Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, March 31, 2012

An appointing authority’s rejection of the disciplinary hearing officer’s recommendation must be supported by substantial evidence in the record


Rauschmeier v Village of Johnson City2012 NY Slip Op 00158, Appellate Division, Third Department
The Village of Johnson City filed disciplinary charges against an employee pursuant to Civil Service Law §75. Following a disciplinary hearing, the Hearing Officer recommended that employee be found not guilty of the charges filed against him and that he be reinstated to his position with full back pay, benefits and seniority.
The Mayor of the Village, with support of the Village Board of Trustees, rejected the Hearing Officer's recommendation, found the employee guilty of misconduct and dismissed the employee from service.
Contending that the Mayor lacked the legal authority to review and reject the Hearing Officer's recommendation, the employee sued, seeking, among other things, an annulment of the penalty imposed by the Mayor. 
Although Supreme Court rejected the employee’s claim that the Mayor lacked the legal authority to review and reject the Hearing Officer's recommendation, a determination sustained by the Appellate Division,* another issue, whether the Mayor’s decision to reject the Hearing Officer's recommendation was supported by substantial evidence, was referred to, and considered by, the Appellate Division.
Addressing the Mayor’s decision to reject the Hearing Officer's recommendation, the Appellate Division said that its review of such a determination was limited to whether it is supported by substantial evidence.
When, however, the appointing authority, rejects a disciplinary recommendation made by a hearing officer after a hearing, the appointing authority must set forth in its decision "findings of fact based on competent proof contained in the record and then employ those findings to arrive at conclusions that are supported by substantial evidence."
The Appellate Division said that the Mayor, in rejecting the Hearing Officer's recommendation, referred to testimony of certain witnesses given at the hearing, but did not specify what in their testimony supported his conclusion.
More is required said the court, “especially since the other evidence introduced at the hearing – all of which is uncontradicted and not in dispute — supports the Hearing Officer's determination.”
Accordingly, the Appellate Division ruled that the Mayor’s “conclusion to the contrary was not supported by substantial evidence,” and thus his determination must be annulled and the employee reinstated to his position with full back pay and benefits.
* The Appellate Division also rejected the employee’s contention that the Mayor acted beyond his legal authority, pointing out that Civil Service Law §75(2) provides that an employee disciplinary proceeding shall be conducted "by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose" and where such a designation is made, the person so designated is to make a record of the hearing  and a recommendation as to the penalty to be imposed in the event the individual is found guilty of one or more charges. The record of the hearing and the recommendation is then to "be referred to [the appointing authority] for review and decision."
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein


March 31, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Friday, March 30, 2012

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Special Education Attorneys Harbottle Law Group Orange County, California
Legal Counsel Aurora Public Schools Aurora, Colorado
Deputy Counsel for Legal Services Baltimore City Public Schools Baltimore, Maryland
Attorney Oregon School Boards Association Salem, Oregon
Director, Council of Urban Boards of Education National School Boards Association Alexandria, Virginia


March 30, 2012 in Lawyer Employment | Permalink | Comments (0)

Thursday, March 29, 2012

6th Circuit holds officials, board members entitled to qualified immunity from equal protection claim in peer racial harassment suit


Williams v. Port Huron Sch. Dist., ___F.3d____ (6th Cir. Jan. 9, 2012), is an interesting decision. The Sixth Circuit, in a 2-1 split, has ruled that individual school administrators and school board members are entitled to qualified immunity from a suit brought by a group of African-American students’ parents alleging that the defendants violated the students’ equal protection rights by acting with deliberate indifference to student-on-student racial harassment. The panel’s majority concluded that the students failed to establish a violation of their constitutional rights based on the school administrators’ deliberate indifference to the harassment because they could not show that the administrators’ response “to the harassment or lack thereof [was] clearly unreasonable in light of the known circumstances.”

The majority also found that the individual school board members enjoyed qualified immunity from the suit “because they had no duty to act as individuals.” Specifically, under Michigan law, the board’s duties are imposed on the entire board, rather than on individual members.

Mitchell H. Rubinstein


March 29, 2012 in Special Education Law | Permalink | Comments (0)

Wednesday, March 28, 2012

Uniform College Applications

Common App. 4.0 is an interesting New York Times article about a uniform college application which is used by 456 colleges and universities. It is due for an upgrade. Will law schools be next??

Mitchell H. Rubinstein

March 28, 2012 in Colleges | Permalink | Comments (0)

Tuesday, March 27, 2012

SDNY Issues Excellent Primer On Duty of Fair Representation

Ramlogan v. 1199, ___F.Supp. 2d _____(S.D.N.Y. Jan. 12, 2012), is an interesting case. The case is also an excellent primer on DFR law. Most interesting is footnote 3 where the court indicated that state law discrimination claims are preempted by federal DFR law. 

Mitchell H. Rubinstein

March 27, 2012 in Duty of Fair Representation | Permalink | Comments (0)

Monday, March 26, 2012

Do College Professors Work Hard Enough??

David Levy, a former Chancellor at New School University, wrote an op ed article in the March 25, 2012 Washington Post where he basically argues that professors get paid too much for the work they do. As he states:

With the 1970s advent of collective bargaining in higher education, this began to change. The result has been more equitable circumstances for college faculty, who deserve salaries comparable to those of other educated professionals. Happily, senior faculty at most state universities and colleges now earn $80,000 to $150,000, roughly in line with the average incomes of others with advanced degrees.

Not changed, however, are the accommodations designed to compensate for low pay in earlier times. Though faculty salaries now mirror those of most upper-middle-class Americans working 40 hours for 50 weeks, they continue to pay for teaching time of nine to 15 hours per week for 30 weeks, making possible a month-long winter break, a week off in the spring and a summer vacation from mid-May until September.

Paul Krugman responds by writing an op ed for the New York Times. Professor Krugman, who teaches a Princeton, take is that "the idea that faculty at big state schools, let alone community colleges, have it easy is just mind-boggling."

    My take on this is that anyone who thinks being a professor is easy because it only involves teaching 3 classes a semester does not know what most professors do. Teaching is only a small part of what they do. To teach 9 hours a week, the professor must prepare. They must also keep abreast of the latest developments in their fields. Many also spend a considerable amount of time doing research, meeting with students and serving on faculty committees. 

Are some professors dead wood. Of course, but some doctors, lawyers, accountants, journalists are deadwood as well. 

Mitchell H. Rubinstein

March 26, 2012 in College Professors | Permalink | Comments (3)

Sunday, March 25, 2012

Rhode Island district court holds that the high school’s display of prayer banner constitutes Establishment Clause violation

Ahlquist v. City of Cranston, ___F.Supp. 2d____ (D. R.I. Jan. 11, 2012), is an interesting case. A federal district court has ordered the immediate removal of a banner displayed on the wall of a high school auditorium on the ground that the display of the banner, which contains a Christian prayer, violates the First Amendment’s Establishment Clause. Relying on the Establishment Clause principle of neutrality in matters of religion, the court analyzed the banner under three different tests (Lemon, endorsement, and coercion) to determine whether its display passed constitutional muster.

Mitchell H. Rubinstein


March 25, 2012 in Constitutional Law, Education Law | Permalink | Comments (0)

Saturday, March 24, 2012

Civil Service Commission’s decision concerning the fitness of a candidate for appointment final unless found irrational or arbitrary Rogan v Nassau County Civ.


Rogan v Nassau County Civ. Serv. Commn, 2012 NY Slip Op 00217, Appellate Division, Second Department 
A candidate in Nassau County”s Police Officer Examination No. 7000 failed to attain a passing score on the physical fitness screening test.
The candidate sue, contending that the Commission acted irrationally or arbitrarily and capriciously in relying upon a proctor's assessment that the candidate failed to complete the number of sit-ups required to pass the physical fitness screening test promulgated by the State’s Municipal Police Training Council.
Supreme Court denied his petition and the Appellate Division affirmed the lower court’s ruling.
The Appellate Division, noting that “An appointing authority* has wide discretion in determining the fitness of candidates,” explained that such discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied.”
A court, said the Appellate Division, “may not substitute its judgment for that of the agency responsible for making the determination and, as long as the administrative determination is not irrational or arbitrary and capricious, [it] may not annul it.”
* Although this decision may give the reader the impression that the Commission was the appointing authority with respect to police officers, a Civil Service Commission is the agency responsible for determining the eligibility of candidates seeking appointment to positions in the competitive class of the classified service by examination and then certifying those found eligible and qualified to the appointing authority for selection for appointment to the position. [People v Gaffney, 201 NY 535]
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein


March 24, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Friday, March 23, 2012

Lawyer Jobs

School Law Jobs
Job Title Employer Job Location
Special Education Attorneys Harbottle Law Group Orange County, California
Legal Counsel Aurora Public Schools Aurora, Colorado
Deputy Counsel for Legal Services Baltimore City Public Schools Baltimore, Maryland
Attorney Oregon School Boards Association Salem, Oregon


March 23, 2012 in Lawyer Employment | Permalink | Comments (1)

Thursday, March 22, 2012

Scheduling a disciplinary hearing after charges have been served on the employee a “discretionary act”


Clark v Schriro, 2012 NY Slip Op 00118, Appellate Division, First Department
Jesse Clark filed a CPLR Article 78 petition “in the nature of mandamus” seeking to compel the New York City Office of Administrative Trials and Hearings [OATH] to hold a disciplinary hearing on charges that had been filed against him by the NYC Department of Correction. Supreme Court dismissed Clark’s petition and the Appellate Division affirmed the lower court’s decision.
In the words of the Appellate Division, “Supreme Court properly found that since respondents were not required to provide [Clark] with a hearing within a specifically prescribed period, but only within a "reasonable time" (New York City Charter §1046[c]), their failure to do so for more than a year after charging [Clark] with misconduct did not constitute failure to fulfill a nondiscretionary duty or perform a purely ministerial act.”
Should an employee be suspended from his or her position without pay upon his or her being served with disciplinary charges, however, typically the individual must be restored to the payroll after a specified period of time if such action is mandated by law [see, for example, Civil Service Law §75.3] or as required by a collective bargaining agreement.
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein


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

Wednesday, March 21, 2012

New York Law School Wins Round One In Stunning Fraud Case Brought By Former Students

Gomez-Jimenez et al v. New York Law School, ___Misc. 3d____, 2012 NY Slip Op (N.Y. Co. March 21, 2012), is a case that every, and I mean every, law school adminstrator must read. In fact, prospective law students, as well as law professors in general, should review this decision as well. 

The case was brought by nine former law students. Interestingly, they did not challenge the quality of the education they received. Instead, they alleged that New York Law School engage in unfair and fraudlent practices, fraudulent misrepresentation and negligent misrepresentation. 

In a scholarly opinion, full of cites to articles and an exhaustive review of case law, the court in a thirty-page decision dismisses each claim one by one and grants New York Law School's motion to dismiss.

Plaintiffs' theory was that New York Law School published misleading employment statistics which plaintiffs' relied upon. In rejecting this claim, the court viewed the plaintiffs as educated consumers and pointed to the poor job market for lawyers as reflected in their papers.

Apparently, plaintiffs believe that New York Law School statistics were misleading because it included all employment whether or not someone was working in a legally related job and whether the person was working full-time, temporary or part-time. Their claim is a bit hard to determine from a bare reading of the decision. In any event, the court concluded that New York Law School did not make any misrepresentation because they did not state in their published statistics that these statistics only represented full-time employment.

Frankly, I believe that is quiet a stretch. It is entirely reasonable for a law student to assume that statistics published on a school web site refer to full-time employment. Most law students do not go to law school in order to seek part-time employment when they graduate.

The court also gives significant weight to U.S. News Law School rankings and assumes that they are accurate. The court explains that because New York Law School does not rank high, plaintiffs could have evaluated this when deciding whether or not to chose New York Law School. The court states:

"One would think that reasonable consumers, armed with publicly available information from U.S. News that plaintiffs cite, thus would avail themselves of plaintiffs' own logic as stated in their complaint when it comes to evaluating their chances of obtaining the full-time legal job of their choice within nine months post-graduation."

What!! Even assuming that U.S. News is the bible, and it surely isn't even close, the U.S. News rankings is based upon several criteria. The U.S. News is not a placement bulletin. Also, the court is assuming that higher ranked schools have better placement rates. That may be true, but courts should not be in the business of making assumptions.

The court also errs, in my view, by stating that "before 2008 there was a seeming abundance of opportunities for lawyers at all points of entry into the profession, regardless of the law school one attended. . . " The court does not cite any authority for this proposition. I have been a lawyer for quite some time and the market has been quite difficult for lawyers as well as law students for quite some time-both before and after 2008. 

The court's most significant error is that because of the changing nature of legal practice "[m]andatory retirement ages are coming down." Excuse me, but mandatory retirement has been per se unlawful under the ADEA for years. 

To be fair, the also court makes some vaild points about the Great Recession of 2008 which is when most plaintiffs were in school. The decision is also well written. Plaintiffs also had a high bar to cross given the elements of each cause of action they had to prove.

I do not express any opinion about whether or not any of these mistakes are material enough to warrant an appeal. I have been an adjunct  faculty member at New York Law School for about 7 years and I do not know any of the players involved in this case-at least I don't think so. I can honestly say that everyone I ever met at New York Law School, including faculty and students, always appeared sincere and honest. I do not believe for one minute that New York Law School would intentionally or negligent mislead any student.

Mitchell H. Rubinstein   


New York Law School Press Release, here

New York Law Journal Article, here (registration required)


March 21, 2012 in Law Schools, Law Schools, News, Law Schools, Rankings, Law Students, Lawyer Employment | Permalink | Comments (7)

Tuesday, March 20, 2012

Unpaid Internships and Employee Status

These Are Not Your Father’s Internships is an interesting Feb. 6, 2012 article from the New York Times. It questions whether employers are abusing students by utilizing unpaid interns as opposed to employees. The legal question is whether an intern is an employee. Much has been written about this issue. In my article on volunteers, I discuss this issue as well.

Mitchell H. Rubinstein


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

Monday, March 19, 2012

Employees Being Fired For Wearing Orange In Protest

Here is a good law school hypo, but it is based on real facts. A group of workers worn orange in protest of their poor working conditions and were fired. A Newspaper article describing the story is available here

Ok students, is this lawful??

If Florida is an employment at will state, the answer is that they do not need cause to terminate. But, concerted activity for mutual aid and protection is considered protected activity under Section 7 of the NLRA whether or not the workers are unionized. Remember the Washington Aluminum case from 1962? 

The lesson to be learned is that the NLRA applies to non-union workers as well as union workers. That fact was once described in an NLRB decision as one of the best kept secrets in labor law. 

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

March 19, 2012 in Employment Law | Permalink | Comments (1)

Sunday, March 18, 2012

Federal District Court Grants District Summary Judgement On Peer on Peer Harassment Case

P.K. v. Caesar Rodney High Sch., ____F. Supp. 2d____ (D. Del. Jan. 27, 2011), is an interesting decision.  A lower court has granted a school district summary judgment, rejecting a Title IX claim brought by a student and her mother based on student-on-student sexual harassment. The court concluded that the plaintiffs had failed to show that the defendants were “deliberately indifferent” to the student-on-student sexual harassment the student experienced or that the defendants’ responses to known instances of harassment were “clearly unreasonable.”

Mitchell H. Rubinstein

March 18, 2012 in Education Law | Permalink | Comments (0)

Saturday, March 17, 2012

Student Fails To Establish Peer On Peer Harassment Claim Under ADA or Rehab Act

Weidow v. Scranton Sch. Dist., ____F.3d____ (3d Cir. Feb. 7, 2012), is an interesting case. The Third Circuit, in an unreported decision, ruled that a former high school student subjected to student-on-student harassment failed to state valid claims of discrimination against a Pennsylvania school district under the Rehabilitation Act and the Americans with Disabilities Act (ADA). The panel concluded that the former student failed to present evidence sufficient to show that her bipolar disorder is a impairment that substantially limits a majority activity. This case was filed before the 2009 amendments to the ADA.

Mitchell H. Rubinstein


March 17, 2012 in Education Law | Permalink | Comments (0)

Friday, March 16, 2012

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Special Education Attorneys Harbottle Law Group Orange County, California
Legal Counsel Aurora Public Schools Aurora, Colorado
Deputy Counsel for Legal Services Baltimore City Public Schools Baltimore, Maryland
Attorney Oregon School Boards Association Salem, Oregon


March 16, 2012 in Lawyer Employment | Permalink | Comments (0)

Thursday, March 15, 2012

The “dual employers” of a volunteer firefighter injured when fighting a fire are both liable for the payment of workers’ compensation benefits


Levy v Plainview Fire Dept., 89 AD3d 1331

Danny Levy, a member of the Plainview Fire Department, submitted a volunteer firefighters' claim for benefits based upon injuries allegedly sustained while assisting the City of New York Fire Department at the World Trade Center disaster in September 2001.
The Workers' Compensation Board awarded claimant benefits, finding dual liability between the Plainview Fire Department and the self-insured employer, the City of New York, on the ground that Levy's activities at ground zero were directed and controlled by both entities. Rejecting the City’s appeal, the Appellate Division affirmed the Board’s ruling.
The court noted that the General Municipal Law §209-i 1) provides that "Whenever a volunteer [firefighter] is within this state, but outside the area regularly served by the fire company or fire department of which [the volunteer] is a member and has knowledge of a fire or other emergency at or near the place where [the volunteer] is for the time being, such volunteer . . . may report to the officer in command of the paid or volunteer fire company or paid or volunteer fire department, or in command of one of the paid or volunteer fire companies or one of the paid or volunteer fire departments, engaged in the handling of any such fire or other emergency and, on an individual basis, offer his [or her] services to assist such fire company or fire department. After [the volunteer's] services are so accepted, the volunteer . . . shall then be entitled to all powers, rights, privileges and immunities granted by law to volunteer [firefighers] during the time such services are rendered, in the same manner and to the same extent as if [the volunteer] were a volunteer member of the fire company or fire department which he [or she] is assisting, including benefits under the volunteer [firefighters'] benefit law."
The Appellate Division said that the record establishes that Levy initially volunteered on his own at ground zero on September 11, 2001. Thereafter, on September 12, 2001, claimant reported to the Plainview fire house where the fire chief requested volunteers to assist in the rescue and recovery efforts at ground zero. Levy testified that over the course of the next two weeks, he reported to the City's headquarters with other Plainview firefighters who volunteered and that their activities were then directed and controlled by the City.
Accordingly, the court held that substantial evidence supported the Board's factual conclusions regarding Levy’s dual employment.
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein


March 15, 2012 in Public Sector Employment Law | Permalink | Comments (1)

Wednesday, March 14, 2012

College Student Suspended For Writing About His "Hot Teacher"

On February 10, 2012, Adjunct Law Prof Blog covered a story about a college student who wrote in an essay that he was attracted to his professor, here. That blog entry generated a significant amount of commentary, including commentary from the student and other university officials.

The student appealed his suspension and recently Oakland Community College in Michigan denied his appeal and upheld a three semester suspension from school together with a requirement to take a class in sensitivity training. The Foundation of Individual Rights in Education or ("FIRE"), includes a significant amount of details about this case, here.   FIRE describes the controversary, in part, as follows:

Corlett's ordeal began in early November 2011 when he submitted his writing journal to his Advanced Critical Writing professor. Her course materials describe this "daybook" as "a place for a writer to try out ideas and record impressions and observations," and state that it should contain "freewriting/brainstorming" and "creative entries." According to Corlett, he verified with his professor that he could write about anytopic. In other assignments in the course, he had written on sexual topics and received high grades.

One entry in Corlett's journal, titled "Hot for Teacher," quotes the 1984 Van Halen song of the same name and tells a story of being worried about being distracted in class by attractive professors. A separate September 23 entry states that his professor is like Ginger from the television series Gilligan's Island, while another professor is like the character Mary Ann.

On November 29, his professor announced to some of her colleagues, "Either Mr[.] Corlett leaves campus or I do." On December 7, Dean of Students and Assistant Vice President of Student Affairs Glenn McIntosh and Vice President for Student Affairs & Enrollment Management Mary Beth Snyder pressured Corlett to withdraw from his winter semester classes.

Interesting, Oakland County Community College features this student on its web site as one of the winners of a 2009-2010 student essay writing competition, here

I would be interested in knowing whethe or not the student plans on appealing his suspension in court. In New York, courts pay a significant amount of deference to school administrators and do not second guess their decisions. I assume Michigan law is similar.

Mitchell H. Rubinstein


March 14, 2012 in Education Law | Permalink | Comments (2)

Tuesday, March 13, 2012

Lawyer Sick Leave Abuse

One of the most common forms of employee discipline involves time and attendance issue; more specifically sick leave abuse. This occorrus, for example, when the employee takes a sick day when he or she is not actually sick.

Well, what if a lawyer "plays' sick to get our of a trial date?? He or she can be in trouble-big trouble as this Jan. 12, 2012 article from Findlaw documents. A judge has threatened to impose a $1,000 fine and contempt of court on a lawyer  for doing just that. The lawyer denies that he abused sick leave or committed any form of misconduct.

Mitchell H. Rubinstein

March 13, 2012 in Arbitration Law, Lawyers | Permalink | Comments (1)

Monday, March 12, 2012

2d Circuit Issues Important NLRB New Process Decision


NLRB v. County Waste, ____F.3d____(2d Cir. Jan. 6, 2012), is an important post-New Process Steel case. The basic issue is whether the same two members who sat on the pre-invalid New Process panel can sit on the post-New Process Steel three person panel. The 2d held that they can. The court reasoned:

County Waste contends that pursuant to New Process Steel, the August 2010 Decision isunenforceable since two of the Board members that entered that decision also participated in thepanel that issued the February 2009 Decision.  This argument is unavailing.  In New ProcessSteel, the Supreme Court held that section 3(b) of the NLRA as amended by the Taft-HartleyAct, 29 U.S.C. § 153(b) (“Section 3(b)”),3 which sets out the Board’s quorum requirements and-6-delegation procedures, does not permit a two member panel of the Board to decide a case whenthe Board itself consists only of two members, 130 S. Ct. at 2638.  Nothing in the text of Section3(b) or the Supreme Court’s reasoning in New Process Steel addresses or even implicates howthe Board should handle cases that are vacated and remanded.  Moreover, it is well-establishedthat even a reversal on appeal does not preclude an adjudicator from deciding the same questionon remand.  Withrow v. Larkin, 421 U.S. 35, 57 (1975)  Here, it is undisputed that the August2010 Decision was issued by a three member panel of the Board.  Accordingly, the Board actedwithin its authority under Section 3(b).

March 12, 2012 in Labor Law, NLRB | Permalink | Comments (1)