Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, April 28, 2012

Illinois Supreme Court rules that state law does not give laid-off tenured teachers substantive or procedural rights related to rehiring

Chicago Teachers Union, Local No. 1 v. Board of Educ. of the City of Chicago, 2012 IL 112566 (Ill. Feb. 17, 2012), is one of those cases which does not make any sense-at least from a practical point of view. The Illinois Supreme Court held (5-2), that under sections 34-18 (31) and 34-84 of the Illinois School Code [which address tenured teacher lay-offs in the Chicago school district] laid-off tenured teachers do not have the right to be rehired after an economic layoff, or the right to certain procedures during the rehiring process. 

Mitchell H. Rubinstein


April 28, 2012 in Education Law | Permalink | Comments (0)

Friday, April 27, 2012

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


April 27, 2012 in Lawyer Employment | Permalink | Comments (0)

Thursday, April 26, 2012

Commissioner’s holding office for a specified term may only be removed during such term for cause


Sedacca v Kelly, 2012 NY Slip Op 01319, Court of Appeals

The Court of Appeals has ruled that the Nassau County Executive did not have the authority to terminate Commissioners of the Nassau County Assessment Review Commission (ARC), in the absence of cause, prior to the expiration of their fixed, statutory terms. 
The ARC consists of nine commissioners appointed by the County Executive subject to approval by the County Legislature and have staggered five-year terms and that no more than six of the commissioners can be enrolled voters of the same political party.
The outgoing Nassau County Executive had appointed six ARC Commissioners. The counsel to the then-newly elected County Executive sent letters to each of the nine commissioners informing them that they were being removed from office pursuant to §203 of the Nassau County Charter. The letter stated that the commissioners had an opportunity to be heard, if they so desired. 
The Court of Appeals noted that the Nassau County Charter vests the County Executive with authority to appoint members of county boards and commissions, subject to approval of the County Legislature, citing Nassau County Charter § 203 [1]). Concomitantly, said the court, "[t]he County Executive may at any time remove any person so appointed; provided that in the case of members of boards and commissions appointed for definite terms, no removal shall be made until the person to be removed has been serv[ed] with a notice of the reasons for such removal and given an opportunity to be heard, publicly if he or she desires, thereon by the County Executive. The decision of the County Executive shall be final." 

Nassau County argued that, according to the plain language of the County Charter, the County Executive was within his authority to terminate Commissioners notwithstanding the absence of any wrongdoing on their part and regardless of the statutory term of office “in order to appoint individuals of his choosing.”
The Court of Appeals said that, in its view, the County’s argument “is inconsistent with the salutary purpose of the legislation at issue.” The court explained that “Although Real Property Tax Law §523-b does not set forth any procedure for the removal of commissioners, the statute demonstrates the legislative intent to protect the ARC from political influence. It is evident that the fixed, staggered terms of office along with the requirement that all of the commissioners must not be members of a single political party, are designed to promote stability of membership and political diversity. Notably, the five-year term of office exceeds the length of the County Executive's own. This design may frustrate the most recent expression of the electorate's mandate, but it is meant precisely to avoid a wholesale change of membership of the ARC upon the installation of each successive administration.”
As Nassau County’s Charter makes clear that when members of a commission appointed for a fixed term are removed, the "reasons for such removal" must be provided. "Reasons," in this context said the Court of Appeals, can reasonably be read as a synonym for "cause." Thus §203 permits removal of commissioners serving fixed terms for cause, but not otherwise. The court ruled that "the Real Property Tax Law §523-b and County Charter §203 are not incompatible, and read them together "to accomplish the clear legislative intent."
Although the Court of Appeals said that the commissioners, as County employees, are not protected by §36 of Public Officers Law,* it then noted that “it is instructive that a finding of some type of misconduct would be required to remove members of the similarly situated Board of Assessment Review (see 4 Ops Counsel SBEA No. 27 [1974])”**.
The court then observed that “Removing the Commissioners without cause under County Charter §203 would frustrate the legislative intent by nullifying the requirements of the RPTL and rendering the staggered statutory terms of office in RPTL 523-b superfluous. \”
Thus, said the court, under the circumstances the commissioners are not essentially at-will employees, subject to termination for any reason whatsoever.
As to the several commissioners’ claim that that they were entitled to attorneys' fees they incurred in the course of this litigation, the Court of Appeals disagreed, holding that although the County is required to "provide for the defense" of an employee involved in a civil action arising out of an act or omission that occurred during the scope of his or her employment, in this instance the “employees commenced the action.” Accordingly, there is no obligation on the part of the County to pay for their "defense."
* §36 of the Public Officers Law provides for the removal of public officers "for any misconduct, maladministration, malfeasance or malversation in office."
** Office of Real Property Tax Services, New York State Department of Taxation and Finance. Opinions of Counsel are posted on the Internet at:
The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

April 26, 2012 in Public Sector Employment Law | Permalink | Comments (1)

Breaking News NLRB Acting G.C. Issues Guidance On Union Elections

The Acting General Counsel just issued a 24 page Guidance Memo on Representation Case Changes, GC-12-04 (April 26, 2012),  Download Guidance memo GC 12-04 4.27.12

Mitchell H. Rubinstein

April 26, 2012 in Law Review Ideas, NLRB | Permalink | Comments (0)

Wednesday, April 25, 2012

Are Law Reviews Worth It?

The High Bench v. the Ivory Tower is an interesting Feb. 1, 2012 ABA Journal article. Anyone interested in legal scholarship should read it. It discusses whether legal scholarship means anything today. It points to recent statements by Chief Judge John Roberts which criticizes law reviews for focusing on theory as well as recent studies which show that law reviews are cited by courts. 

I believe that there is a happy medium here. Law review scholarship is worth it, but it needs to change. I see very little utility in professors focusing on legal theory. They need to write about issues that litigants, lawyers and judges care about. The goal of a law review writer should be to be cited by a court. Sadly, today, too often the goal is to be cited by other law review commentators.

Mitchell H. Rubinstein 

April 25, 2012 in Law Review Articles | Permalink | Comments (0)

Tuesday, April 24, 2012

Another Story On Unpaid Intern Abuse

Get Your Own Damm Coffee is an interesting Feb. 13, 2012 article from Slate where it highlights the abuse some interns may face because they are not employees. The article discusses the FMLA, but if interns are not employees they would not be covered under most employment laws such as Title VII, ADA, FMLA and the NLRA. Readers will recall, that I discussed this issue in detail in my article on volunteers a few years back.

Mitchell H. Rubinstein

April 24, 2012 in Employment Law | Permalink | Comments (0)

Monday, April 23, 2012

Failure To Work Over-Time Is Not Misconduct If Medically Necessary

Matter of Lewis v. Commissioner of Labor, ____A.D3d____(3d Dep't. Feb. 9, 2012), is an important decision. An employee was discharged for refusing to work over-time, but he had medical documentation advising her not to work over-time. In finding no misconduct for unemployment purposes, the court stated:

Whether an employee's failure to work the required hours rises to the level of disqualifying misconduct is a factual issue for the Board to resolve and its determination will not be disturbed when supported by substantial evidence (see Matter of Buyukcekmece [Abigail Kirsch at Tappan—Commissioner of Labor], 82 AD3d 1400, 1400 [2011]; Matter of Anumah [Commissioner of Labor], 60 AD3d 1216, 1217 [2009], lv denied 13 NY3d 706 [2009]). Here, claimant's orthopedic doctor issued notes that indicated that claimant was medically restricted with regard to the amount of overtime she could work during the relevant period, and the record [*2]demonstrates that the employer had been notified of those restrictions. Inasmuch as it has been held that the loss of employment attributable to substantiated health problems will not constitute disqualifying misconduct, we decline to disturb the Board's decision (see Matter of Buyukcekmece [Abigail Kirsch at Tappan—Commissioner of Labor], 82 AD3d at 1400; Matter of Sunderland [Nassau County Med. Ctr.—Roberts], 121 AD2d 779, 780 [1986]; Matter of Curato [Ross], 70 AD2d 719, 720 [1979]).

Mitchell H. Rubinstein

April 23, 2012 in Employment Law | Permalink | Comments (0)

Sunday, April 22, 2012

2 Million Dollar Verdict In ADEA Retaliation Case Upheld


Munoz v. Sociedad, ___F.3d___(1s Cir. Jan. 12, 2012), is an interesting case. I bring it to your attention because it illustrates how important retaliation causes of action are under the ADEA as well as other statutes. In this case a 2 million dollar verdict was upheld. A management lawyer has commented that this decision should "scare" employers. My take on this is if employers follow the law, they have nothing to fear.

Mitchell H. Rubinstein

Hat Tip: Employment and Labor Insider

April 22, 2012 in Employment Discrimination | Permalink | Comments (0)

Saturday, April 21, 2012

The Open Meetings Law requires the public body to indicate the particular reasons for its going into an executive session


Zehner v Board of Educ. of Jordan-Elbridge Cent. School Dist., 2012 NY Slip Op 00623, Appellate Division, Fourth Department
David Zehner alleged that the Jordan-Elbridge Central School District had engaged in a pattern of violating New York's Open Meetings Law (Public Officers Law §100 et seq.) with respect to its going into executive session. Supreme Court agreed.
Affirming the lower court’s ruling, the Appellate Division said that the Open Meetings Law [OML] provides that "Every meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with [Section 105]" Here, said the court, the school district had violated the OML on three occasions.
Although the OML does allow a public body to go into executive session, the Appellate Division noted that “the topics that may be discussed [in such an executive session] are circumscribed by statute and include matters involving public safety, proposed, pending or current litigation, collective bargaining, and matters concerning the appointment or employment status of a particular person.”
The problem underlying this action was that the school district “merely reciting statutory categories for going into executive session without setting forth more precise reasons for doing so.”  Citing Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, the Appellate Division explained that §105 is to be “strictly construed,” and the real purpose of an executive session will be carefully scrutinized "lest the … mandate [of the Open Meetings Law] be thwarted by thinly veiled references to the areas delineated thereunder."
Noting that the Open Meetings Law provides that "costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party,” the Appellate Division said that it did not perceive any abuse by the Supreme Court, in it's exercise of its discretion, awarding attorney fees to Zehner.
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein


April 21, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Friday, April 20, 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


April 20, 2012 in Lawyer Employment | Permalink | Comments (0)

Thursday, April 19, 2012

NLRB Rejects Claim That President Obama's Recess Appointments Were Improper

Center for Social Change. 358 NLRB No. 24 (March 29, 2012), is a case we are going to hear more about. There, in a test of certification case, the Board rejected a claim that it did not have authority to act before the President's recess appointments were improper. The Democratic majority reasoned that there is a presumption of regularity in the absence of clear and convincing evidence to the contrary. The claim was that the recess appointments were improper because the Senate was still in session. The Republican minority would simply hold that it does not have jurisdiction to entertain this. The Replican controlled Senate, according to Politico, is set to challenge these appointments as well, here.

Law review commentary on this important issue would be most welcome.

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog 

April 19, 2012 in Law Review Ideas, NLRB | Permalink | Comments (0)

Wednesday, April 18, 2012

Employee's inability to provide the necessary urine sample for a drug test because of a medical condition trumps allegations of misconduct


NYC Department of Sanitation v E.L., OATH Index #2107/11
The Department of Sanitation charged a sanitation worker, E.L., with failure to complete a federally mandated drug test in violation of Rule 2.5 of the Department’s Code of Conduct. 
E.L. had appeared for the test and was cooperative but was unable to provide the required amount of urine in the three hours he was given. He subsequently submitted a note from his urologist, explaining that E.L. had urological conditions that could have prevented him from urinating. Later E.L. was diagnosed as having prostate cancer. 
The Medical Review Officer (MRO), who had no specialized knowledge in urology, ruled that the note submitted by E.L.’s physician were insufficient to excuse for E.L.’s failure to provide a sufficient sample.  In addition, the MRO refused to consider E.L.’s prostate cancer as that condition was not diagnosed within the five-day time period the regulations gave test subjects for providing a note. 
As a result, the MRO marked respondent as having refused to take the drug test and the Department initiated disciplinary action against E.L. 
OATH Administrative Law Judge Kara J. Miller found that both the test collector and the MRO failed to follow federal drug testing procedures, and these procedural errors mandated cancellation of E.L.’s test. 
In addition Judge Miller ruled that even absent the necessity for cancellation, the charges against E.L. should be dismissed as his actions were not willful and the evidence established that he was physically unable to provide the required amount of urine when asked to the urine sample requested and dismissed the charges the Department had filed against E.L.  
The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

April 18, 2012 in Arbitration Law, Public Sector Labor Law | Permalink | Comments (3)

Tuesday, April 17, 2012

Breaking News-NLRB Postpones Employee Rights Notice Rule

On April 17, 2012, the NLRB issued a Press release indicating that it will postpone the Employee Rights Notice posting requirement, here. This requirement was due to take effect April 30th and the D.C. Circuit had already issued an order enjoining its enforcement.

Mitchell H. Rubinstein

April 17, 2012 in NLRB | Permalink | Comments (0)

Monday, April 16, 2012

Kentucky DOE drafting regulations to limit use of restraint and seclusion

 Associated Press (AP) reports that Kentucky education officials are are acting to limit the use of restraint and seclusion on public school students after citing two schools for violating the rights of three disabled students who were subjected to the practices. In all three cases, the schools were found to have violated the students’ right to a free, appropriate public education under the Individuals with Disabilities Education Act. All have been ordered to follow a state-imposed plan to remedy the situation, including providing specially-designed instruction for the affected students. Failure could result in loss of federal and state funding.

Source: Bowling Green Daily News, 1/20/12, By AP

April 16, 2012 in Special Education Law | Permalink | Comments (0)

Sunday, April 15, 2012

New York Appellate Court Issues Major Employment At Will Decision and Essentially Implies Public Policy Exception

Villarin v. Rabbi Haskel Lookstein School, 2012 NY Slip Op. 02786 (1st Dept. April 12, 2012), is a significant case. 

New York is one of the most conservative employment at will states. The Legislature enacted Labor Law Section 740 to protect whisleblowers, but it has been interpreted very narrowly by courts to require an ACTUAL violation of law Bordell v. GE, 88 NY 2d 869 (1996) AND illegal activity that creates a substanal and specific danger to public health. The reporting of fraud and religious harassment of an individual has been held not to be within the protection of this statute. Leibowitz v. Bank Leumi, 152 A.D. 2d 169 (2d Dep't. 1989). 

Villarin is significant because the majority holds that a school nurse at a private school is protected from being terminated because she reported child abuse. What is sigificant about this case is that the alleged abuse only concered one student. A two judge dissent felt that because the public policy did not involve a wider issue applicable to public health in general,(because only one student was involved), that this statute was not applicable.

Since two judges dissented, under New York law, this case can be appealed to the New York Court of Appeals as a matter of right. If the decision stands, like it unquestionably should, New York would essentially be recognizing a public policy exception to the employment at will doctrine at least where an actual violation of law occurred because every case would involve at least a single individual. 

Stay tunned. 


April 15, 2012 in Employment-At-Will & Exceptions, Law Review Ideas, New York Law | Permalink | Comments (0)

Saturday, April 14, 2012

5th Circuit again determines school board members not entitled to immunity from employee retaliation claim


Juarez v. Anguilar, ____F.3d____ (5th Cir. December 22, 2011), is an interesting case. The school board members, all named defendants in a retaliation suit brought by the school district’s former chief financial officer (CFO), argue that the district court should have granted them summary judgment, as they are entitled to qualified immunity.

As it had determined in the previous decision in September 2011, the panel ruled that precedent from the Fifth Circuit as well as the Supreme Court clearly indicate that a school board’s informal actions can result in liability. This precedent was sufficient to provide the board members with fair notice that even an informal decision to retaliate against the former CFO would violate his First Amendment rights.  Accordingly, found the panel, the district court did not err when it denied summary judgment on the board members; qualified immunity defense.

Mitchell H. Rubinstein


April 14, 2012 in First Amendment | Permalink | Comments (0)

Friday, April 13, 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


April 13, 2012 in Lawyer Employment | Permalink | Comments (0)

Thursday, April 12, 2012

Finding there is a qualified privilege with respect to statements made after a whistle-blowing event defeats an employee's claim of slander


Cusimano v United Health Servs. Hosps., Inc., 2012 NY Slip Op 00271, Appellate Division, Third Department
Following a report from a member of the staff that a physician was storing pharmaceutical drug samples in the physician's office in violation of the employer’s policy, the office of the physician was searched and 114 sample packets, totaling 798 tablets, of the drug Provigil, a controlled substance, was found in an unlocked filing cabinet in the physician’s office. This constituted a violation of the employer’s policy barring the storage of Provigil in the offices of its physicians.
When the search was completed, the employees performing the search confiscated the Provigil. They then allegedly reported their findings to other medical office assistants working at the facility and commented that the physician “would likely be arrested and dismissed.
The physician filed a lawsuit against the employer and certain of its employees alleging slander per se, the intentional infliction of emotional distress, prima facie tort and trespass. Supreme Court dismissed the physician’s complaint and the physician appealed.
The Appellate Division said that Supreme Court properly determined that the statements of the employees to co-workers were protected by a qualified privilege, noting that "A qualified privilege arises when a person makes a good-faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest.”
Significantly, the court said that such common interest “may include statements to fellow employees on a subject concerning the employer.”
In this instance the employees’ statements to which the physician objected “were made solely to their co-employees,” all of whom were collectively responsible for the functioning and proper operation of the facility.
As all the employees involved had a common interest in knowing whether pharmaceuticals were being stored in violation of the employer’s policy and the implications with respect to physicians storing such items in their  offices, the Appellate Division found that the employees being sued “demonstrated that the statements were protected by a qualified privilege.”
This, said the court, shifted the burden to prove that the employees "acted out of personal spite or ill will, with reckless disregard for the statements' truth or falsity, or with a high degree of belief that their statements were probably false" to the physician.
Although the physician said that certain of the employees involved “harbored ill will” as a result of certain events that transpired in the days prior to the search, the Court noted that "spite or ill will refers not to [a] defendant's general feelings about [a] plaintiff, but to the speaker's motivation for making the defamatory statements [, and] a triable issue is raised only if a jury could reasonably conclude that malice was the one and only cause for the publication" of the offending statement.
The employees conducting the search did based upon first-hand information from another worker that she observed pharmaceutical samples being delivered to physician’s office Their statements to other employees following the discovery of the samples of Provigil in the physician’s office were “made in furtherance of the common interest” and thus were protected by the privilege.”
The decision states that even if the individuals disliked the physician or possessed some ill will towards the physician, the physician failed to make an evidentiary showing that the employees involved "were motivated by malice alone in making the statements" nor was there any representation that the employees involved “knew that their statements describing Provigil as a narcotic* were false or that they acted with reckless disregard as to whether [such statements] were false.”
Indeed, said the Appellate Division,  “the proof established that the terms ‘narcotic’ and ‘controlled substance’ are often used interchangeably throughout the medical community, and that the [employees] neither knew nor understood the difference.
Accordingly, said the court, the physician failed to demonstrate a triable issue regarding the existence of constitutional or common-law malice sufficient to defeat the qualified privilege and the privileged nature of these statements likewise precludes liability against the employer under the theory of respondeat superior.
The Supreme Court’s ruling was affirmed by the Appellate Division.
* Although all narcotics are controlled substances, not all controlled substances are narcotics.
The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

April 12, 2012 in Employment Law | Permalink | Comments (0)

Wednesday, April 11, 2012

School District Can Discipline Student For Off-Campus Speech On Facebook

Bell v. Itawamba Cnty. Sch. Bd., ___F.Supp. 2d___ (N.D. Miss. Mar. 15, 2012), is an interesting case which I am surprised has not gotten more press-at least yet. A federal district court held that school officials did not violate a student’s free speech when they disciplined him for posting a “rap” song he composed and performed off-campus, and posted on his Facebook page. The court concluded that Tinker v. Des Moines Indep. Cmty. Sch. Dist. , 393 U.S. 503 (1969), specifically held that school officials can regulate off-campus speech/expression that causes material or substantial disruption at school.

Mitchell H. Rubinstein


April 11, 2012 in Education Law | Permalink | Comments (0)

Monday, April 9, 2012

Arkansas Supreme Court strikes down law criminalizing consensual relationships between teachers and adult K-12 students

Paschal v. State of Arkansas, No. CR 11-673 (Ark. Mar. 29, 2012), is an interesting case. Now, before anyone gets too emotional about this decision, the court did not approve of relationships between students and teachers. Rather,  in a 4-3 split, it held that that a state law making it a crime for a K-12 teacher to engage in consensual sexual contact with a student who is an adult violates the state constitution. The court’s majority determined that the state constitution recognizes a “fundamental right to privacy implicit in our law” that “protects all private, consensual, noncommerical acts of sexual intimacy between adults.” While the state Supreme court acknowledged that it was possible that the state legislature “intended to criminalize a teacher’s use of his or her position of trust or authority over an adult student to procure sex,” the majority pointed out the law contained no language indicating such an intent.

Mitchell H. Rubinstein

April 9, 2012 in Constitutional Law, Education Law | Permalink | Comments (0)