legal & legislative update

Guercio & Guercio, LLP

Legal & Legislative Update

Presented to:

NEW YORK STATE ASSOCIATION OF MANAGEMENT ADVOCATES

FOR SCHOOL LABOR AFFAIRS, INC. 37th ANNUAL SUMMER CONFERENCE

July 22, 2014

By:

Kathy A. Ahearn, Esq.Erin M. O’Grady-Parent, Esq.

Guercio & Guercio, LLPwww.guerciolaw.com

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http://www.guerciolaw.com/

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Legal Developments

Significant developments the courts arbitrators PERB Commissioner of

Education State guidance

Amendments to statute regulations


Discipline of Tenured Teachers

Is a tenured teacher’s right to “confront witnesses against her” violated by her exclusion from her §3020-a hearing while a complaining witness testified?

The court in Stergiou v. NYC Dept of Education, 106 A.D. 3d 511 (2d Dept 2013) found that it was.

Complaining witness was a student; claimed teacher hit him. He was the only witness.

HO excluded teacher from hearing when student testified.

Teacher appealed; claimed her constitutional and statutory right to confront was violated.



Court: §3020-a does not confer an absolute right to confront witnesses under all circumstances.

The record did not support a “compelling competing interest of the student” which might have warranted excluding the teacher. No finding that the teacher’s presence would cause trauma to the

student. No finding that teacher’s presence would substantially interfere with his

ability to testify. And, the teacher waived any right by failing to object to her

exclusion at the hearing. Court remanded to HO to take testimony in teacher’s presence.


Discipline of Tenured Teachers Rubino v. City of New York, 106 A.D. 3d 439 (1st Dept

2013) demonstrates how difficult it can be to terminate a tenured teacher with a clean disciplinary record.

Teacher was terminated by an HO after it was proven at a hearing that she posted remarks on her FACEBOOK page. She appealed.

These remarks were posted shortly after a student in another school had drowned on a field trip: “ thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS. They are the devils [sic] spawn.”



On appeal, the court found the penalty of termination to be “shocking to one’s sense of fairness” and remanded to the HO for a lesser penalty.

Court: The remarks were “clearly inappropriate”, but: They were made only to the teacher’s online friends. They were made only to vent frustration after a difficult day. She had a clean employment record after 15 years. She expressed remorse.



In Matter of Brito v. Walcott, 115 A.D. 3d 544 (1st Dept. 2014) and Matter of Mauro v. Walcott,115 A.D. 3d 547 (1st Dept. 2014), the appeals court remanded two related teacher disciplinary cases for imposition of a lesser penalty.

Two teachers were discovered in one of their classrooms engaged in a naked tryst while a student performance was taking place in the school auditorium; neither teacher was on duty; in the building instead to see the performance.



Charges brought; two different arbitrators imposed the penalty of termination (the conduct was serious, showed poor judgment when students were in school, and the incident impacted the school’s reputation and function).

Both teachers appealed to Supreme Court. One was unsuccessful; the other convinced a different judge to remand for a new hearing.



One teacher appealed in one case, and the district appealed in the other.

In remanding on the issue of penalty, the Appellate Division noted: Teachers were not in school in their official capacity. Incident involved a consenting adult colleague and there were no

student witnesses. Both teachers had unblemished disciplinary records, and satisfactory

performance records. Although the incident was a lapse in judgment, no evidence that it was

more than a one-time mistake. No evidence that the conduct would affect their ability to teach or an

intent to harm a student.



The statute of limitations in a §3020-a is normally 3 years from the occurrence of the misconduct.

There are exceptions, one of which is if the misconduct on which the charges are based constituted a crime at the time it occurred.

Teacher in BOE of Hauppauge v. Hogan, 109 A.D.3d 817 (2d Dept. 2013), was charged in 2010 for falsifying a job application in 2006 (failed to disclose he previously held a probationary teaching position with another district).



Teacher moved to dismiss the charges, claiming they were untimely.

The Appellate Court disagreed, and found for the District.

The District alleged that the teacher’s submission of a false application constituted the crime of offering a false instrument.

Court: the charges sufficiently plead facts that, if proven, would constitute the crime supporting the charge; charge is not time-barred.


Teacher DisciplineAlternative Procedures

Can a school district restrict the right of a tenured teacher facing disciplinary charges to proceed to a hearing under §3020-a rather than follow the alternative disciplinary process set out in the CBA?

The Appellate Division, 4th Dept., said NO, in Matter of Kilduff v. Rochester City School District, 107 A.D.3d 1536 (4th Dept. 2013).


Teacher DisciplineAlternative Procedures

The parties negotiated alternative disciplinary procedures that were then memorialized in the CBA.

The teacher asked to proceed under the traditional process set out in statute, and the district denied her request; she sued.

The lower court found in favor of the district. The Appellate Division reversed: The plain language of

§3020-a allows a tenured teacher to elect between a bargained alternative or the procedures specified in §3020-a.

Leave to appeal granted in 22 N.Y. 3d 854 (2013).


FMLA and Retaliation

In Davies v. NYC Department of Education, 2014 U.S. App. LEXIS 7759 (April 25, 2014), the 2d Circuit Court of Appeals, sided with the district and granted its motion for summary judgment, dismissing a teacher’s claim of retaliation under the FMLA.

The FMLA gives eligible employees the right to 12 workweeks per year of unpaid leave because of a serious health condition that makes the employee unable to perform the functions of her position.



After FMLA leave, the employee is entitled to return to work to her prior position or an equivalent position.

The teacher began at the school in September 2007, took FMLA leave from 12/1/07-1/22/08.

After she returned, she claimed administration retaliated against her by removing her from previously assigned classroom, ignoring her complaints about disruptive students, and subjecting her to intense scrutiny and evaluation.



Court: Retaliation = a “materially adverse action” by the employer.

A “materially adverse action”= any action by employer that is likely to dissuade a reasonable worker in plaintiff’s case from exercising her legal rights.

Court: the reassignment and failure to respond to complaints do not amount to material adverse actions.


FMLA Retaliation

Court assumes that poor evaluations DO equate to materially adverse actions.

However, the district introduced evidence of poor performance, including numerous unsatisfactory ratings, and complaints from students and parents re: her performance from 3/08-4/09.

This documentary evidence, kept in the record by the district, was critical to the district’s ability to articulate a legitimate, non-discriminatory defense.


Employee Speech

Do teachers’ rights to engage in constitutionally protected speech have to yield to safety concerns?

The Court of Appeals said YES in Santer v. East Meadow Union Free School Dist., ___ N.Y.3d ____, May 6, 2014.


Employee Speech

In Santer, teachers engaged in a picketing demonstration as part of an ongoing 3-year labor dispute. One rainy day, teachers parked their cars in front of the school with signs in the car windows. The parked cars created heavy traffic and forced students to cross through traffic to get to school.

District commenced 3020-a proceedings against teachers for creating a health and safety risk.

Arbitrator found teachers guilty of misconduct and imposed monetary fines. Teachers sued to vacate the awards.


Employee Speech

Court of Appeals concluded that the teachers’ picketing demonstration constituted “speech” under the First Amendment.

Court applied Pickering two-part inquiry. First, found the speech related to a matter of public concern. Second, applying a balancing test (weighing individual interests vs. public employer’s interests) found that the district’s interests in maintaining an orderly, safe school outweighed the teachers’ free speech rights.

Court further noted that there was no evidence that the disciplinary actions were motivated by the content of the speech but rather because the parking demonstration was disruptive and created potentially unsafe conditions for students.


Termination and APPR

In Matter of Evans v. Hempstead U.F.S.D., Sup. Ct., Nassau Co., March 12, 2014 (Janowitz, J.S.C), the court invalidated the termination of probationary principals where their terminations occurred before their APPRs were completed.

Court noted that APPRs are required to be a “significant factor” in employment decisions and the district’s failure to make any attempt to conduct the requisite APPRs for the principals prior to their termination violated Education Law 3012-c and rendered their terminations null and void.


Scope of Employment

Does a school district commit an improper practice when it unilaterally assigns additional duties to an employee covered by a collective bargaining agreement?

It depends. General rule: Employer can unilaterally assign additional

duties without bargaining those duties, if: The duties are part of the “essential character” of the

employee’s function and their addition does not alter the “essential character” of the position; and

The newly assigned duties don’t lengthen the workday or significantly increase the workload.


Scope of Employment

In Glen Cove Teachers Ass’n v. Glen Cove City School District, 46 PERB 4609 (2013), a PERB ALJ found that a school district did not commit an unfair labor practice when it unilaterally required school social workers, psychologists and speech pathologists to assume new duties involving paperwork and Medicaid reimbursement, to deliver services in a way that improved documentation, and to receive training in new reporting requirements.


Scope of Employment

Union claimed these were mandatory subjects of bargaining, impacting “terms and conditions of employment.”

ALJ: Training during normal work hours is a managerial prerogative; completion of Medicaid reimbursement forms was a task incidental to members’ essential role of providing services to disabled students; taking contemporaneous notes was an inherent part of their professions; using new Medicaid classifying numbers was not new to scope, as staff already were required to use some type of classification system.

District can also newly require staff delivering these services to be licensed, because license was a federal prerequisite to obtaining a National Provider Identification Number, which was an essential aspect of the position’s basic function.


Violation of Public Policy

In Matter of Board of Education of Valhalla Union Free School District v. Valhalla Teachers Association, 112 A.D.3d 620 (2d Dept. 2013), the Appellate Division, 2d Dept. found that a provision in a CBA, bargained and agreed to by the parties, was void as against public policy.

Spanish teacher retired, and a replacement was hired. Then an ESL teacher was excessed. Union filed a grievance, arguing the ESL teacher (who was certified in Spanish) was entitled to the Spanish position.


Violation of Public Policy

The Union rested its argument on a CBA provision that requires the board to appoint a certified teacher whose position is excessed to a vacant position in the teacher’s area of certification.

Court: Rejects that argument because while certification is a central qualification, the board has discretion under Education Law to prescribe additional qualifications.

By mandating the appointment, the CBA divests the board of its authority to inquire into other qualifications it may want to prescribe.

CBA provision void as a violation of public policy.


Retiree Health Benefits

In Kolbe v. Tibbetts, 22 N.Y. 3d 344 (2013), the Court of Appeals considered whether a school district could unilaterally alter the health insurance benefits of certain retirees of the district.

The parties’ collective bargaining agreement (“CBA”) concerning health insurance in retirement, that was in effect at the time the employees retired, stated “The coverage provided shall be the coverage which is in effect for the unit at such time as the employee retires.”



After the employees retired, the District executed a successor CBA that implemented changes to the retirees’ co-pays. The retirees sued alleging breach of contract.

District argued that changes were permitted under the Insurance Moratorium Law (Ch.30 L. 2009) because corresponding changes were made to the benefits of active employees.



Court disagreed. Held that the Insurance Moratorium Law “only

prescribed a bottom floor, beneath which school districts and certain boards were forbidden to go in diminishing benefits. It was not meant to eviscerate contractual obligations and decades of contract law.”

Therefore, neither the parties nor the employer alone could alter the retirees’ vested rights.

Remanded back to trial court to determine the level of benefits at retirement.


Duty of Indemnification

Does a district have a duty to defend lawsuits against employees who may have violated State law or school policy in disciplining a student?

The Court of Appeals in Matter of Sagal-Cotler v. BOE of the City of New York, 20 N.Y. 3d 671 (2013) said YES.



Education Law requires districts to provide an attorney and pay attorney’s fees and expenses related to the defense of an employee in a civil or criminal action involving disciplinary action taken against a student “while in the discharge of [their] duties within the scope of [their] employment.”

Issue: Were these employees acting “within the scope” when they slapped or hit a student?

NYC argued they were NOT; that they were in violation of the State law against corporal punishment, so how could violation of law be “within the scope of employment?”



Court: The right to defense does not apply only to employees who are carrying out their duties lawfully and properly.

If that were so, how could this square with the statute’s requirement that they also be provided a defense in a criminal case?


School District Liability

Was the school district liable for the injuries sustained by a student as a result of another student’s intentional acts, where the victim’s father had warned the school that he believed his daughter would be attacked?

In Conklin v. Saugerties Central School District, 106 A.D. 3d 1424 (3d Dept. 2013), the court said NO.



Victim’s father saw a posting on MySpace indicating his daughter was going to be beaten up by another student the next day. He called the district.

Early the next morning, the district called in both students, held a mediation; both students denied any intention to fight.

The alleged perpetrator was also spoken with individually, and warned of possible criminal penalties if she began a fight. She again denied intent.



Later in the day, attack occurred. Student was pushed to the ground and repeatedly punched in the head.

Father sued. District moves for summary judgment. Motion granted. Court finds that a district will only be liable for

injuries intentionally inflicted on another where it is established that the dangerous conduct “could have reasonably been anticipated” – where school officials had actual or constructive notice of prior similar conduct.

District took all reasonable steps to investigate, and reasonably believed, based on the denials of the students and the actions taken, that an attack would not occur.

Under the circumstances, the district could not have reasonably anticipated that the fight would take place.


Unilateral Parental Placement

In C.L. v. Scarsdale UFSD, 744 F. 3d 826 (2d Cir. 2014), the Second Circuit Court of Appeals held that the IDEA’s LRE requirements do not apply to unilateral private placements.

Parents placed their child, arguing that the District placement did not provide a FAPE.

The law has been that parents can get reimbursement if there is a finding that the district failed to provide a FAPE and the parentally selected placement is appropriate.


Unilateral Parental Placement

Under the Scarsdale case, districts will no longer be able to argue against reimbursement on the grounds that the placement is “more restrictive” than a public school setting.

Court found that while restrictiveness is a factor to be considered in assessing the “appropriateness” of a parent’s choice of placement, it is not appropriate to compare the restrictiveness of the chosen placement with the public school setting. Private schools specializing in educating students with disabilities are

necessarily more restrictive settings. If private placements are required to be as least restrictive as public

school settings, it would undermine the rights of parents to unilaterally withdraw a child from public school.


Extended School Year Services In T.M. v. Cornwall Cent. School Dist., ___ F.3d ___, 2014 WL

1303156 (2d Cir. 2014), the Second Circuit Court of Appeals held that the IDEA’s LRE requirement “applies in the same way to [extended school year] ESY placements as it does to school-year placements.”

Parents alleged the district failed to provide a FAPE to their child when the district proposed an ESY placement in summer program operated at the district that was open to only to students with disabilities. Parents claimed that the district violated LRE requirement because it placed child in a special education classroom rather than a general education classroom. The district argued that it did not operate a mainstream summer program so no violation of LRE.


Extended School Year Services

Second Circuit disagreed with State Review Officer and departed from prior State and Federal guidance.

Under the T.M. case, to comply with the LRE requirement for the ESY component of a 12-month program, the CSE must consider the appropriate setting from among the continuum of alternative placements in which the student’s special education needs can be met during the summer. This may require the student’s placement in an integrated classroom, another public school district or a private school. Districts need not create a new mainstream summer program but must consider continuum.


Extended School Year Services

Court concluded that the proposed ESY placement violated the LRE requirement, denied a FAPE to the student and remanded the matter to District Court for further action.

Court suggested that if no appropriate ESY placements are available, or if practical issues make it objectively impossible or impracticable to provide a SWD an ESY program in the LRE parents may not be entitled to reimbursement.


Seniority Rights

General rule: A teacher who voluntarily severs his relationship with a district through retirement or resignation forfeits his seniority rights under Education Law §2510.

Not so in Alessi v. Board of Education, Wilson CSD, 105 A.D.3d 54 (4th Dept. 2013).

Spanish teacher resigned at district’s request after she failed to meet the requirements for permanent certification in Spanish.

She was then immediately rehired as a full-time substitute in the same tenure area, as promised by the superintendent.


Seniority Rights

She was re-hired as a full-time probationary teacher when she obtained permanent certification.

Due to budget cuts, she was later excessed as the least senior teacher in her tenure area.

Because she had resigned, the district computed her seniority from when she was rehired as a probationary teacher (assuming she relinquished all previously accrued seniority upon resignation).

She sued; court found in her favor.


Seniority Rights

Court: An employee can relinquish seniority rights by virtue of a resignation if the relinquishment is “knowing and voluntary.”

Here, the resignation was a “legal fiction” so that district could comply with Education Law, but teacher could continue with full-time duties.

Court found it significant that neither district nor teacher followed the requirements of §3019-a which governs resignation/termination; thus, there was no actual break in service.


Seniority & Resignation

What happens where an employee resigns from a position in one tenure area to take a position in another tenure area? Are seniority and tenure rights impacted?

In Appeal of Kwasnik, Decision No. 16,419 (October 5, 2012) the Commissioner found that a teacher’s resignation from a position in one tenure area to take a position in another tenure area caused her to relinquish her tenure and seniority rights in the first tenure area. Commissioner found resignation to be knowing and voluntary even where the teacher had expressed reservations about resigning.


Seniority & Resignation Teacher challenged Commissioner’s decision. In Kwasnik v. King, Sup. Ct., Albany Co., September 30, 2013,

Court annulled the Commissioner’s decision. Court found that the facts did not demonstrate any intent or

affirmative act by the teacher to severe all aspects of her employment relationship with the district and thereby relinquish her seniority rights.

Notably, teacher tendered her resignation to preserve her employment with the district (in another position), there was no actual break in service with the district as a result of “resignation”, and teacher’s salary and benefits continued as if there was no break in service.

Notice of Appeal filed November 13, 2013.


Use of School Facilities

Bronx Household of Faith v. Board of Education of the City of New York, 2014 WL 1316301, ____F.3d___(2d Cir., April 3, 2014) – fifth time it has reached the 2nd Circuit! Dispute started in 1997.

Whether a public school district must make its facilities available for the conduct of “religious worship services,” for which there is no secular counterpart?



NYC’s regulation: Permitted use of school facilities outside of school hours by outside organizations and/or individuals, free of rent, with permission of the district, except “no permit shall be granted for the purpose of holding religious worship services, or otherwise using a school house as a house of worship.”

Bronx Household clearly stated it wanted to conduct Christian, religious worship services on a Sunday. NYC thus was able to rely on this representation, and was not in

danger of becoming “excessively entangled” in religion by having to examine into and make a judgment about what constituted a “religious worship service.”



Lower Court: Enjoined NYC from enforcing the rule. Constitution’s guarantee of the right to exercise

religion was violated by the rule as the district’s schools were the only location at which the Bronx Household’s full congregation could meet without having to curtail their other religious practices.



On appeal, 2nd Circuit reversed. Regulation does not violate the church’s free-

exercise rights under the First Amendment. NYC does not charge rent for the use of the

premises. Thus, NYC is subsidizing any permissible activity that occurs on its premises.

There is no constitutional right that requires the government to finance the exercise of a fundamental right, including the right to exercise one’s religion.



There was no evidence that the regulation was motivated by hostility toward religion.

The regulation could not be reasonably perceived as hostile toward religion, given the range of other religious activity permitted by the regulation (e.g., meetings of religious groups; reading and discussing the Bible, singing hymns, and saying prayers).

The regulation was a reasonable attempt to avoid the risk of liability under the Establishment Clause (i.e., appearing to “endorse” religion or a particular religion).


Prayer at Public Meetings

In Town of Greece, N.Y. v. Galloway, ___ S. Ct. ___, May 5, 2014, the U.S. Supreme Court upheld the practice of a town board in opening its monthly board meetings with a sectarian prayer.

Court noted that the ceremonial prayers delivered in the town were consistent with prior judicial precedent which permits legislative prayer and with the tradition of such practice. The prayers were “meant to lend gravity to the occasion and reflect values long part of the nation’s heritage.


Prayer at Public Meetings Court found that the town maintained a policy of non-

discrimination and made reasonable efforts to invite all faiths to participate. The fact that nearly all congregations in town were Christian did not require the town to search beyond its borders.

Court further held that there was no requirement for the prayer to be non-sectarian.

Prayer, however, is not without limits. If solemn and respectful, for purpose of reflecting on common ends –permissible. If, invocations are exploited to “denigrate nonbelievers or religious minorities, threaten damnation or preach conversion” – problematic.

Decision may pave the way for school boards to adopt such a practice.


Unsuccessful Lawsuit to Prevent Disclosure of Data to inBloom

On November 13, 2013 a suit was filed by 12 NYC public school parents in Supreme Court, Albany County, against SED, the Commissioner and the Regents to prevent them from releasing any personal student information to inBloom.

Claim: Disclosure of a child’s personally identifiable data without parent consent violates New York’s Personal Privacy Protection Law.


Matter of Davids, et al., v. King, et al.

Petitioner’s initial request for a TRO was denied. While the decision was pending, on or about January 9, 2014,

SED announced data upload to inBloom had been delayed until April due to “technical reasons.” Coincidence?

By decision dated February 5, 2014, the Court dismissed the parents’ petition: Disclosure by SED of personally identifiable student info is authorized

by Personal Privacy Protection Law. There was a reasonable basis for the decision to enter into the

agreement with inBloom and that disclosure and transfer of data will be for a legitimate purpose.

Since disclosure is permitted by law, SED does not need parents’ permission to disclose student information to inBloom.


2014-2015 State Budget Common Core Implementation Reform Act


Stop the Presses! The Bloom Is Off the Rose!

“Common Core Implementation Reform Act” enacted as part of the 2014-15 State Budget (Ch. 56 of the Laws of 2014 Part AA).

Commissioner and SED are prohibited from providing any “student information” to a Shared Learning Infrastructure Service Provider SLISP (i.e., inBloom) and must take immediate steps to ensure that any information provided is deleted and destroyed. Note: The Act adopts the FERPA definition of “personally identifiable

information”, but also includes a broader definition of “student information”, which includes not only personally identifiable information, but also “any other individual student records and shall also include de-identifiable information which means a collection of data or information that has been altered with the goal of making the student or students associated with such data or information permanently unknowable.”

Effectively ends SED’s relationship with inBloom. SED may, however, contract with a BOCES to develop educational data system

tools.


Following adoption of State Budget, inBloom announced it will close.

Effective immediately, school districts can opt-out of providing personally identifiable info, as defined in FERPA, to a SLISP (like inBloom), or a third-party dashboard operator.

Districts can ask, at any time, that its personally identifiable information not be shared with a SLISP or dashboard operator.

SED must then take all action necessary to prevent/prohibit sharing and delete/destroy any such info already held by either.

inBloom Is No Longer “In Bloom”


Ban on Standardized Testing Pre-K and Grades K-2

Amends Education Law §3602-e(15) and adds §305(44); effective immediately.

Prohibits districts from administering “traditional standardized tests” in pre-K and K-2; except that: assessments that require students to perform real-world tasks that demonstrate application of knowledge and skills, or are required by federal law, can still be administered.

Commissioner is required define “traditional standardized tests” in regulations.

Does not supersede any CBA provisions pertaining to APPR entered into prior to the effective date, which roll over until a subsequent plan or amendment is agreed to by the parties and approved by the Commissioner.


Ban On Placing Standardized Test Scores on Transcripts/Records

Amends Education Law §305 by adding new subdivisions (45) and (46).

Prohibits districts from placing State Standardized test scores for ELA or math grades 3-8 on a student transcript or in a permanent student record.

When the 3-8 test scores are sent to parents, they must include a plain and conspicuous notice that the grades are being provided only for diagnostic purposes and will not be included on transcript or permanent record.


Ban on Using Tests for Promotion & Placement Decisions

Amends Education Law §305 by adding new subdivision (47).

Districts cannot use test scores on the 3-8 ELA and Math assessments as the sole or primary factor for placement or promotion decisions, but can consider scores as one of several multiple measures.

Districts must annually notify parents of grade promotion and placement policies and how developed. Notice may be given on website or in an existing informational document.


Testing Time Limits

Amends Education Law §305 by adding a new subdivision (49).

As of July 1, 2014, the Act limits the amount of time districts may devote to administering required State assessments to an amount not exceeding, in the aggregate, 1% of the minimum required annual instructional hours for each grade.

In addition, the Act limits the amount of time districts may devote to standardized tests that are not specifically required by State or federal law to an amount not exceeding, in the aggregate, 1% of the minimum required annual instructional hours for each grade.


Testing Time Limits

The amount of time spent devoted to test preparation under standardized testing conditions for each grade cannot exceed, in the aggregate, 2% of the minimum required annual instructional hours for each grade.

Time on teacher administered classroom exams, quizzes, portfolio reviews or performance assessments do not count toward these limits.

Commissioner directed to issue regulations necessary to ensure these limitations.


Effect of Reduced Standardized Testing on APPR Plans

Amends Education Law §3012-c(2) by adding new paragraphs (k-1) and (k-2) to require the Commissioner to review an APPR Plan within 10 business days of submission if the material change is related solely to the elimination of standardized tests.

Commissioner can review only the “changed” parts of the Plan.

School board must explain and submit material changes on a form prescribed by the Commissioner and certify that no other material changes have been made.


APPR and Common Core Regulatory Amendments

In February and March 2014, the Regents adopted emergency regulations to make certain adjustments to Common Core implementation and APPR.

In May 2014, the Regents made additional changes to the regulations to reflect the new Common Core Implementation Reform Act.

Effective 3/2/14, all traditional standardized assessments for students in grades K-2 to be removed from the list of approved student assessments for K-2 students for use in APPR Plans for 2014-15 and after. Any district/BOCES with an approved APPR Plan for use in 2013-14 that uses

such assessments will stay in effect under the rollover provisions of §3012-c(2)(1) and the district/BOCES can continue to use those assessments until a material change is made and approved by the Commissioner to eliminate such use.



Commissioner must conduct an expedited review within 10 business day of submission of any material changes to an APPR Plan that relate solely to the elimination of unnecessary assessments of students. The Commissioner will review only those parts of the Plan that relate to those assessments. Districts will be required to submit the changes on a prescribed form and certify that no other changes have been made.



All APPR Plans submitted to the Commissioner after 3/2/14 for use in 2014-15 or after must certify: ▪ The amount of time devoted to traditional standardized

assessments that are not specifically required by state or federal law for each classroom or program of the grade does not exceed, in the aggregate, 1% of the minimum in required annual instructional hours for such classroom or program of the grade; and

▪ The amount of time devoted to test preparation under standardized testing conditions for each grade does not exceed, in the aggregate, 2% of the minimum required annual instructional hours for such grade.



Remove 6th-8th grade social studies and 6th-7th grade science from the definition of “core subjects” for the State Growth or “other comparable measures” subcomponent to give districts flexibility to use a school-wide, group or team measure.

Prohibit the Commissioner from approving any APPR Plan for use in 2014-15 or later that provides for standardized tests to students in K-2 (except for diagnostic purposes or as required by federal law).

Commissioner’s regulations include a definition of “traditional standardized assessments” and examples of what are/are not “traditional standardized assessments.”

Commissioner’s regulations also incorporate Act’s Prohibition on use of 3-8 tests for grade placement or promotion and inclusion in official transcript/record.


Instructional Tools & PD

Amends Education Law §305 to add §305(50) and §305(51).

Requires the Commissioner to provide instructional tools and outreach materials to parents/families to assist them in understanding the purposes, elements and instructional changes relating to the Common Core, and how to support their child’s outcomes.

Requires the Commissioner to develop professional development tools, resources, and materials that districts can use to develop Common Core training programs for teachers and principals.


Data Privacy & Security - CPO

Adds a new §2-d to the Education Law. Commissioner required to appoint a Chief Privacy

Officer (“CPO”) within SED for a 3-year, renewable term. CPO charged with a non-exhaustive list of 7 functions

and given the powers to implement them. CPO must make available to public an inventory and

understandable description of the student, teacher and principal data elements collected with an explanation and/or legal regulatory authority outlining the reasons these elements are collected and the intended uses and disclosure of the data.


Data Privacy & SecurityData Collection

Unless the law provides otherwise, SED can only collect personally identifiable information that relates to an educational purpose and can only require districts to submit such information where law requires it or FERPA allows it.

Districts may not report juvenile delinquency records, criminal records, medical and health records, and student biometric information to SED unless law requires it or unless it is “educational enrollment data.”


Data Privacy & SecurityThird Parties

Personally identifiable info. may not be sold or used for marketing purposes.

Commissioner, with CPO, must enact regulations that establish standards for data security and privacy policies.

Contracts between districts and third parties must include a confidentiality requirement that the shared student, teacher or principal data be maintained consistent with law and policy.

Any contract that implicates personally identifiable data must include a data security and privacy plan outlining how the contractor will implement federal, state and local security requirements during the period of the contract.


Data Privacy & Security Rules Regarding Third Party Contractors

Third party contractors that receive student, teacher, or principal data are required to: Limit internal access to individuals with legitimate

educational interests. Use the records only for the purposes explicitly authorized

in the contract. Not disclose info to any other party without prior written

parental consent, unless required by statute or court order. Maintain reasonable safeguards to maintain confidentiality. Use encryption technology to protect data from

unauthorized disclosure while in motion or in its custody.


Data Privacy & Security Unauthorized Release of Data

Where security is breached, contractor must notify the district “in the most expedient way possible” and without unreasonable delay; district must notify parent (same schedule as above).

If teacher or principal data is released (breached) from the APPR, district must notify teacher/principal (same schedule as above).

Contractor must promptly reimburse the district for the full cost of notifications.


Data Privacy & Security Unauthorized Release of Data District must also report release to CPO. If CPO believes release is criminal, CPO must report to law enforcement (on same

schedule as previous slide). A range of graduated civil penalties is provided in the law for unauthorized

releases. Where CPO determines, after opportunity to be heard, that a contractor has

committed an unauthorized release, the CPO may: Preclude the contractor from accessing data from that district for up to 5 years; If action was knowing or reckless, preclude the contractor from accessing data

from any district for up to 5 years; If action was knowing or reckless, deem the contractor to not be a responsible

bidder for up to 5 years on any contract involving data access with any district; Require the contractor to provide training at its expense to all employees with

access to such data, prior to being given further access; and If action is determined to be without intent, knowledge, recklessness or gross

negligence, impose no penalty.


Data Privacy & Security Parents Bill of Rights

Each district must publish a “Parents Bill of Rights” on its website and include it in all contracts entered into with contractors that involve data receipt.

BOR must state that: Student data cannot be released/sold for commercial purposes; Parents have the right to inspect and review complete contents of

their child’s educational file; State and federal law protects confidentiality of data and firewalls,

encryption, etc. are in use by the district; A list of all student data elements collected by the State is available for

review; and Parental complaints regarding data will be addressed by [name and

title and contact info of designated individual].


Data Privacy & Security Parents Bill of Rights

BOR must also supplement information for each contract it enters into with a contractor that receives confidential data, including: The exclusive purpose for which the data will be used; How the contractor will ensure confidentiality; What happens to data upon the expiration of the contract; If and how the parent can challenge the accuracy of the data collected; Where the data will be stored and the security protections taken; and Any other elements developed by the CPO with input from parents and

stakeholders.▪ To receive input, the Commissioner must promulgate regulations for comment to

the CPO. BOR to be completed before July 30, 2014.


Alternate Assessments for Students With Disabilities and ELLs

Upon and to the extent allowed by any federal waiver issued by USDE, amends Education Law §305 by adding §305(48).

Allowing SWDs who are not eligible for the NYS alternate assessment, and whose cognitive/intellectual disabilities preclude meaningful participation in chronological grade level instruction, to be assessed based on instructional level rather than chronological age.

ELLs to be assessed with a State-administered allowing assessment that measures English Language development, rather than by the ELA exam for their first two years of enrollment.

Upon the approval of any federal waiver issued by USDE, requires the Commissioner to develop regulations.


Property Tax Credit

Amends NY Tax Law §606(bbb). Designed to incentivize local governments to share

services and reduce their financial burden on the taxpayer.

Gov. Cuomo says it will have the effect of “freezing” property taxes.

Ties to the “tax levy cap” - if a school district’s budget is within the cap (a maximum of 2% or the rate of inflation, whichever is less) the budget is considered to be a “freeze compliant budget.”

Not applicable to the Big 5.


Property Tax Credit

Eligible taxpayers whose primary residences are located in school districts with freeze-compliant budgets will receive a personal income tax credit for the 2014-15 taxable years.

Statute contains formulae for the amount of tax credit that will be provided.

Credit is available in FY 2015 only if the district stays within the cap and has a state-approved “government efficiency plan” in place.


Property Tax Credit The plan must “demonstrate 3 years’ savings and efficiencies of at

least 1% per year from shared services, cooperation agreements and/or mergers or efficiencies over the…2014-15 school year tax levy.”

Education Law §2023-b(1)(b) and (f) provides that “cooperation agreements” and Shared Services” may include procurement, real estate and facility management, fleet management, business and financial services, administrative services, payroll administration, time and attendance, benefits administration, other transactional HR functions, contract management, grants management, transportation services, facilities and functions, human services facilities and functions, customer service facilities and functions and information technology infrastructure, processes, services and functions.

Plan must be submitted to the Director of DOB by 6/1/15. The school superintendent must certify to the Commissioner of

Taxation that the district is within the cap in order for residents to be eligible.

U Pre-K and Teacher Excellence Funds

Adds Education Law §3602-ee to establish a statewide universal full-day pre-kindergarten program. Allocates $340 million of which $300 million is dedicated to NYC. Pre-K to be funded through grants awarded by SED.

Budget appropriates $10 million for the establishment of a teacher excellence fund for awards of up to $20,000 for teachers rated Highly Effective under APPR pursuant to a locally negotiated agreement.


Charter School Dissolution

Amends Education Law §2851(2)(t) to require that, upon the dissolution of a charter school, any public funds still in the custody of the school, after debts and obligations have been paid, shall be paid over to each school district having resident children served by the charter school in the year of dissolution, or the last year in which students were enrolled, in an amount proportionate to the number of students placed by each district and served in the last school year as compared to the total charter school population.

Inapplicable to funds attributed to gifts, donations, grants or other charitable contributions.


APPR “Safety Net”

In the final hours of this year’s legislative session, the State Legislature passed a bill (A.10168) which is reportedly intended to mitigate any negative consequences to classroom teachers and building principals whose APPR ratings were affected by the transition to the Common Core.

The legislation applies to any classroom teacher or building principal rated as Developing (“D”) or Ineffective (“I”) for the 2013-14 and/or 2014-15 school years where their APPR was based on State Assessments aligned to the Common Core (i.e. the 3-8 ELA and/or Math State tests).



The legislation prescribes a re-calculation methodology for any teacher or principal rated as D or I for the 2013-14 and/or 2014-15 school years only, to exclude any portions of their APPR that relied, in whole or in part, on the State’s 3-8 ELA and/or Math assessments (e.g. if both the 20% growth and 20% local measures are based entirely on the 3-8 ELA/Math tests the remaining 60% is “scaled up” such that it accounts for the entire 100% of the evaluation).


APPR “Safety Net” Legislation restricts the use of an original D or I

rating for such teachers or principals where the re-calculation methodology would have resulted in a higher rating for the teacher or principal.

In such case, the original D or I rating “shall not apply” to employment decisions, including termination, the grant or denial of tenure, expedited hearings under §3020-a, or retention decisions.

There is no restriction if the re-calculation does not improve the teacher’s or principal’s D or I rating.



In addition, the original rating of D or I shall not be used for purposes of the requirement for a teacher or principal improvement plan (TIP/PIP) but rather the re-calculated “designation” shall be used for such purpose.

With respect to disclosure to parents under Education Law §3012-c(10)(b), the legislation requires that both the original APPR rating and the “designation” pursuant to the re-calculation methodology shall be reported with an explanation of such additional designation.



What, if anything, can be done with an employee who receives a “safety net” re-calculation?

Notably, the legislation states “… that nothing … [in the legislation] shall be construed to prevent the use for the purposes … [of the employment decisions noted above] of the observations, local assessments or other measures of the performance of the teacher or principal other than their rating or a state assessment aligned with the common core, whether or not they were included in an … [APPR].”


June 2014 APPR Regulation Change

Education Law §3012-c(1) and the Rules of the Board of Regents state that “[n]othing … shall be construed to affect the statutory right of a school district or BOCES to terminate a probationary teacher or principal for statutorily and constitutionally permissible reasons other than the performance of the teacher or principal in the classroom or school, including but not limited to misconduct.” See also Education Law §3012-c(5)(b).

The amendment clarifies that the term “performance” as used in Education Law §3012-c(1) and in the Rules of the Board of Regents references the teacher’s or principal’s performance on the APPR measured by their overall composite rating.


APPR Guidance

SED Updated Guidance posted July 1, 2014.

APPR Guidance now 165 pages long!

Note updates to Q and As re: termination of probationary teachers (C11-15) and appeals (K5); new assessment and certification requirements (C38-C47); and APPR “Safety Net” (new Section Q).


Appeals to the Commissioner

In Appeal of Gordon, 53 Ed Dept Rep, Decision No. 16,582 (December 20, 2013), the Commissioner clarified the rules regarding the calculation of the 30-day time period for bringing an appeal in abolition cases.

Where a teacher claims that his services have been discontinued in violation of the excessing rules in Education Law 2510(2) and 3013(2) because he or she is not the least senior employee in the tenure area, the 30-day time period for commencing a 310 appeal begins on the effective date of the abolition of the position. Prior contrary opinions expressly overruled.


Appeals to the Commissioner On the other hand, where the wrong alleged by the

teacher is not that he or she should have been retained because he or she was more senior, but rather that the appointment of another teacher was in violation of law and the excessed teacher’s rights, a 310 appeal is timely if brought within 30 days of the date on which the other teacher commenced service in a position to which the excessed teacher claims he or she is entitled (e.g. in a case where the excessed teacher claims that the district has created a new position to which he or she is entitled or a claim that he or she is entitled to reinstatement to the position from a PEL).


Testing Misconduct

Effective May 14, 2014, the Commissioner’s regulations (8 NYCRR 102.4) were amended to require all school district and BOCES employees to report to SED “testing misconduct” on State assessments by a certified educator or any known conduct by a non-certified individual involved in the handling, administration or scoring of state assessments where that conduct might reasonably be considered a violation of Education Law 225 (which prohibits unlawful acts with respect to exams such as selling exam questions and answers).

Regulations contain a non-exhaustive list of 11 types of actions or omissions that constitute “testing misconduct.”


Testing Misconduct

Testing misconduct, assisting in the engagement of, or soliciting another to engage in testing misconduct and/or the knowing failure by a certified employee to report testing misconduct is deemed to raise a reasonable question of moral character under Part 83.

Regulations include anti-retaliation provisions that prohibit school districts and BOCES from taking adverse action against “whistleblowers.”


Special Education Impartial Hearings

Effective February 1, 2014, Commissioner’s regulations (200.1, 200.5 and 200.16) amended to address: certification and appointment of IHOs; consolidation of multiple due process complaints for the

same student; decisions of the IHO; the timeline for IHO to render decision; extensions of the timelines for an impartial hearing; the impartial hearing record; and withdrawl of a due process complaint notice.


Special Education Impartial Hearings

Regulations intended to ensure that impartial hearings held in a more efficient and effective manner and to address certain deficiencies in the hearing procedures.

In February and May 2014, SED issued Guidance and Questions and Answers regarding the new regulations. See http://www.p12.nysed.gov/specialed/dueprocess/home.html

http://www.p12.nysed.gov/specialed/dueprocess/home.html

http://www.p12.nysed.gov/specialed/dueprocess/home.html


SED Guidance: Health/Safety of Students With Disabilities

Issued on 11/15/13 and updated on 4/11/14 re: elopement of students with disabilities.

CSEs and CPSEs should assess whether students are susceptible to wandering/elopement.

If determination is that child is likely to elope, the committee must “ensure that a functional behavioral assessment is conducted and that the behavior is addressed through proper supervision and through an individualized behavior intervention plan based on the results of the FBA.


SED Guidance: Health/Safety of Students With Disabilities Suggested policies/procedures to prevent wandering/elopement to incorporate into the school

safety building plan: Staff training on awareness and response. Supervisory notification and 911 calls. Communication protocols with local police. Use of school-wide communication and alert systems. Pre-assignments for building and ground searches. Procedures for assuring that crisis response and law enforcement officials have access to floor

plans, blueprints, etc. Immediate family notification. ID students with known elopement behaviors to principals, hall monitors and security guards. Consider installation of door alarms. Ensure students with elopement behaviors carry basic ID at all times. When school personnel becomes aware of a concern about a child’s behavior re: wandering,

he/she should immediately report to supervisory staff and others working directly with the student.

When a behavioral concern is raised that was not considered by the CSE, the teacher or other staff should use appropriate discretion to request a CSE meeting to review, and if appropriate, revise the IEP.

Guercio & Guercio, LLP

Kathy A. Ahearn, Esq.Erin M. O’Grady-Parent, Esq.

24 Century Hill Drive 77 Conklin StreetLatham, NY 12110 Farmingdale, NY 11735(518) 690-7000 (516) 694-3000

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