Labor & Employment Law

Banning an individual from the appointing authority?s property while disciplinary charges are pending

Banning an individual from the appointing authority?s property while disciplinary charges are pending
Appeal of Anonymous from action of the Board of Education of the Mamaroneck Union Free School District, Decisions of the Commissioner of Education, No. 15,855, December 12, 2008

A teacher, while employed by the Mamaroneck Union Free School District, was served with disciplinary charges pursuant to Education Law Section 3020-a. Pending the outcome of the disciplinary proceeding against her, the teacher was suspended with pay and was informed that she would be allowed on district property only with the superintendent?s prior permission. She was allowed to contact appropriate district staff via telephone and email regarding her children?s education.

Subsequently the teacher?s husband was arrested and charged with second degree aggravated harassment for allegedly making threatening telephone calls to a district employee who worked with the teacher and was to be called as a witness in the disciplinary proceedings against her

This resulted in the district?s attorney informing the teacher?s attorney that, ?due to recent events in connection with this case, [the teacher] will no longer be permitted to be on school district property for any reason at this time.?

The teacher appealed this action, contending that the district?s decision to ban her from district property ?due to the acts of a third party? is arbitrary and capricious and bears no nexus to the disciplinary charges pending against her.?

The district opposed the teacher?s attempt to have the Commissioner determine that the permanent ban was ?null and void? and reinstate her limited access to district property that was in effect prior to the event involving her husband. The district argued that ?based on the serious nature of the disciplinary charges against the teacher and the threatening phone calls allegedly made by her husband, the ?temporary ban? on the teacher?s access to district property was necessary until [the district is] ?able to [e]nsure the safety of [district] employees.?

The district also argued that the ban was ?reasonable and limited in scope? and that it would ?re-examine the situation? if the teacher ?presents an affidavit stating that she had absolutely no knowledge or involvement in the threatening calls ....?

Education Law §1709(2) and (33), permits a board of education to establish rules and regulations concerning order and discipline in its schools and the courts have upheld restrictions on the access of district employees and school board members to school grounds. Typically such restrictions have been ?partial? and ?limited in nature.?

The district contended that the ban on the teacher?s access to district property is ?narrowly limited in scope? and therefore within its discretion, citing the Commissioner?s decision in Appeal of Anonymous (44 Ed Dept Rep 260, Decision No. 15,167).

The Commissioner said that the District?s reliance on 44 Ed Dept Rep 260 was misplaced as in that instance district?s limited restriction on a [physical education] teacher?s access to school district property was ?reasonably and narrowly limited in scope,? as it extended only to track meets, with the single purpose of restricting the teacher from contacting student athletes with whom she had previously been closely associated. That decision, said the Commissioner, noted that ?the ability of an employer to restrict activities of a paid employee outside working hours is not unlimited.

Here, said the Commissioner, the district imposed a total ban on the teacher?s access to district property. Although characterized as ?temporary? and ?for the time being,? there is no evidence in the record indicating when and under what circumstances the ban would be lifted.

Further, the Commissioner noted that the ban imposed was unlimited in scope, ?as it prohibits the teacher from entering district property for any reason (for example, to vote in an election or to attend parent/teacher conferences for her children), regardless of whether her presence at any particular activity or event bears any relation to the disciplinary charges pending against her.? Thus, said the Commissioner, he could not conclude that the ban imposed on the teacher was ?reasonably and narrowly limited in scope.?

In response to the district?s claim that the ban is ?necessary? for the protection of the district?s staff and students based on the serious nature of the disciplinary charges against the teacher and their possible relation to the criminal charges against her husband, the Commissioner said that although the disciplinary charges filed against the teacher and the criminal charges filed against her husband were serious, ?the record contains no evidence that [the teacher] poses a danger to the safety of students, staff and/or school property.?

The full text of the Commissioner?s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume48/d15855.htm

Full post as published by New York Public Personnel Law on December 23, 2008 (boomark / email).