In the Matter of Josephine Thomas, Appellant,v.New York City Department of Education, et al., Respondents.

Brief

N.Y.March 20, 2013

Supreme Court, New York County Index No. 100711/11 To be argued by PAUL T. REPHEN (15 Minutes) COURT OF APPEALS STATE OF NEW YORK In the Matter of the Application of JOSEPHINE THOMAS, Petitioner-Appellant, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules -against- NEW YORK CITY DEPARTMENT OF EDUCATION, CATHLEEN BLACK, as Chancellor of the New York City Department of Education and CITY OF NEW YORK, Respondents-Respondents. RESPONDENTS' BRIEF MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, Attorney for Respondents- Respondents, 100 Church Street, New York, New York 10007 212-788-1200 prephen@law.nyc.gov LEONARD KOERNER, PAUL T. REPHEN, Of Counsel September 20, 2012 TABLE OF CONTENTS TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT 1 QUESTION PRESENTED 2 STATEMENT OF FACTS 2 OPINIONS BELOW 3 ARGUMENT 7 IN VIEW OF THE PROHIBITION AGAINST CORPORAL PUNISHMENT CONTAINED IN THE REGULATIONS OF THE STATE BOARD OF REGENTS AND THE RULES OF THE CHANCELLOR OF THE CITY DEPARTMENT OF EDUCATION, IT WAS NOT ARBITRARY OR CAPRICIOUS TO DENY LEGAL REPRESENTATION TO AN EMPLOYEE WHO HAS ENGAGED IN CORPORAL PUNISHMENT AND WAS SUBSEQUENTLY SUED BY THE VICTIM FOR DAMAGES 7 CONCLUS ION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 7 Cases TABLE OF AUTHORITIES Pages Blood v. Board of Education of the City of New York, 121 AD 2d 128 (1 st Dept. 1986) 10 Dutchess County Dept. of Social Services v. Day, 96 NY2d 149 (2001) 13 Farrington v. Pinkney, 1 NY2d 74 (1956) 13 Martin v. Bd of Ed of The City Sch. Dist. of The City of New York, 2011 WESTLAW 1527190 (Sup. Ct. N.Y. Co.) 14 Matter of Board of Managers of the Park Place Condominium v. Town of Ramapo, 247 AD 2d 537 (2 nd Dept. 1998) 13 Matter of Inglis v. Dundee Central School Dist., 180 Misc 2d 156 (Sup. Ct. Yates Co. 1999) 14 Morel v. City of New York, 2010 WESTLAW 3207006 (Sup. Ct. N.Y. Co.) 14 Perez v. City of New York, 43 AD 3rd 712 (1 st Dept. 2007) 10 Timmerman v. Board of Education, 50 AD 2d 592 (1 st Dept. 2008) 15 Williams v. City of New York, 64 NY2d 800 (1985) 10 Zamperion v. Bd of Ed. of the City Sch. Dist. of The City of New York, 2010 WESTLAW 5576190 (Sup. Ct. N.Y. Co) 14 Statutes 8 NYCRR § 19.5 3, 11, 12 8 NYCRR § 19. 5 [a] [2] 4, 6 ii Statutes Pages 22 N.Y.C.R.R. § 600.10(d) (1) (i) . ............................................................ 18 N.Y. Educ. Law §2560 .. ...................... 3, 4, 5, 7 , 8, 9, 10, 12, 13, 14 N.Y. Educ. Law §3028 .. .......... " ........ " .... " ... 3, 4, 5, 7, 11, 12, 14, 15 N.Y. Gen. Mun. Law § 50-k '" " ........ 3, 4, 7 , 8, 9, 10, 12, 13, 14, 15 N. Y. Gen. Mun. Law § 50- k ( 9) 3 iii COURT OF APPEALS STATE OF NEW YORK In the Matter of the Application of: JOSEPHINE THOMAS, petitioner-Appellant, For a Judgment Pursuant to Article 78 of the N.Y. Civil Practice Law & Rules, -against- NEW YORK CITY DEPARTMENT OF EDUCATION, CATHLEEN BLACK, as Chancellor of the New York City Department of Education and CITY OF NEW YORK, Respondents-Respondents. RESPONDENTS' BRIEF PRELIMINARY STATEMENT In this Article 78 proceeding the petitioner appeals from an order of the Appellate Division, First Department which affirmed, with two Justices dissenting, an order and jUdgment of the Supreme Court (Gische, J.) entered August 29, 2011 which denied petitioner application that respondents provide her with legal counsel in connection with an action in which she was named as a defendant relating to alleged injuries suffered by a student in the City school system who was struck by respondent, a paraprofessional employed by the Department of Education (6)1 1 Numbers in parentheses refer to pages of the record on appeal. QUESTION PRESENTED Is an employee who has engaged in an act of corporal punishment against a student in violation of the regulations of the State and the rules of the City Chancellor of Education entitled to legal representation at public expense when she is later named as a defendant in an action of damages brought by her victim? STATEMENT OF FACTS On May 11, 2009 petitioner was employed as paraprofessional at the P. S. 94, annex located in the Bronx (39). Robinson Rodriguez, a kindergartner, and some other students were engaged in an activity relating to math concepts. When he expressed difficulty completing a task, petitioner struck him on the head with her hand (39-40, 50-51). The child's mother complained of corporal punishment, and a subsequent DOE investigation substantiated the charge (48-51). In a letter to petitioner, dated May 21, 2009, Diane Daprocida, Principal of PS 94 stated (51): On Tuesday, May 12, 2009, a corporal punishment allegation was made against you by the parent, Altagracia Flores of kindergarten student, Robinson Rodriguez. The allegation stated that you 'hit Robinson on the head wi th your hand. ' An investigation was conducted. The evidence gathered substantiates the allegation that you did hi t Robinson on the head during a small group work. As a result of these findings you are being re-assigned to the 2 main building effective Tuesday, 2009, and you are receiving this the file. May 26, letter to Our students are our most precious resource and must be respected and protected at all times. Under no circumstances is it acceptable to hit a student. Corporal punishment is prohibited in this State and within the City School District. the Chancellor § A-420. 8 NYCRR § 19.5, Regulations of On April 12, 2010 Robinson Rodriguez and his mother commenced on action against petitioner, the City and the Department of Education for injuries allegedly sustained a consequence of the corporal punishment (27-34). On May 20, 2010, petitioner requested that the Department of Education provide her with legal representation in connection with that action (35). In a letter to her, dated October 14, 2010 from Judith Davidow, Assistant Corporation Counsel, that request was denied (36). On January 14, 2011 petitioner commenced this proceeding to require respondents to provide her with that representation (21-23). OPINIONS BELOW (1) The Supreme Court recognized that the relevant statutes were Education Law §§ 2560, 3028 and General Municipal Law § 50- k (9) . General Municipal Law § 50-k provides for the 3 representation and indemnification of City employees and Education Law § 2560 makes that provision applicable to Department of Education employees. Education Law § 3028 requires school district's to provide legal representation to employees in litigation arising out of disciplinary action taken against a pupil in the discharge of the employees duties. General Municipal Law § 50-k excludes from its coverage acts in violation of a rule or regulation. In view of the fact that corporal punishment violates the Chancellor's Rule and Rules of the State Board of Regents, the City argued that petitioner was not covered by that provision or Education Law § 2560. It also maintained that GML § 50-k supersedes Education Law § 3028, which in respondents view was not applicable in any event because petitioner was not acting in the discharge of her duties when she struck the child. Justice Gishe agreed with respondents. The Court found that § 3028 is a general statute but Education Law § 2560 applies only to New York City schools, and therefore governs the case (14-15). The Court then observed (15): According to the child and an eyewitness, peti tioner struck the child because he got the wrong answer on a lesson. Not only was the action alleged - hitting the child - not undertaken in the discharge or furtherance of her duties as a school employee, corporal punishment by a school employee violates specific regulations (8 NYCRR § 19.5 [a] [2] ; Chancellor's Reg. A-420). Consequently, 4 while Education Law § 2560 may provide school employees in a city having a population of one million or more the right to legal defense where an action arises out of a disciplinary action taken by the employee against a student while discharging his or her duties in the scope of his or her employment, it is up to the Corporation Counsel to make the initial determination whether these requirements are satisfied (citations omitted) . Based on the facts contained in record the Court concluded (16): The decision by respondents to deny petitioner legal representation is firmly supported by the record which includes the incident report and the report following the investigation, each identifying the incident of corporal punishment with specificity. The respondents' decision to deny her legal representation has a rational basis. (2) The Appellate Division, First Department affirmed with two Justices dissenting. The Court held that Education Law §§ 2560 and 3028 "do not conflict and should be read together and 'applied harmoniously and consistently'" (68). The Court stated that an employee of the City Department of Education was entitled to representation in any action arising out of a disciplinary action taken against a student while acting in the scope of his or her employment and the discharge of duties unless he or she violated any rule or regulation of the agency (70). The Court concluded (70-71) 5 " petitioner was acting within the scope of her employment since the incident occurred in a classroom. However, the act of hitting a child on the head during a lesson violated DOE Chancellor's Regulation A-420 as well as a statewide rule prohibiting corporal punishment (see 8 NYCRR 19.5 [a] [2] ), and therefore was not taken in the discharge or furtherance of her duties as a school employee Although petitioner denied at the time, and continues to deny ever striking the child, the record shows that the allegations against her were substantiated and that she was transferred to another building as a result of the incident. The majority rejected the conclusion of the dissenters that petitioner's act was 'at most, an impulsive act designed to get the attention of an unfocused student and consistent with the teaching task she was assigned to perform' (71) . The majority found this view of the incident "not supported by the record and ignores the fact that petitioner's actions violated two regulations prohibiting corporal punishment" (72) . It continued: [t] here is no indication that the student was not paying attention or that his behavior was a cause for discipline. Id.. It further noted (76) Although petitioner denies she struck the child, the allegations against her were 'substantiated' at the conclusion of the investigation. Significantly, petitioner failed to challenge the disciplinary findings against her. In light of this factual record the Court concluded that the decision by the Corporation Counsel not to represent 6 the petitioner in the action brought by the student had a rational basis and was not arbitrary or capricious. The dissent was of the view that Education Law §§ 3028 and 2560 cannot be harmonized, and that § 3028 is more specific because it applies only to claims arising from disciplinary action taken against students whereas General Municipal Law § 50-K as incorporated in § 2560 applies generally to all claims against DOE employees (80-81). The dissenters concluded that peti tioner was acting in the discharge of her duties when she struck the child. The dissent condoned petitioners action (82): "When the purported event occurred, petitioner was teaching the student mathematical concepts. At worst, she became annoyed at his inattentiveness and used her hand to direct him. . petitioner's action was, at most, an impulsive act designed to get the attention of an unfocused student and consistent with the teaching task she was assigned to perform; thus it was in furtherance of the discharge of her duties." ARGUMENT rN vrEW OF THE PROHIBrTION AGAINST CORPORAL PUNISHMENT CONTAINED IN THE REGULATIONS OF THE STATE BOARD OF REGENTS AND THE RULES OF THE CHANCELLOR OF THE CITY DEPARTMENT OF EDUCATION, IT WAS NOT ARBITRARY OR CAPRICIOUS TO DENY LEGAL REPRESENTATION TO AN EMPLOYEE WHO HAS ENGAGED IN CORPORAL PUNISHMENT AND WAS SUBSEQUENTLY SUED BY THE VICTIM FOR DAMAGES. The issue presented in this appeal is whether an employee of the City Department of Education who has been found 7 to have engaged in corporal punishment, i . e., use of physical violence as a means of punishment, should bear the cost of defending herself or himself when the victim seeks redress by commencing an action for damages. For the reasons stated below, it is our view that the public is not obligated to provide such a defense. (1) Education Law § 2560 subd. 1, provides that "[n]ot withstanding any inconsistent provision of law, general, special or local" every employee of the City Department of Education shall be entitled to legal representation and indemnification pursuant to the provisions of, and subject to the conditions, procedures and limitations contained in section fifty-k of the General Municipal Law. " Section 50-k of the General Municipal law sets forth the procedures for the representation and indemnification of Ci ty employees. Under this statute employees are entitled to representation and indemnification with respect to any alleged act or omission which the Corporation Counsel finds occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged act or omission occurred. 8 The enactment of § 50-k and the amendment of Education Law § 2560 incorporating it were the culmination of several years effort to review and harmonize the various laws then existing regarding the representation and indemnification of Ci ty employees and employees of agencies funded by the City. Chapter 673 of the laws of 1979. This legislative purpose is made clear by the letter, dated July 3, 1979, submitted by the Mayor to the Governor in support of that enactment. provided in relevant part: The letter In prior years, legislation pertaining to the indemnification of various State and local public employees has arisen piecemeal, resulting in inconsistent standards of indemnification and incomplete coverage of various types of employees. Last year, you developed legislation which provided uniform indemnification of all State employees (Chapter 466 of the laws of 1978). The instant bill is modeled thereon, and would make available, for the first time, a clear and uniform standard of indemnification for all city employees. At present, most of the persons working for the city are indemnified but under a wide array of statutes which vary slightly in their terms and effect. The provisions of the instant bill would provide legal representation and indemnification for all employees of the Ci ty on the same basis. See bill jacket material to Chap. 673 of the Laws of 1979. The letter noted that the only quasi-City entities to be excluded from the coverage of § 50-k were the New York City Housing Authority, the Triborough Bridge and Tunnel Authority and the Off-Track Betting 9 Corporation. The entities specifically made subject to General Law § 50-k by Chapter 673 of the Laws of 1979 were the Board of Education, the Board of Higher Education and the New York City Health and Hospitals Corporation. Applying the provisions of § 50-k as incorporated in Education law § 2560 to this case, it is clear that petitioner was not entitled to representation by DOE or at DOE's expense in the action brought by her victim. Petitioner was found to have engaged in corporal punishment in violation of the regulations of the State and the Chancellor. The determination not to represent her was entirely appropriate and should not be disturbed by the Courts. See Williams v. City of New York, 64 NY2d 800 (1985)i See also Perez v. City of New York, 43 AD 3rd 712 (1st Dept. 2007) isee also Blood v. Board of Education of the City of New York, 121 AD 2d 128, 130 (lst Dept. 1986). The Appellate Division correctly held § 2560 applicable in this case and that petitioner was not entitled to representation by DOE because of her violation of State and City Regulations proscribing corporal punishment (70-71). (2) We do not understand petitioner to argue that she is entitled to representation pursuant to § 2560. Ins tead, she maintains that that provision is inapplicable in this case, and 10 she is entitled to representation by DOE by virtue of Education Law § 3028. That provision provides in relevant part: Notwithstanding any inconsistent provision of any general, special or local law each board of education shall provide an at torney or attorneys for, and pay such attorney's fees and expenses necessarily incurred in the defense of a teacher in any civil or criminal action or proceeding arising out of disciplinary action taken against any pupil of the district while in the discharge of his duties within the scope of his employment or authorized volunteer duties. As noted earlier, although corporal punishment has been prohibited in New York City for decades, it was only banned statewide by the Board of Regents in 1985. See historical note to 8 NYCRR § 19.5. Thus in 1960 when the provision was enacted, it was possible outside of New York City for a teacher or employee of a school district to have been acting in the discharge of his or her duties when he or she engaged in corporal punishment as long as his or her board of education had not proscribed such conduct. However, subsequent to the adoption of § 19.5 of 8 NYCRR and the prohibition against corporal punishment throughout the State, no teacher or school employee who engages in this conduct, we submit, can be said to be "acting in the discharge of his or her duties" for the purposes of that provision. 11 believe intention ofWe Legislature to that require a it was school the district to the provide representation in a case arising out of disciplinary action only if the act of the employee was consistent with the regulations and policies of the school district. In other words, an employee does not have carte blanche to take whatever "disciplinary action" he or she desires, even if contrary to state or local rules, and have the school district pick up the bill for representation in any subsequent civil litigation. We submit it was never the intention of the Legislature to require a school district to defend an employee who has engaged in illegal disciplinary action. Both Chancellor's Regulation A-420 and 8 NYCRR § 19.5 recognize that reasonable force may be used against a student in self-defense or in defense of others or property. Presumably if an action were brought against a teacher who acted in self- defense or defense of another, representation would be provided under § 3028 or, in New York City, under Education Law 2560 and GML § 50-k. However, we know of no appellate decision which found § 3028 applicable to a teacher who has engaged in corporal punishment in violation of the rules of the State of DOE. (3) Assuming for the sake of argument that § 3028 does mandate that a school district or Board of Education provide 12 representation to an employee who is defendant in an action arising from the unlawful imposition of corporal punishment, the question arises whether that section has been superseded by Education Law § 2560, which incorporates GML § 50-k. As noted previously § 50-k and the amendment to § 2560 incorporating it were enacted almost twenty years after the enactment of § 3028 and both sections state that its provisions shall apply notwithstanding any other provision of law. It is a fundamental rule of statutory construction that "a prior general statute yields to a later specific or special statute". Dutchess County Dept. of Social Services v. Day, 96 NY2d 149, 153 (2001); Farrington v. Pinkney, 1 NY2d 74, 78 (1956); Matter of Board of Managers of the Park Place Condominium v. Town of Ramapo, 247 AD 2d 537 (2 nd Dept. 1998). Section 3028 is unquestionably a general statute. By its terms, it applies to every board of education in this State. In contract, § 2560 of Education Law and GML § 50-k are later special statutes, limited to agencies of the City or those agencies financed by the City. As discussed earlier, in enacting § 50-k and amending § 2560 to conform to it, the Legislature expressed the intent that there be one indemnification of City employees, and employees of uniform provision dealing with the representation and the Department of Education, Higher Education and the Health and 13 Hospital Corporation. It was also the express intent of the Legislature to deny representation in those cases where the individual had violated an agency rule or regulation or had been the subject of discipline arising from the activity that is the subject of the litigation. The Court below, therefore, correctly concluded that § 2560 is applicable. 2 (4) At pages 17-18 of her brief, petitioner refers to a number of cases concerning whether an employee was acting in the discharge of duties for the purposes of common law respondent superior. Reliance on these cases is entirely misplaced. We do not dispute that for the purposes of the tort action brought by the child struck by petitioner the Department of Education could be held liable for her action. The issue before this Court, however, is not common law respondent superior, but one of legislative intent, i.e., did the Legislature intend to require 2 This issue has been the subject of several other lower court decisions. Zamperion v. Bd of Ed. of the City Sch. Dist. of The City of New York, 2010 WESTLAW 5576190 (Sup. Ct. N.Y. Co) (holding §2560 to be a specific statute, governing a teacher's right to representation); Martin v. Bd of Ed of The City Sch. Dist. of The City of New York, 2011 WESTLAW 1527190 (Sup. Ct. N.Y. Co.) (§ 50-k was intended to establish a uniform standard for representation of all City employees). But see contra Morel v. City of New York, 2010 WESTLAW 3207006 (Sup. Ct. N.Y. Co.) (Held §3028 was the more specific statute and §2560 not applicable); Matter of Inglis v. Dundee Central School Dist., 180 Misc 2d 156 (Sup. Ct. Yates Co. 1999). 14 a school district to provide representation to an employee in a civil action under the facts presented here. Equally irrelevant is petitioner's reliance on Timmerman v. Board of Education, 50 AD 2d 592 (lst Dept. 2008). Petitioner's brief, pps. 10-11. Timmerman did not involve corporal punishment. In Timmerman a teacher had contacted the parents of three students who had been disruptive in class. Apparently, in retaliation for the phone calls, the three students accused him of inappropriately touching them. He was then arrested and charged with endangering the welfare of minors. Id. When the charges were dismissed, he sought indemnification for his legal expenses. The City argued that his criminal proceeding did not fall within the scope of § 3028, which argument was rejected by this Court. Timmerman, however, had nothing to do with unlawful corporal punishment. He seems to have been the innocent victim of false accusations by his students. Timmerman does not support the argument that § 3028 is applicable in a case such as this where the issue is the use of corporal punishment. In addition, Timmerman relied solely on § 3028. Thus, that case did not raise any question concerning whether that section is superseded by GML § 50-k. The Appellate Division didn't even think it necessary to address Timmerman in its opinion. 15 In the final analysis, given the strong public policy against corporal punishment in this State it makes no sense to require the public to provide a legal defense for those employees who engage in such conduct. There can be no justification for the infliction of physical punishment. This case, however, is particularly egregious because the child who was struck was in kindergarten and was hit when he expressed difficulty with the work. There is absolutely no basis in the record for the dissent's statement the child was "inattentive" or the physical force "was designed to get the attention of an unfocused student and consistent with the teaching task she was assigned to perform" (82-83). In her response to the allegation of corporal punishment, petitioner did not claim the child was inattentive or misbehaving. All she claimed was that her student "was very frustrated with the work" (52) In any event, the day is long past in this State where the use of corporal punishment may be deemed "consistent with a teaching task". The determination by the Corporation Counsel in this case not to provide representation was neither arbitrary nor capricious and the determination of the Appellate Division should be affirmed. 16 CONCLUSION THE ORDER APPEALED FROM SHOULD BE AFFIRMED WITH COSTS. MICHAEL A. CARDOZO Corporation Counsel of the City of New York, Attorney for Respondents- Respondents 100 Church Street New York, N.Y. 10007 prephen@law.nyc.gov By: PAUL T. R PHEN LEONARD KOERNER, PAUL T. REPHEN, Of Counsel. 17