comments (1)

2d Circuit Upholds Rule That Correspondence Law School Graduates Are Not Eligible To Sit For Bar

Bazadier v. McAlary, ___F.3d___(2d Cir. Feb. 16, 2012), is an important case which has gotten little press. The 2d Circuit upheld New York's bar admission rules which effectively bar graduates of law school correspondence and online schools from sitting for the New York bar examination. The case was brought by a California attorney who was fully licensed.

The decision is unreported and not particularly well written. One would have thought that a decision involving this important issue would have generated more attention by the court. The plaintiff challenged the court rules on Equal Protection and First Amendment grounds. In rejecting those arguments, the court stated:

 First, the district court properly concluded that, because Bazadier’s claims do notimplicate a fundamental right or a suspect class, they should be analyzed under rational basisreview. See Hayden v. Paterson, 594 F.3d 150, 169-70 (2d Cir. 2010). The challenged Rules,Sections 520.3 and 520.5(a) of Title 22 of the New York Compilation of Rules and Regulations,which effectively bar a graduate of a correspondence law school from taking the New York barexamination, are not based upon the content of the instruction provided by a law school and donot favor or disfavor any form of speech on the ideas or views expressed. Rather, the Rules areoccupational regulations that express a preference for one form of legal pedagogy over another.Second, the district court properly concluded that, based on the State’s argument thatcorrespondence-based study offers less assurance that a graduate has received a legal educationthat is adequate for membership to the bar, the Rules had a rational relation to the State’slegitimate interest in protecting the public from an incompetent bar. See In re Griffiths, 413 U.S.717, 725 (1973) (“[A] State [has] a substantial interest in the qualifications of those admitted tothe practice of law . . . .”); see also People v. Alfani, 227 N.Y. 334, 339 (1919) (“The reason whypreparatory study, educational qualifications, experience, examination and license by the courtsare required, is not to protect the bar . . . but to protect the public.”). Bazadier failed to “negativeevery conceivable basis” upon which the Rules could be upheld. Lewis v. Thompson, 252 F.3d567, 582 (2d Cir. 2001) (internal quotation marks omitted). Accordingly, the district courtproperly dismissed Bazadier’s equal protection claim based on his First Amendment right offreedom of speech.Finally, we concluded that the district court properly found that Bazadier had failed tostate a claim based on an infringement of his First Amendment right of freedom of associationfor the reasons stated in its decision and order. Accordingly, because Bazadier’s complaint failed to state a claim for relief, the district court properly dismissed it without first grantingleave to amend.

What I have always found interesting about New York's rules is that you do not even have to be a law school graduate to sit for the bar. As I understand it, you have to only go to one year of law school and then work as an apprentice for a lawyer. I actually know someone who has done this and he is a first rate lawyer. Therefore, I fail to understand the rationale for not allowing correspondence or online classes. If the student can pass the bar, that is what should count in my mind. 

Mitchell H. Rubinstein






February 28, 2012 in Bar Association Matters, Law Students, Lawyer Employment, Lawyers, Legal News | Permalink | Comments (1)

Monday, February 27, 2012

Late Receipt of Excelsior List Is Objectionable


Matter of The Ridgewood Country Club, 357 NLRB No. 181 (Jan. 3, 2012), is an interesting case and probably one of Member Becker's last cases. Under the Board's Excelsior Rule, the Employer is required to transmit a list of voters to the Regional Director who in turn must turn that list over to the Union. The Union must have that list for at least 10 days. Here, the employer timely turned the list over to the Regional Director who did not timely distribute it. The Union had the list for only four days and this was Objectionable and therefore, a basis to set aside the election.

Note, the Board's new election rules change this process by requiring that the employer directly submit the list to the Union.

Mitchell H. Rubinstein

February 27, 2012 in NLRB | Permalink | Comments (0)

Sunday, February 26, 2012

Under California Law, Financially Responsible School District is that of Resident Parent

Divorce presents interesting legal issues concerning the responsibility for education and "who pays". The 9 th Circuit recently affirmed in part and reversed in part a lower court judgment that under California law, the state agency responsible for funding a special education student’s education at an out-of-state residential treatment facility is the school district in which the student’s parent, as defined by California Education Code section 56028, resides. Download Orange County Dept. of Educ. v. CA Dept. of Educ. (9th Cir. 2011)

Mitchell H. Rubinstein

February 26, 2012 in Special Education Law | Permalink | Comments (0)

Saturday, February 25, 2012

Don't Cheat On The Bar

Matter of Dewitt v. NYS Board of Law Examiners, ____A.D.3d___(3rd Dep't. Dec. 29, 2011), is one of those decisions which you cannot make up. A student was found to have cheated on the bar exam and his exam was nullified. Guess what, he sues. The 3rd Department, in rejecting his lawsuit, explained:

 We must disagree with petitioner's contention that the determination is not supported by substantial evidence. Substantial evidence is defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (Matter of Berenhaus v Ward[*2]70 NY2d 436, 443 [1987] [internal quotation marks and citation omitted]; see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179 [1978]; Matter of Goldsmith v DeBuono, 245 AD2d 627, 628 [1997]). Here, a proctor testified that she observed petitioner repeatedly craning her neck to look at the exam of the candidate seated next to her during the multiple choice session on the first day of the exam. The same proctor and her three supervisors all testified that they observed petitioner doing the same thing on the second day. Respondent also offered expert proof of strong statistical evidence that petitioner succeeded in copying answers from the other candidate. Although petitioner denied copying and presented her own expert proof challenging the statistical evidence against her, the resolution of conflicting evidence and determination of the witnesses' credibility are within the sole province of respondent and will not be disturbed (see Matter of Rogers v Sherburne-Earlville Cent. School Dist., 17 AD3d 823, 824 [2005]; Matter of Mirrer v Hevesi, 4 AD3d 722, 723-724 [2004]; Doolittle v McMahon, 245 AD2d 736, 738 [1997]).

The more interesting legal question is whether this applicant should be permitted to sit for the bar examinination in the future. I think not, but who am I? Moral of the story. Don't cheat.

Mitchell H. Rubinstein


February 25, 2012 in Law Students, Lawyers | Permalink | Comments (5)

Federal district court grants preliminary injunction ordering Missouri district to halt Internet-filter system blocking websites with positive LGBT messages

Parents, Families, and Friends of Lesbians and Gays, Inc. v. Camdenton R-III Sch. Dist., ___F. Supp.2d___(W.D. Mo. Feb. 15, 2012), is an interesting case First Amendment case. A federal lower court in Missouri granted a preliminary injunction to a group of organizations whose websites provide resources for lesbian, gay, bisexual and transgender (LGBT) youth. Specifically, the court ordered that the school district disable its internet-filter system that blocked the groups’ websites. The court concluded that the current internet filtering system constitutes viewpoint discrimination. 

Mitchell H. Rubinstein

February 25, 2012 in Discrimination Law, Education Law, First Amendment | Permalink | Comments (0)

Friday, February 24, 2012

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Special Education Associate Fagen Friedman & Fulfrost LLP Los Angeles, California
Special Education Attorneys Harbottle Law Group Orange County, California
Legal Advisor (special education attorney) Illinois State Board of Education Chicago or Springfield, IL
Deputy Counsel for Legal Services Baltimore City Public Schools Baltimore, Maryland
Senior Staff Attorney National School Boards Association Alexandria, Virginia


February 24, 2012 in Lawyer Employment | Permalink | Comments (1)

Thursday, February 23, 2012

Baseball Player Beats Drug Test

Braun Wins on Appeal is an interesting Feb. 23, 2012 New York Times article. A professional baseball player was suspended for a positive test. He challenged the test in arbitration and won. It appears that Major League Baseball could not establish a proper chain of custody and therefore, could not guarantee that the sample was not tampered with. 

This is a fairly common claim in arbitration, one I have even made. However, arbitrators rarely accept this defense. 

Mitchell H. Rubinstein

February 23, 2012 in Arbitration Law | Permalink | Comments (0)

Indiana's New Right To Work Law Is Challenged

The Operating Engineers have filed a federal lawsuit seeking to enjoin the implementation of Indiana's new Right to Work law. Reportedly, the lawsuit is based upon Equal Protection and federal preemption grounds. A USA Today article which provides additional details is available here.

Mitchell H. Rubinstein

February 23, 2012 in Unions | Permalink | Comments (1)

Ever Wonder How Many People Have Undergrad and Grad Degrees?

U.S. Bachelor Degree Rate Passes Milestone is an interesting Feb. 23, 2012 New York Times article. It reports on statistics complied by the U.S. Census which shows the following:

As of last March, 30.4 percent of people over age 25 in the United States held at least a bachelor’s degree, and 10.9 percent held a graduate degree, up from 26.2 percent and 8.7 percent 10 years earlier.

For many years, colleges have enrolled and graduated more women than men, and a historic male advantage in higher education has nearly been erased. In 2001, men held a 3.9 percentage-point lead in bachelor’s degrees and 2.6 percentage points in graduate degrees; by last year, both gaps were down to 0.7 percent.

Mitchell H. Rubinstein

February 23, 2012 in Misc., Non-Legal | Permalink | Comments (0)

Wednesday, February 22, 2012

A formal rule or regulation describing the alleged act of misconduct is not required in order to file disciplinary charges against an employee


Matter of Matter of Foster v Aurelius Fire District2011 NY Slip Op 09483, Appellate Division, Fourth Department
Kevin Foster commenced a CPLR Article 78 proceeding challenging the determination finding him guilty of misconduct based upon actions constituting insubordination and failure to follow the chain of command. The penalty imposed: suspension and then reinstatement subject to a probationary period.
When Supreme Court transferred, the Appellate Division addressed the merits of Foster’s arguments “in the interest of judicial economy.”*

As to the merits of the issues raised by Foster, the Appellate Division rejected his argument that the charge against him should have been dismissed because it failed to specify any rule, regulation, policy or bylaw that he violated.
Noting that Forster had conceded at the administrative hearing that he was aware of Fire District's policies with respect to the chain of command, the court said that record establishes that Foster “deliberately circumvented that chain of command to undermine the authority of his superior officer.”
Citing Murphy v County of Ulster, 218 AD2d 832, leave to appeal denied 87 NY2d 804, the Appellate Division held that under the facts of this case Foster’s contention that “a specific act or misdeed must be embodied in a formal rule or regulation before it may serve as a basis for disciplinary action is unavailing."
The court also rejected Foster’s claim that the penalty imposed, which includes suspension followed by a probationary period, is "so disproportionate to the offense as to
* The Appellate Division commented that as Foster did not raise a substantial evidence issue, Supreme Court erred in transferring the proceeding to it.
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein


February 22, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Tuesday, February 21, 2012

Supremes Issue Important Public Policy Decision

Marmet Health Care v. Brown, 565 U.S. ___ (Feb. 21, 2012), is an interesting case. In a relatively short Per Curiam opinion, the Court reverses the decision of the Supreme Court of Appeals of West Virginia which held that that under the FAA all predispute arbitration agreements that apply to claims alleging personal injury or wrong death against nursing homes were unenforcable. 

The Court held that the West Virgina court misread the Supreme Court decisions under the FAA and that "[w]hen this Court fulfilled its duty to interpret federal law, a state court may not contradict or fail to implement the rule so established." 

What might be of most interest to scholars and lawyers is the Court's statement that the FAA "reflects an emphatic federal policy in favor of arbitral dispute resolution." (citations omitted).

Mitchell H. Rubinstein

February 21, 2012 in Arbitration Law, Supreme Court | Permalink | Comments (0)

Supremes Grant Cert. In Affirmative Action Case

On Feb. 21, 2012, the Supremes granted cert to Fisher v. University of Austin, 631 F.3d 213 (5th Cir.). The docket sheet is here.  The University uses race as one factor in the admissions process. CNN coverage is hereAbove The Law believes that the Court granted cert becaus this is an election year. The question presented is as follows:

Whether this Court's decisions interpreting the Equal Protection Clause ofthe Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306 (2003),permit the University of Texas at Austin's use of race in undergraduate admissions decisions.

Mitchell H. Rubinstein








February 21, 2012 in Discrimination Law, Education Law, Law Review Ideas | Permalink | Comments (0)

Monday, February 20, 2012

Individuals Employed In Policymaking or Advisory Position Not Eligible For Unemployment

Matter of Briggs v. Commissioner of Labor, ____A.D.3d____(3rd Dep't. Dec. 22, 2011), is an interesting case. A City Manager attempted to obtain unemployment benefits after he was terminated by the County Legislature. The Court held that individuals in policy positions are not eligible for unemployment, reasoning:

 Turning to the merits, a claimant is ineligible to file a claim for unemployment insurance benefits when he or she is employed by a governmental entity in a "major nontenured policymaking or advisory position" (Labor Law § 565 [2] [e]; see Matter of Franconeri [New York City Dept. of Personnel—Hudacs], 190 AD2d 970, 971 [1993]). Here, the scope of claimant's duties as County Manager was delineated in both the Sullivan County Code and the Administrative Code and included appointing and supervising department heads, developing policy and procedural recommendations for the County Legislature, performing advisory oversight of the County Auditor and preparing the operating and capital budgets for the employer. As such, the Board's determination that claimant was ineligible to receive benefits was supported by a rational basis (see Matter of Shapiro [Commissioner of Labor], 52 AD3d 1139, 1139 [2008]; Matter of Richman [Commissioner of Labor], 254 AD2d 673, 674 [1998]; Matter of Franconeri [New York City Dept. of Personnel—Hudacs], 190 AD2d at 971; compare Matter of Newell [County of Nassau-Commissioner of Labor], 9 AD3d 559, 560 [2004], lv denied 3 NY3d 610 [2004]).

Mitchell H. Rubinstein

February 20, 2012 in Employment Law | Permalink | Comments (0)

Sunday, February 19, 2012

Questions and Answers on the ADA Amendments Act of 2008 for Students with Disabilities Attending Public Elementary and Secondary Schools

Office of Civil Rights Issues Q and A Guide on ADA Amendents with respect to students with disabilities, here.

Mitchell H. Rubinstein

February 19, 2012 in Discrimination Law, Education Law, Special Education Law | Permalink | Comments (0)

9th Holds Student Did Not Establish Cause of Action For Peer on Peer Harassment

Power v. Gilbert Pub, Sch., ___F.3d____(9th Cir. Oct. 14, 2011), is an interesting case. The Ninth Circuit upheld an Arizona federal district court’s grant of summary judgment in favor of a school district on a student’s claims related to peer sexual harassment.  The student claimed violations of Title IX, as well as retaliation by school officials in violation of her equal protection rights. The panel concluded that the Title IX claim failed because the student was unable to show that the school district was deliberately indifferent to her reports of harassment by fellow students. It also concluded that the student’s evidence fell short of establishing retaliation by school officials for making those reports.

Mitchell H. Rubinstein


February 19, 2012 in Education Law | Permalink | Comments (0)

Saturday, February 18, 2012

Evidence obtained using a global positioning device [GPS] permitted in administrative disciplinary hearing


Matter of Matter of Cunningham v New York State Dept. of Labor, 2011 NY Slip Op 08529, Appellate Division, Third Department
Michael A. Cunningham, an employee of the New York State Department of Labor, was served with disciplinary charges alleging that he had reported false information about hours he had worked on many days and that he had submitted false vouchers related to travel with his vehicle. The disciplinary hearing officer found Cunningham guilty of certain charges and recommend that Cunningham be dismissed from his position. The Commissioner of Labor accepted the hearing officer's findings and recommended penalty and terminated Cunningham from service.
In the course of an investigation which resulted in the disciplinary charges being filed against Cunningham, the State’s Office of the Inspector General used a global positioning system (GPS) device placed on Cunningham’s vehicle and the resulting information was used in the course of Cunningham’s disciplinary hearing as evidence to prove charges that he had reported false information and submitted false vouchers related to his travel using his personal vehicle.*
Cunningham, contending that the GPS devices placed on his car without a warrant constituted an illegal search and seizure under the NY Constitution, appealed and argued that all such information should have been excluded from evidence at the administrative hearing.
One of the significant issues before the Appellate Division was Cunningham’s challenging the GPS evidence used in the disciplinary action. Essentially the Appellate Division had to determine if the admission of evidence obtained through the use of the GPS to prove certain of the disciplinary charges was unduly prejudicial to Cunningham.
The Appellate Division noted that in a case decided after OIG had concluded its investigation of Cunningham, a majority in the Court of Appeals held that, within the context of a criminal investigation, "[u]nder our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause" (People v Weaver, 12 NY3d 433 [2009]).
Concluding that although the GPS evidence gathered in the course of the OIG investigation would have likely been excluded from a criminal trial under Weaver, the Appellate Division said that the standard for using or excluding evidence at administrative proceedings is not controlled by criminal law, citing McCormick, Evidence §173 [6th ed] [supp], in which it was observed that “most courts do not apply the exclusionary rule to various administrative proceedings including employee disciplinary matters”.
The court said that the test applied in a search conducted by a public employer investigating work-related misconduct of one of its employees is whether the search was reasonable “under all the circumstances, both as to the inception and scope of the intrusion.”
Similarly, said the court, when the search was “conducted by an entity other than the administrative body” seeking to use the evidence in a disciplinary proceeding, the rule is applied by "balancing the deterrent effect of exclusion against its detrimental impact on the process of determining the truth."
As in this instance the investigation was refer to the OIG. Under such facts, said the court, “the reasonableness test appears applicable.”
The court concluded that in order to establish a pattern of serious misconduct such as repeatedly submitting false time records in contrast to a mere isolated incident, it was necessary to obtain pertinent and credible information over a period of time. Here the Appellate Division ruled that “obtaining such information for one month using a GPS device was not unreasonable in the context of a noncriminal proceeding involving a high-level state employee with a history of discipline problems who had recently thwarted efforts to follow him in his nonworking-related ventures during work hours.”
Under the circumstances the Appellate Division said that neither OIG nor Department of Labor had acted unreasonably.

* See, also, Matter of Halpin v Klein, 62 AD3d 403. In Halpin the employee was found guilty of disciplinary charges involving absence from work based on records generated by global positioning equipment. Halpin's guilt was established using data from the global positioning system (GPS) installed in his Department-issued cell phone. The Halpin decision is posted on the Internet at:

The Cunningham decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein


February 18, 2012 in New York Law, Public Sector Employment Law | Permalink | Comments (1)

Friday, February 17, 2012

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Special Education Associate Fagen Friedman & Fulfrost LLP Los Angeles, California
Deputy Counsel for Legal Services Baltimore City Public Schools Baltimore, Maryland
Senior Staff Attorney National School Boards Association Alexandria, VA


February 17, 2012 in Lawyer Employment | Permalink | Comments (1)

Thursday, February 16, 2012

Taking Photos Can Be Concerted Activity


NLRB v. White Oak Manor, No. 10-2122 (4th Cir., Oct. 28, 2011), is an interesting case which warrents law review commentary. You also cannot make these facts up. An employee wore a hat to work because she was embarrassed by a bad haircut, but a manager instructed her to remove the hat. The next day she returned to work and began taking photographs of other employees who wore hats and other clothing that violated the dress code. Some of the photos were taken with the photographed employees’ consent, while others were not. Upon hearing complaints from employees about having their photos taken and shared with other employees without consent, the company terminated the employee.  The NLRB and court held that the photographing effort was protected concerted activity because it centered on enforcement of the dress code, a working condition.  The court  wrote that the employee’s “grievance may have started as an individual gripe,” but it “evolved into a campaign to have the dress code enforced in a fair and equitable manner.”  

Mitchell H. Rubinstein

February 16, 2012 in Labor Law, Law Review Ideas, NLRB | Permalink | Comments (0)