Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, December 15, 2012

Super-Precedent and Stare Decisis

Doug Berman at Sentencing Law & Policy Blog commented yesterday on the Supreme Court's cert grant last month in Alleyne v. United States wherein the question is "Whether this Court's decision in Harris v. United States, 536 U.S. 545 (2002), should be overruled."  Harris is a federal sentencing case in the Apprendi line of cases and is important to federal criminal law practitioners on that ground.  However, Berman notes:

[T]he notion of whether Harris "should be overruled" has me thinking Alleyne could be a sleeper case concerning the doctrine of stare decisis in constitutional law and practice.  Significantly, Harris did not create the constitutional rule that legislatures could allow sentencing judges to find facts by a preponderance of evidence to trigger the application of mandatory minimum prison terms.  Harris merely reaffirmed this constitutional doctrine in 2002; it was established back in 1986 in McMillan v. Pennsylvania (and the McMillan opinion suggested its holding was just a reaffirmation of constitutional rules first set out in the 1949 case of Williams v. New York).  In other words, Harris is not just a regular precedent: like Roe v. Wade and other controversial rulings often challenged and often reaffirmed, the constitutional doctrines allowing judges to find facts to trigger mandatory minimums arguably qualify as a "super-precedent."

Like Professor Berman, I do not consider myself a sufficiant expert on constitutional theory to say whether super-precedents exist. 

December 15, 2012 | Permalink | Comments (0)

Thursday, December 13, 2012

No legal obligation to initiate disciplinary charges against an individual

Decisions of the Commissioner of Education, Decision #16,427
A tenured high school teacher alleged that the high school superintendent neglected her duty to ensure the integrity of the school system by failing to initiate disciplinary charges against the principal of the high school at which he was serving.
The teacher alleged that he reported the school’s principal for alleged violations including failure to identify at-risk students as required by Title I of the federal Elementary and Secondary Education Act (20 USC §6301, et seq.) and scoring irregularities on New York State Regents mathematics examinations.
Following his reporting these alleged violations, the teacher claimed that the principal retaliated against him by [1] placing several disciplinary letters in his personnel file, [2] his being ordered to undergo medical examination and [3] his removal from the school to a “temporary assignment center.”*
The teacher asked the Commissioner to remove the high school superintendent and the Chancellor of the New York City Department of Education from their respective positions because they failed to take disciplinary action against the principal.
After considering a number of procedural issued, the Commissioner said that the teacher’s application “must be dismissed on the merits.”
The Commissioner explained that a member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.
The teacher alleged that the high school superintendent “neglected her duty to ensure the integrity of the school system by failing to initiate disciplinary charges against [the principal].” However, said the Commissioner, the teacher s failed to meet his burden of proof as he did not establish how the superintendent’s failure to file an Education Law §3020-a charge against the principal, at his request, constituted a willful violation or neglect of duty under the Education Law, requiring her removal under Education Law §306 nor did the teacher show that the superintendent “was under a legal obligation to initiate Education Law §3020-a charges against [the principal].”
The Commissioner ruled that “On the record before me, I find that [the teacher] has failed to demonstrate that [the high school superintendent] has willfully neglected her duties [and] failed to establish any basis for [the superintendent’s] removal” and denied the teacher’s application.
* The teacher was later restored to service at the school..
The decision is posted on the Internet at:

Reprinted by permission

New York Public Personnel Law

Mitchell H. Rubinstein

December 13, 2012 in Education Law | Permalink | Comments (0)

Wednesday, December 12, 2012

DC Circuit Issues Major Decision On Withdraw of Recognition


SFO Goodnite Inn v. NLRB, ____F.3d____ (D.C. Cir. Nov. 20, 2012). The D.C. Circuit enforced  a National Labor Relations Board order finding a California hotel improperly withdrew recognition from a UNITE HERE local, rejecting the hotel's argument that it lawfully relied on anti-union petitions signed by a majority of its employees.

Mitchell H. Rubinstein 

December 12, 2012 in Labor Law, NLRB | Permalink | Comments (0)

Tuesday, December 11, 2012

Allegations of negligent hiring and supervision of employee rebutted by evidence submitted by employer in support of its motion to dismiss the lawsuit

"John Doe 1," v Board of Educ. of Greenport Union Free Sch. Dist., 2012 NY Slip Op 07633, Appellate Division, Second Department
Parents of a student at the Greenport Union Free School District alleged that a teacher's aide employed by the school district engaged in an inappropriate sexual relationship with their child.
Among the complaints asserted against the school district and certain of its officers was a cause of action alleging that these defendants were [1] vicariously liable for the actions of teacher’s aide and [2] were liable for the negligent hiring and supervision of the aide.
The Appellate Division held that the evidentiary material submitted in support of the school district’s motion to dismiss the action as to the district and certain of its employees demonstrated that the parents did not have a cause of action against those defendants sounding in either vicarious liability or negligent hiring and supervision, explaining that all of the alleged improper acts by school aide took place off school premises and, or, outside of school hours, when the school defendants had no custody or control of the students and no duty to monitor or supervise the conduct of the school aide.
Further, said the court, the evidence demonstrated that the conduct of aide was personally motivated and constituted a complete departure from her duties as a school district employee, thereby negating any potential vicarious liability on the part of the school defendants for her alleged tortious acts.
As to the claim that the school district was liable for negligent hiring and supervision of the aide, the Appellate Division said that the evidence established that school district “properly investigated” the aide prior to her being hired, and that the school district had no notice of any propensity on her part to sexually assault students.
The court also noted that the parents did not allege that the school district defendants knew or had reason to know of any improper behavior by the aide nor was any nexus between aide's employment and the alleged sexual assaults, since they were separated by time, place, and the intervening independent acts of the aide.
Accordingly, ruled the Appellate Division, Supreme Court should have granted that branch of the school district's motion to dismiss the complaint insofar as asserted against the school district and its named officials.
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

December 11, 2012 in Employment Law | Permalink | Comments (0)

Monday, December 10, 2012

Arbitration award held to be “irrational and defies common sense” for a second time remanded to a different arbitrator

Social Servs. Employees Union Local 371 v City of New York Admin. for Children's Servs., 2012 NY Slip Op 07403, Appellate Division, First Department
A Child Protection Specialist Supervisor II with the New York City Administration for Children's Services (ACS), pleaded guilty to grand larceny in the fourth degree, for filing false income tax returns using confidential ACS client information to fraudulently claim entitlement to state and local tax credits.
This matter was ultimately assigned to disciplinary arbitrator Rose F. Jacobs, who imposed a penalty of suspension, after which employee was to be restored to his former position.
On appeal of the lower court's confirmance, the Appellate Division vacated the arbitrator's award as "irrational and defies common sense" because "[r]einstated to the position of ACS supervisor, [the employee] again would have access to the ACS database from which he extracted the information he used to perpetrate his crime."*
The court remanded the matter to the arbitrator for her reconsideration of the penalty to be imposed. Notwithstanding the clear directive by the Appellate Division not to do so, the arbitrator again restored employee to his former position.
Supreme Court denied Local 371’s CPLR 7510 petition to confirm the second award of the arbitrator reinstating the employee to his former position and granted the City’s cross petition to vacate the award insofar as it orders the reinstatement of the employee.
Local 371 appealed and the Appellate Division unanimously agreed with Supreme Court's ruling. It then remanded the matter to a different arbitrator for reconsideration of the appropriate penalty explaining that it found, “once again and for the same reasons, that the arbitrator's award is irrational and defies common sense,” citing City School District of the City of New York v Campbell, 20 AD3s 313.
Accordingly, the Appellate Division, approving Supreme Court’s “vacated the award reinstating the grievant,” said that it was remanding the matter to a different arbitrator only for reconsideration of the appropriate penalty.
* See 56 AD3d 322, 322 [1st Dept 2008], lv dismissed 12 NY3d 867.

The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

December 10, 2012 in Arbitration Law | Permalink | Comments (0)

Sunday, December 9, 2012

Claims for certain health insurance benefits and the liquidation of sick leave credits upon retirement rejected

Decision 1. Suttlehan v Town of New Windsor, 2012 NY Slip Op 07292, Appellate Division, Second Department [re: Health Insurance]
Decision 2. Suttlehan v Town of New Windsor, 2012 NY Slip Op 07293, Appellate Division, Second Department [re: Sick Leave Credits]
Town of New Windsor Town Justice Donald J. Suttlehan sued the Town, contending that it was in breach of contracts when it (1) eliminated his alleged entitlement, upon his retirement, to fully paid lifetime health care benefits for himself and his spouse [Decision 1] and (2) failing to pay him for his unused sick-leave credits upon his retirement [Decision 2].
On January 7, 2009, the Town adopted resolutions prospectively awarding Justice Suttlehan [a] “fully paid lifetime medical benefits for himself and his spouse” upon his retirement and [b] granted certain post-retirement health-care benefits to elected officials with eight years or more of service. On May 6, 2009 the Town adopted a resolution revoking its January 7, 2009 action with respect to providing “lifetime health care benefits” and Town modified its earlier “unused sick-leave” resolution in accordance with a new schedule.
Justice Suttlehan retired in July 2009. He then filed petitions in Supreme Court challenging the Town’s actions that he alleged truncated certain benefits to which he claimed he was entitled upon his retirement..
With respect to his claim to “lifetime medical benefits,” Justice Suttlehan alleged “breach of contract and promissory estoppel….” He argued that, among other things, that the Town’s January 7, 2009 resolution imposed a contractual obligation upon the Town to provide him with lifetime medical benefits or, in the alternative, that, by adopting the resolution, the Town became obligated to provide him with those benefits under the theory of promissory estoppel.
The Appellate Division sustained the Supreme Court’s dismissal of Justice Suttlehan’s petition, holding that the Town had met its “prima facie burden of establishing that [it was] not obligated to provide lifetime medical benefits to the plaintiff and his spouse, and the plaintiff failed to raise a triable issue of fact in opposition.”
The Appellate Division said the resolution dated May 6, 2009, which revised Justice Suttlehan’s health-care benefits only with respect to coverage for claims made, or to be made, subsequent to his separation from Town employment, was not discriminatory as it was applicable to various elected officials -- the Town Supervisor, Town Clerk, Superintendent of Highways, Receiver of Taxes, Town Justices, and members of the Town Board -- as well as to the Town’s judiciary.
Rejecting Justice Suttlehan’s argument that the resolution violated his rights pursuant to the separation of powers doctrine or the compensation clause of the New York Constitution, the Appellate Division noted that the resolution addressed the prospective reduction of a municipal official's health benefits only after his or her retirement, not the reduction in the salary or benefits of a justice during his or her term in office.
In any event, said the Appellate Division, "[a] municipal resolution is, in general, a unilateral action that is temporary in nature and, thus, it does not create any vested contractual rights," citing Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326.
As to Justice Suttlehan’s cause of action to recover damages for breach of contract with respect to the liquidation of his unused sick-leave credits, Supreme Court held that he was entitled to payment for 397 unused sick days, The Town appealed the court’s decision.
The Appellate Division vacated the Supreme Court’s ruling, holding that "In general, a public employee whose employment has terminated may not recover the monetary value of unused . . . sick time in the absence of statutory or contractual authority."
The Town, said the court, had met its prima facie burden of showing its entitlement to judgment as a matter of law by demonstrating that there was no statutory or contractual authority for the relief sought by Justice Suttlehan and Supreme Court should have dismissed the Justice’s cause of action to recover damages for breach of contract with regard payment for his unused sick-leave credits.
The “health insurance” decision is posted on the Internet at:
The “sick leave” decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

December 9, 2012 in Public Sector Labor Law | Permalink | Comments (0)