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Education Law §3813 notice of claim involving a ?a matter of personal interest? distinguished from vindicating a ?matter of public interest?

Education Law §3813 notice of claim involving a ?a matter of personal interest? distinguished from vindicating a ?matter of public interest?
Matter of Harris v Board of Educ., Union Springs Cent. School Dist., 2010 NY Slip Op 03996, Decided on May 7, 2010, Appellate Division, Fourth Department

The Appellate Division confirm the determination of the Union Springs Central School District?s Board of Education?s dismissing Thomas Harris from his position of a school bus driver noting that the Board ?was not bound by the Hearing Officer's recommendation in determining the appropriate penalty.? It then said that it concluded that the ?penalty of dismissal is not ?so disproportionate to the offense as to be shocking to one's sense of fairness,?" citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

However a preliminary consideration was required to be made by the court: did the notice of claim served on Harris' behalf by the union representing employees of School District complied with "notice of claim" requirement set out in Education Law §3813?

The Appellate Division concluded that the union?s ?notice of claim? properly complied with Education Law §3813 as "The prime, if not the sole, objective of the notice requirements of such a statute is to assure the [respondents] an adequate opportunity to investigate . . . and to explore the merits of the claim while information is still readily available."

In this instance, said the court, the notice of claim served by the union satisfied that objective.

Filing a timely notice of claim is often critical to going forward with a lawsuit involving a school district or a BOCES.

Essentially such notice is required when the individual is seeking to vindicate what the court will deem a private right as was the case in Stevens v McGraw CSD, 261 A.D.2d 698.

Here McGraw Central School District bus driver Arthur Stevens' failure to comply with Education Law §3813 proved fatal to his challenging his dismissal from his position following a disciplinary hearing pursuant to Section 75 of the Civil Service Law.

The hearing officer found Stevens guilty of seven of the charges preferred against him and recommended that he be discharged. The district accepted the hearing officer's findings and recommendation. When Stevens challenged his termination, the district raised the technical defense that Stevens had failed to comply with notice of claim requirements set out in §3813 of the Education Law.

The Appellate Division affirmed a lower court's ruling dismissing Stevens' Article 78 action, holding that "the mere fact that [Stevens] seeks only reinstatement to his former position, as opposed to reinstatement coupled with back pay and benefits, does not exempt him from the requirements of Education Law Section 3813, as a review of the petition makes clear that [Stevens] nonetheless primarily is seeking to enforce a private right" [emphasis supplied].

In contrast, in Sephton v Board of Education of the City of New York, 99 AD2d 509, the Appellate Division ruled that "the 'tenure rights' of teachers are ... considered a matter in the public interest and therefore §3813 is not applicable to cases seeking to enforce such rights" [emphasis supplied].

Presumably this means that although a teacher who is terminated for cause pursuant to §3020-a of the Education Law is not required to file a notice of claim as a condition precedent to his or her filing an appeal pursuant to Article 75 of the CPLR, [see Education Law §3020-a.5], a person in the classified service who is terminated after a §75 hearing must satisfy the requirements of §3813 in order to file an Article 78 action challenging the disciplinary action as otherwise permitted pursuant to §76 of the Civil Service Law.

It would seem that the fact that the Civil Service Law providing an aggrieved employee with a statutory right to appeal an adverse disciplinary action to a civil service commission or to the courts via a CPLR Article 78 petition should have the same standing with respect to such an employee's "tenure rights" as is provided pursuant to §3020-a.5 insofar as the "tenure rights" of educators are concerned, i.e. such rights should also be considered ?matter of public interest.?

The lessons here: lawsuits based on what the courts determine involve efforts to vindicate a "private interest" such as the denial of a benefit resulting from an alleged violation of a provision set out in a Taylor Law agreement or a penalty imposed following a disciplinary action must comply with the procedural requirements set out in §3813 unless there is clear evidence that the school district has waived its right to such notice as exemplified by the Lakeland decision.*

Accordingly, although exceptions to the "notice of claim" requirement exist, it would seem prudent for an aggrieved party to file a timely notice of claim with a school district consistent with the provisions set out in §3813(1) rather than try to persuade a court that it was not necessary to do so in a particular situation at some later date.

* In CSEA v Lakeland Central School District, 230 A.D.2d 703, the Appellate Division rejected the School District's theory that CSEA's action for damages "for breach of a collective bargaining agreement" should be dismissed because CSEA had not complied with the "notice of claim" requirements set out in §3813 of the Education Law. The Court said that "the collective bargaining agreement entered into by the parties contained detailed grievance procedures and this constituted a waiving compliance with that requirement" by the School District.

The Harris decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03996.htm

Full post as published by New York Public Personnel Law on May 12, 2010 (boomark / email).