In the Matter of Deborah Sagal-Cotler, Appellant,v.Board of Education of the City School District of The City of New York, et al., Respondents.

Brief

N.Y.March 20, 2013

To Be Argued By: Ariana A. Gambella Time Requested: 20 Minutes New York County Clerk's Index No. 104406/10 COURT OF APPEALS STATE OF NEW YORK In the Matter of the Application of DEBORAH SAGAL-COTLER, Petitioner-Appellant, -against- BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and JOEL I. KLEIN, in his official capacity as CHANCELLOR of the CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and the CITY OF NEW YORK, Respondents-Respondents, For a Judgment Pursuant to Article 78 of the New York Civil Practice Law and Rules. REPLY BRIEF FOR PETITIONER-APPELLANT DEBORAH SAGAL-COTLER RICHARD E. CASAGRANDE, ESQ. Ariana A. Gambella, Of Counsel New York State United Teachers 52 Broadway, Ninth Floor New York, New York 10004 Telephone: (212) 533-6300, ext. 121 Facsimile: (212) 995-2347 Attorney for Petitioner-Appellant Deborah Sagal-Cotler Date Completed: October 26,2012 TABLE OF CONTENTS PRELIMINARY STATEMENT ....................................... 1 STATEMENTOFFACTS ........................................... 4 ARGUMENT ...................................................... 5 POINT I ................................................ 5 APPELLANT IS ENTITLED TO LEGAL REPRESENTATION PURSUANT TO EDUCATION LAW § 3028 EVEN IF HER CONDUCT VIOLATED REGULATIONS OF THE STATE BOARD OF REGENTS AND THE RULES OF THE CHANCELLOR OF THE CITY DEPARTMENT OF EDUCATION ............. 5 A. Section 3028 of the Education Law does not create a distinction between an appropriate disciplinary action and an inappropriate disciplinary action .................... 5 B. The City's Determination Denying Appellant Legal Representation In The Civil Action Is Not Entitled To Deference ........................................ 13 C. Respondents Have Failed To Distinguish Timmerman From The Instant Matter ............................. 13 D. Education Law § 3028 has not been superseded by Education Law § 2560 .............................. 15 POINT II .............................................. 17 TABLE OF CONTENTS (CONTINUED) RESPONDENTS' "PUBLIC POLICY" ARGUMENT SHOULD BE REJECTED BECAUSE RESPONDENTS HA VE IDENTIFIED NO PUBLIC POLICY THAT WOULD ABROGATE APPELLANT'S RIGHT TO LEGAL REPRESENTATION IN THE CIVIL ACTION ..... . .. 17 CONCLUSION ................ . .................................. 19 11 TABLE OF AUTHORITIES Cases Blood v Bd. ofEd. ofthe City ofNew York, 121 A.D.2d 128 (1st Dep't 1986) .............. . ................... 10,11 Cromer v. City Sch. Dist. ofAlbany, 2002 WESTLA W 1174683 (Sup. Ct., Alb. Cty. Apr. 5, 2002) ........... . ... 8 Cutler v. Poughkeepsie City Sch. Dist., 73 A.D. 2d 967 (2d Dep't 1980) ....................................... 8 De Wald v. Seidenberg, 297 N.Y. 335 (1948) ......................... . ...................... 7 Inglis v. Dundee Cent. Sch. Dist., 180 Misc.2d 156 (Sup. Ct., Yates Cty. March 1, 1999) ..... . .......... paSSIm Matter ofWilliams v. City ofNew York, 64 N.Y.2d 800 (1985) .............................................. 12 Perez v. City ofNew York, 43 A.D.3d 712 (1st Dep't 2007) ...................................... 12 Ricca v. Bd. ofEduc. , City Sch. Dist. ofCity ofNew York, 47 N.Y.2d 385 (1979) ................ . .... . .................... . ... 18 Riviello v. Waldron, 47 N.Y.2d 297 (1979) ................................... . .... . .... 6, 7 Stewarts on v. Gristede's Supermarket, Inc., 271 A.D.2d 324 (1st Dep't 2000) ........ . .... . .. . ............ . ... . .. 7,8 Timmerman v. Bd. ofEduc. ofthe City Sch. Dist. ofthe City ofNew York, 856 N.Y.S.2d 103 (lst Dep't 2008) .............................. 13,14,15 III Statutes Education Law § 2560 .................. . ............ .. ......... passim Education Law § 3028 .......................................... passim General Municipal Law § 50-k ................................... passim iv New York County Clerk's Index No. 104406/10 COURT OF APPEALS STATE OF NEW YORK In the Matter of the Application of DEBORAH SAGAL-COTLER, Petitioner-Appellant, -against- BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and JOEL I. KLEIN, in his official capacity as CHANCELLOR of the CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and the CITY OF NEW YORK, Respondents-Respondents, For a Judgment Pursuant to Article 78 of the New York Civil Practice Law and Rules. BRIEF FOR PETITIONER-APPELLANT DEBORAH SAGAL-COTLER PRELIMINARY STATEMENT Petitioner-appellant, Deborah Sagal-Cotler ("appellant" or "Ms. Sagal- Cotler") submits this reply in further support of her appeal from the order and judgment of the Appellate Division, First Department, entered June 5, 2012, which reversed an order and judgment of the Supreme Court, New York County, dated September 22, 2012, and in response to the opposition submitted by respondents- respondents ("respondents"). The gravamen of respondents' argument is that appellant is not entitled to legal representation in the civil action entitled Dawn Watson et at. v. City ofNew York, New York City Department of Education and Debra Cotler, 17534/09, Supreme Court, Kings County ("the civil action"), which arose out of an act of discipline appellant took against a former student, because appellant's act constitutes corporal punishment and, as such, violated the rules and regulations of the State Board of Regents and the respondent Board of Education of the City School District of the City of New York ("Board" or "Board of Education"). Appellant does not dispute that New York City school employees are prohibited from engaging in corporal punishment. However, school employees are not excluded from the protections of Education Law § 3028 simply because their conduct may run afoul of their employers' rules or regulations. In arguing that Education Law § 3028 does not apply to appellant, respondents ' attempt to create a distinction between an appropriate, physical disciplinary action and an inappropriate, physical disciplinary action, by asserting that school employees who discipline their students in accordance with the State's regulations and rules of the respondent Board are entitled to legal representation under Education Law § 3028, whereas school employees who engage in corporal punishment are excluded from the protection of Education Law § 3028. These arguments fail because neither the plain meaning of the statute nor the legislative 2 history underlying it make any distinction with respect to the type of disciplinary action for which an employee is guaranteed legal representation under Education Law § 3028. As set forth more fully below, an established line of judicial authority supports the proposition that an employee acts in the discharge of his duties, within the scope of his employment, even when he engages in conduct that violates his employer's rules. Therefore, appellant's act of slapping a recalcitrant student, which occurred on a single occasion as a result of a momentary loss of temper, even if construed as corporal punishment and a violation of a rule or regulation, was within the discharge of her duty of escorting the student to the cafeteria and was well within the scope of her employment. Respondents have failed to cite to any case law contrary to this proposition. Respondents' contentions concerning the limited applicability of Education Law § 3028 are not supported by the legislative history underlying the enactment of Education Law § 3028. Specifically, the legislative memorandum drafted in support of Education Law § 3028 demonstrates that its purpose is to provide school employees with legal representation in instances in which claims alleging excessive force or assault arise out of school employees' discipline of students. Such claims could certainly arise out of incidents of corporal punishment. Furthermore, despite respondents' contentions to the contrary, Education Law § 3 3028 has not been superseded by Education Law § 2560. As discussed below, neither the rules of statutory construction nor the legislative history underlying the most recent amendment to Education Law § 2560 support respondents' arguments in this regard. Therefore, appellant respectfully requests that the Order of the Appellate Division, First Department, be reversed, the Order and Judgment of the Supreme Court reinstated, and respondents directed to immediately provide appellant with legal representation in the civil action pursuant to Education Law § 3028, as well as reimbursement for all reasonable legal fees incurred in her defense of the civil action to date. STATEMENT OF FACTS Appellant respectfully refers the Court to the Statement of Facts set forth on pages 5 through 11 of her Brief for a complete and accurate statement of the underlying facts. 4 ARGUMENT POINT I APPELLANT IS ENTITLED TO LEGAL REPRESENTATION PURSUANT TO EDUCATION LAW § 3028 EVEN IF HER CONDUCT VIOLATED REGULATIONS OF THE STATE BOARD OF REGENTS AND THE RULES OF THE CHANCELLOR OF THE CITY DEPARTMENT OF EDUCATION Appellant's act of slapping a student on a single occasion as a result of a loss of temper does not exclude her from the protections set forth in Education Law § 3028. Appellant is entitled to legal representation in the civil action pursuant to Education Law § 3028 because the civil action arose out of the disciplinary action appellant took against her former student. This is true even if appellant's conduct violated New York State and/or respondent Board's regulations because the terms of Education Law § 3028 do not expressly exclude school employees whose conduct may be in violation of State or other regulations. A. Section 3028 of the Education Law does not create a distinction between an appropriate disciplinary action and an inappropriate disciplinary action On page 11 of their brief, respondents set forth their "belief' that it was the intention of the Legislature to require a school board to provide representation in a case arising out of disciplinary action only if the act of the subject employee was consistent with the regulations and policies of the school board. Respondents' 5 "belief' in this regard is not supported by the plain meaning of the statute, the legislative history underlying the enactment of Education Law § 3028, or any judicial authority. Respondents seemingly base their contentions on the notion that subsequent to the adoption of the prohibition against corporal punishment throughout the State, no teacher or school employee who engages in corporal punishment can be said to be "acting in the discharge of his or her duties" because such conduct violates State regulations, as well as rules promulgated by the respondent Board. Respondents' arguments fail in the light of the established judicial precedent interpreting and defining the term "scope of employment." I New York State courts have interpreted the scope of employment broadly to include many actions which violate an employer's rules. In Riviello v. Waldron, 47 N. Y.2d 297 (1979), this Court set forth the scope of employment test as, " ... whether the act was done while the servant was doing his master's work, no matter how irregularly or with what disregard of instructions." Id. at 302-03 (citations omitted). This Court further stated that where the element of general foreseeability exists, even intentional tort situations have been found to fall within the scope of employment. Id. at 304. On page 10 of Respondents' Brief, respondents maintain that "[ c ]ertain ly in a case such as this, where the employee was actually disciplined for the act, it would be irrational to maintain that [appellant] was discharging her duties when she struck the student." Respondents do not base this argument on any apparent legal authority. Additionally, respondents fail to explain the basis of this belief. 6 I In De Wald v. Seidenberg, cited in Riviello, this Court held that an employee is acting within the scope of his employment even though the "servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty or authority, and inflicts an unjustifiable injury upon another." 297 N.Y. 335, 338 (1948). Although getting angry or losing one's temper is not generally included in a job description, courts have recognized that employees are human, that circumstances may give rise to heated exchanges, that employees may not always comport themselves the wayan employer or even the employees themselves would prefer; nonetheless, under the circumstances, those employees were still found to have acted within the scope of their employment. More recently, in Stewartson v. Gristede's Supermarket, Inc., 271 A.D.2d 324 (1st Dep't 2000), the Appellate Division, First Department, determined the following: Mere disregard of instructions or deviation from the line of his duty does not relieve his employer of responsibility. 'Wrongful acts are usually in violation of orders or in deviation from the strict line of duty. The test is whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions.' Only where the servant for his own purposes departs from the line of his duty and abandons his service is his employer not liable. However, to constitute an abandonment of his service, the servant must be serving his own or some 7 other person's purposes wholly independent of his master's business. 271 A.D.2d at 325 (citations omitted). The term "scope of employment" has, generally, been very broadly construed by courts applying the defense and indemnity provisions of the Education Law. Indeed, the Legislature anticipated that some acts by a teacher taken within the scope of employment could be the basis of criminal, as well as civil action and courts have required school districts to defend employees for even alleged intentional acts of wrongdoing, so long as the act is one which the district could have reasonably anticipated. See Inglis v. Dundee Cen. Sch. Dist., 180 Misc.2d 156 (Sup. Ct. Yates Co. 1999) (construing facts in light most favorable to plaintiff who alleged that teacher slapped her, court required district, pursuant to Education Law § 3028, to reimburse teacher for legal fees in defending charge of harassment); see also Cutler v. Poughkeepsie City Sch. Dist., 73 A.D. 2d 967 (2d Dep't 1980); Cromer v. City Sch. Dist. ofAlbany, 2002 WESTLA W 1174683 (Sup. Ct., Alb. Cty. Apr. 5, 2002). Respondents have failed to distinguish Inglis v. Dundee Cent. Sch. Dist., 180 Misc.2d 156 (Sup. Ct., Yates Co. 1999). Respondents' mere belief that the Inglis case was incorrectly decided is not supported by any persuasive case law or arguments. Instead, respondents attempt to downplay the conduct of the teacher, Ms. Inglis, which gave rise to a criminal suit filed against her by a student. 8 Specifically, respondents describe Ms. Inglis as having "grazed" the side of a student's face rather than as having "slapped" a student across his face. Whether Ms. Inglis "grazed" or "slapped" one of her students, it is undisputable that she made inappropriate contact with her student. The Inglis decision does not suggest that Ms. Inglis made contact with her student in self-defense or in defense of others or property. Thus, her conduct in this regard could arguably be construed as corporal punishment or, at least, as conduct that ran afoul of the State's rule or regulation prohibiting corporal punishment. However, the Inglis court held that Ms. Inglis was acting with the scope of employment when she disciplined a student by slapping his face when he ignored her instruction to stop playing loudly on a piano. Inglis, 180 Misc.2d at 158-59. Consequently, the court determined that she was entitled to a defense in the resulting criminal case pursuant to Education Law § 3028. Id. at 159. Like respondents in the instant matter, the school district in Inglis denied legal representation, claiming that Education Law § 3028 did not apply because the teacher had engaged in corporal punishment. The Inglis court acknowledged that her act could be construed as corporal punishment but held that § 3028 applied, nonetheless, because the act was "one that the school district could reasonably anticipate." Id. at 159. The court found that the extent of the teacher's departure from performing her job description was not a dramatic one (that is, the petitioner 9 "slapped" the child once across the face and the incident ended) in consideration of the fact that discipline of students is a normal and customary part of a teacher's employment. In reaching this determination, the Inglis court gave some treatment to arguments the school district advanced concerning the legislative history underlying Education Law § 3028. Specifically, the court noted that Education Law § 3028 was enacted in 1960, while 8 NYCRR 19.5 was not enacted until 1985. Id. at 157. However, despite the enactment of the regulation prohibiting the use of corporal punishment, the court properly found that there has been no change or abolishment of the language in Education Law § 3028. Id. Moreover, the court emphasized that the legislative memorandum in support of Education Law § 3028 noted that its purpose was to provide a legal defense for a teacher, in instances where claims of excessive force or assault in disciplining a child are made while the teacher was acting in the discharge of her duties within the scope of her employment. Id. Respondents also cite to Blood v. Bd of Educ. of the City of New York et al., 121 A.D.2d 128 (lst Dep't 1986), in support of their contention that appellant is not entitled to representation because her conduct violated rules and regulations.2 However, the facts underlying Blood actually support appellant's 2 Respondents argue that the denial of legal representation was based on appellant's admitted act of corporal punishment, in violation of the regulation of the ChanceJlor, and on appellant not being exonerated in "the 10 position in the instant matter. In Blood, the Appellate Division, First Department, found that there was no support in the record for a determination that the petitioner violated any agency rule or regulation. Id. at 133. Nonetheless, in reaching its conclusion, the Court noted that "[a]ll negligence is unsatisfactory and worthy of reprimand, but the city's obligation to defend its employees from liability for alleged acts or omissions occurring during their work is not limited to those employees who are considered wholly free from fault." Id. Furthermore, as Ms. Sagal-Cotler's principal disciplined her, Ms. Blood's supervisors also disciplined her by issuing a reprimand and an unsatisfactory rating "based entirely upon her conduct during the Turner incident" in which Ms. Blood struck her student. Blood, 121 A.D.2d at 129, 131. Appellant's act of slapping her former student is analogous to the actions of the petitioners in the Blood and Inglis cases. In each of those cases, the courts found that petitioners acted in the scope of their employment and in the discharge of their duties when they actually struck students. Here, Ms. Sagal-Cotler was not acting for personal motives unrelated to the furtherance of her employer's business. Rather, like the petitioners in Blood and Inglis, appellant's act of disciplining her student, though inappropriate, was unequivocally in the disciplinary proceeding." See Respondents' Brief at 8-9. Such contentions are erroneous and misleading. As a paraprofessional, appellant was not entitled to a "disciplinary proceeding" prior to being subjected to discipline at the hands of her employer (i.e. her school principal). Rather, appellant's school principal determined that she had engaged in corporal punishment and disciplined her for the same by suspending her without pay for ten days, without recourse to any "disciplinary proceeding." II furtherance of respondents' business. Cf Inglis, 180 Misc.2d at 158-59 (noting that petitioner was working at her normal and customary place of employment, that is, teaching a sixth-grade music class when she engaged in the disciplinary act at issue and that the discipline of students is a normal and customary part of a tenured teacher's employment). Therefore, appellant is entitled to defense and legal representation pursuant to Education Law § 3028. The cases cited by respondents do not support its denial of a defense for appellant, in that the acts involved in those cases were all clearly outside the scope of the petitioner's employment and in the furtherance of the employer's business. See Matter of Williams v. City ofNew York, 64 N.Y.2d 800 (1985) (denying a New York City correction officer legal representation in a federal action which arose out of his act of shooting a man while he was off duty); Perez v. City ofNew York, 43 A.D.3d 712 (1 st Dep't 2007) (finding that a police officer did not act in the scope of her employment in causing the arrest of an individual by engaging in a personal dispute with that individual "without any genuine official purpose" and "motivated by personal pique"). Additionally, as the petitioners in Matter of Williams and Perez were not school employees, those cases did not involve the interplay between the General Municipal Law and the Education Law, which is at the heart of the instant matter. Therefore, these cases are inapposite and should be disregarded by this Court. 12 B. The City's Determination Denying Appellant Legal Representation In The Civil Action Is Not Entitled To Deference Respondents have failed to establish that the courts should uphold or give deference to their determination not to represent appellant. Unlike the authority given Corporation Counsel under the General Municipal Law, under Education Law § 3028, respondents have not been given the authority to determine whether or not an employee is acting within the scope of employment. Instead, pursuant to § 3028, the school board's role "is similar to that of an insurance company which must decide if a defense is owed under its policy" and that "'if the insurer is to be relieved of a duty to defend it is obligated to demonstrate that the allegations of the complaint cast that pleading solely and entirely within the policy exclusions, and, further, that the allegations, in toto, are subject to no other interpretation. '" See Matter ofInglis., 180 Misc.2d at 158 (citation omitted). C. Respondents Have Failed To Distinguish Timmerman From The Instant Matter Respondents contend that appellant's reliance on Timmerman v. Bd. ofEduc. ofthe City Sch. Dist. of the City ofNew York, 50 A.D.3d 592 (lst Dep't 2008), is misplaced on the grounds that Mr. Timmerman did not engage in corporal punishment and Mr. Timmerman was not the subject of a disciplinary proceeding for engaging in misconduct. This attempt to distinguish Timmerman should be rejected. 13 Like the allegations underlying the criminal action III Timmerman, the allegations underlying the civil action here arose out of disciplinary action that Ms. Sagal-Cotler took against a former student. Respondents indirectly concede as much by acknowledging that three students accused Mr. Timmerman of "touching them inappropriately" "in retaliation" for Mr. Timmerman's act of contacting these students' parents after they had been disruptive in his class. See Respondents' Brief at 11-12. Consequently, the court's holding in the instant matter squarely contradicts that of the Timmerman Court. Furthermore, the allegations at issue in Timmerman were arguably much more egregious than those in the instant matter, as Mr. Timmerman was arraigned on several counts of sexual abuse and child endangerment based on allegations that he inappropriately touched students. Education Law § 3028 simply states that indemnification is required in any civil or criminal proceeding "arising out of' disciplinary action. Nothing in the text of this statute supports the limited reading of the statute which respondents propose, which is that employees who are subject to discipline on the basis of allegations of corporal punishment are excluded from the protection of Education Law § 3028. Additionally, neither Mr. Timmerman nor Ms. Sagal-Cotler was the subject of a disciplinary proceeding. In Timmerman, respondents asserted that Mr. Timmerman was not entitled to relief under Education Law § 3028, even though he had not been disciplined in connection with the allegations that gave rise to the 14 criminal proceeding initiated against him by three students. Here, respondents take the contrary position, by contending that Ms. Sagal-Cotler is not entitled to legal representation because she was disciplined in connection with the allegations that gave rise to the civil action initiated against her by her former student. Respondents' contradictory position with respect to this issue serves as a tacit admission that the determination to grant or deny an employee legal representation in a legal action that arises out of the discipline of a student is not dependent on whether the subject employee was disciplined for engaging in the conduct underlying the subsequent lawsuit. Finally, respondents' assertion that Timmerman did not involve the interplay between Education Law § 3028 and General Municipal Law § 50-k is disingenuous to the extent that both statutes were in existence during the time that the First Department determined Timmerman. Therefore, their interplay was certainly in issue. D. Education Law § 3028 has not been superseded by Education Law § 2560 Despite respondents' contentions to the contrary, Education Law § 3028 has not been superseded by Education Law § 2560. Respondents' argument regarding the specificity of Education Law § 2560 relative to that of Education Law § 3028 is flawed because Education Law § 3028 is more specific in scope than Education Law § 2560. Specifically, Education Law § 3028 is limited to civil or criminal 15 actions or proceedings specifically "arising out of disciplinary action taken against any pupil of the district" whereas Education Law § 2560 and General Municipal Law § 50-k contain no such limitation. As such, Education Law § 3028 is more narrowly-tailored in scope than Education Law § 2560 and, therefore, governs the circumstances underlying the instant matter. Respondents cite to legislative history III support of their assertion that Education Law § 2560 trumps Education Law § 3028. Specifically, respondents focus on a letter, dated July 3, 1979, submitted by Mayor Edward 1. Koch to Governor Hugh L. Carey. This letter advocated for the development of legislation which provides uniform indemnification of all New York State employees. In 1979, the Legislature amended Education Law § 2560. Appellant does not dispute that the principal purpose of the 1979 amendments was to widen the applicability of representation and indemnification requirements. The sponsor of the bill noted that, at the time of these amendments, policemen, firemen, and teachers in New York City had already been receiving the benefit of indemnification. Thus, the sponsor stated that "there seems to be no justification to limit such indemnification to these professions." CR. 91).3 However, in an effort to remove "the specter of possible liability hanging over [all New York City public employees]," the Legislature extended the benefit of indemnification previously enjoyed by 3 Parenthetical referenced preceded by "R." identify the pages in the Record on Appeal where the facts asserted are located. 16 policemen, firemen, and teachers to other City employees. (R. 92). In doing so, the Legislature did not repeal or scale back the protections already afforded to teachers pursuant to Education Law § 3028. Therefore, respondents' reliance on the history underlying the enactment of Education Law § 2560 to support its position is misplaced. POINT II RESPONDENTS' "PUBLIC POLICY" ARGUMENT SHOULD BE REJECTED BECAUSE RESPONDENTS HAVE IDENTIFIED NO PUBLIC POLICY THAT WOULD ABROGATE APPELLANT'S RIGHT TO LEGAL REPRESENTATION IN THE CIVIL ACTION Respondents fail to identify an established public policy that would mandate their denial of legal representation to appellant. Respondents assert that the strong public policy against corporal punishment in this State, coupled with the determination of the respondent Board to discipline those employees who engage in corporal punishment, render it irrational to require the public to provide a legal defense for actions which both respondents and appellant found to be "indefensible.,,4 Respondents mischaracterize the dissent's finding, stating that the dissent "condoned" Ms. Sagal-Cotler's action by determining that her "contact with the student obviously constituted disciplinary action taken within the scope of 4 Although appellant apologized for her conduct, there is no evidence in the record underlying this matter suggesting that appellant found her act to be "indefensible." In fact , appellant offered an explanation for her conduct, explaining that she had lost her temper. (R. 26, 73). 17 her employment."s Finding that an employee has a statutory entitlement to an attorney to defend her is not synonymous with "condoning" the actions that gave rise to the conduct alleged in such accusations. Moreover, neither the text of the statute nor the legislative history evinces any intent to limit school boards' obligation to provide employees with legal representation in circumstances in which they determine that an employee has violated some rule or regulation. Furthermore, unlike the "public policy" reasons proffered by respondents, there is a countervailing public policy that weighs heavily in favor of providing Ms. Sagal-Cotler with legal representation: protection of a modestly compensated public school paraprofessional against legal fees incurred by defending herself in a proceeding arising out of an action taken within the scope of her employment. Public policy favors a broad construction of the protections of Education Law § 3028 in favor of the school employees that fall under its purview, such as Ms. Sagal-Cotler. See, e.g., Ricca v. Bd. ofEduc., City Sch. Dist. ofCity ofNew York, 47 N.Y.2d 385, 397 (1979) (finding that to effectuate the Legislature's intent behind the tenure system in the Education Law, "it is necessary to construe the tenure system broadly in favor of the teacher, and to strictly police procedures which might result in the corruption of that system ...."). This countervailing public policy outweighs respondents' bald assertion that "it makes no sense to 5 On page 13 of Respondents' Brief, respondents misquote the finding of the dissent, in stating that appellant's contact with the student obviously constituted disciplinary action taken "without" the scope of her employment, rather than "within" the scope of her employment. 18 reqUIre the public to provide a legal defense" in the instant matter. This unsupported assertion does not abrogate appellant's right to legal representation pursuant to Education Law § 3028. CONCLUSION Based upon the foregoing facts, arguments and authorities, the Order of the Appellate Division, First Department, should be reversed, the Order and Judgment of the Supreme Court reinstated, and respondents directed to immediately provide appellant with legal representation in the civil action, as well as reimbursement for all reasonable legal fees incurred in her defense of the civil action to date. Dated: October 26, 2012 New York, New York Respectfully Submitted, RICHARD E. CASAGRANDE 52 Broadway, 9th Floor New York, New York 10004 (212) 533-6300 By: ~r;.~ ARlANA A. GAMBELLA Of Counsel 19