NYC Help on the Way to Teachers in Abuse Suits

     ALBANY, N.Y. (CN) – New York City owes a defense to school employees accused of hitting students, despite its prohibition of corporal punishment, New York’s highest court ruled.
     The Court of Appeals had addressed the issue in consolidating the appeals brought by two women who face civil claims over documented incidents that occurred while they worked as paraprofessionals in New York City schools.
     One woman, Deborah Sagal-Cotler, was escorting a class to the cafeteria at a Brooklyn public school serving special needs students in late 2008 when she slapped a student in the face for repeatedly ignoring her instructions.
     After admitting to the incident and writing a letter of apology, Sagal-Cotler was suspended without pay for 10 days, reassigned, and directed to attend professional training and an anger-management workshop, according to court documents.
     Josephine Thomas is the 23-year teacher at the heart of the second suit, which involves her conduct at Public School 94 in the Bronx where she had worked since 2001. Thomas was reassigned after a complaint emerged that she hit a kindergartener on the head in 2009 for not doing his math work properly.
     Though Thomas denied the allegation, the school principal substantiated the charge after talking to a witness.
     In both cases, the mothers of the students sued the teachers, the city and the school district. Both Sagal-Cotler and Thomas asked the city to provide legal representation but were rebuffed.
     The New York County Supreme Court granted Sagal-Cotler’s Article 78 petition against the city and the school district, but it dismissed the petition Thomas filed.
     At the Appellate Division, the judges of the First Judicial Department in Manhattan split 3-2 on the cases, deciding that the city and the school district were not obligated to provide legal representation or reimbursement of legal fees to the women.
     In both cases, the majority read state education law as requiring that school districts must defend employees sued for disciplinary action taken against a student – unless the employee “violated any rule or regulation of the agency.”
     The judges noted that two sections of education law actually were applicable: Section 3028, passed in 1960, and Section 2560, as amended in 1979. The latter section contains the exception for prohibited activities.
     “Therefore, in order to obtain legal representation and indemnification pursuant to the statute, petitioner must meet three requirements: (1) she must be acting in the scope of her employment, (2) in the discharge of her duties, and (3) not be in violation of any rule or regulation of the DOE,” they wrote, abbreviating Department of Education.
     Although each woman was acting within the scope of her employment, the courts found that they had violated city and state rules against corporal punishment by hitting or slapping a student, which means that they were not discharging their duties appropriately.
     As a result, denying the women a defense was not arbitrary or capricious, the majority said.
     In their dissent, Judges Karla Moskowitz and Helen Freedman said they did not read Section 2560 as offering an exception to the legal representation provided for in Section 3028, which they saw as applying more specifically to the women’s cases anyway.
     In each case, “petitioner’s contact with the student obviously constituted disciplinary action taken within the scope of her employment,” Freedman wrote. “The majority’s assertion that petitioner was not acting in the discharge of her duties belies common sense.”
     The Court of Appeals concluded Thursday, however, that Section 3028 “controls these cases.”
     “The decisive issue is whether the actions that resulted in the students’ lawsuits against petitioners were taken ‘while in the discharge of [their] duties within the scope of [their] employment,’ as Section 3028 requires,” Judge Robert Smith wrote for the six-judge panel.
     The city interprets “discharge of … duties” narrowly: “that an employee who is violating her employer’s regulations cannot be acting in the ‘discharge of [her] duties,'” according to the ruling.
     Precedent has long made phrases like “scope of employment” and “discharge of duties” interchangeable, the judge said.
     “Thus we do not read the statutory words ‘discharge of … duties’ to restrict the right to a defense to cases where an employee acted in the proper and lawful discharge of his or her duties,” Smith wrote. “Rather, we conclude that the authors of Education Law Section 3028 intended to provide a defense even where an employee’s use of corporal punishment violated regulations.
     “Section 3028 requires the city to provide an attorney not just in civil, but also in criminal cases – suggesting that the Legislature wanted even employees who engaged in highly questionable conduct to be defended at public expense.”
     The court reversed the Appellate Division decisions, annulled the Article 78 determinations and remitted the cases to Supreme Court for further action.
     Stuart Lichten of Lichten & Bright in Manhattan represented Thomas. Ariana Gambella of the New York State United Teachers argued for Sagal-Cotler. New York City’s executive assistant corporation counsel, Paul Rephen, represented the school district.

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