Thomas v. N.Y.C. Dep't of Educ.

• Decision Date: 05 June 2012
• Citation: 2012 N.Y. Slip Op. 04280,280 Ed. Law Rep. 969,946 N.Y.S.2d 114,96 A.D.3d 401
• Parties: In re Josephine THOMAS, Petitioner–Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, et al., Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 401

946 N.Y.S.2d 114

280 Ed. Law Rep. 969

2012 N.Y. Slip Op. 04280

In re Josephine THOMAS, Petitioner–Appellant,

v.NEW YORK CITY DEPARTMENT OF EDUCATION, et al., Respondents–Respondents.

Supreme Court, Appellate Division, First Department, New York.

June 5, 2012.

Lichten & Bright, P.C., New York (Stuart Lichten of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Paul T. Rephen of counsel), for respondents.

ANDRIAS, J.P., SWEENY, MOSKOWITZ, FREEDMAN, MANZANET–DANIELS, JJ.

Order and judgment (one paper), Supreme Court, New York County (Judith J. Gische, J.), entered August 31, 2011, which denied the petition seeking a judgment directing respondents to provide legal representation and reimbursement for legal fees and expenses incurred in defense of a civil action arising out petitioner-paraprofessional's discipline of a student, and dismissed the proceeding brought pursuant to CPLR article 78, affirmed, without costs.

The court correctly determined that Education Law § 2560, which incorporates by reference General Municipal Law § 50–k, and Education Law § 3028, do not conflict and should be read together and “applied harmoniously and consistently” ( Alweis v. Evans, 69 N.Y.2d 199, 204, 513 N.Y.S.2d 95, 505 N.E.2d 605 [1987] ). “It is the duty of the courts to so construe two statutes that they will be in harmony, if that can be done without violating the established canons of statutory interpretation” (McKinney's Cons. Laws of N.Y., Book 1, Statutes § 398).

It is a fundamental rule of statutory construction that a court, “in interpreting a statute, should attempt to effectuate the intent of the Legislature” ( Patrolmen's Benevolent Assn. of City of N.Y. v. City of New York, 41 N.Y.2d 205, 208, 391 N.Y.S.2d 544, 359 N.E.2d 1338 [1976] ). The plain meaning of the statutory language is “ ‘the clearest indicator of legislative intent’ ” (Matter of Smith v. Donovan, 61 A.D.3d 505, 508, 878 N.Y.S.2d 675 [2009], quoting Majewski v. Broadalbin–Perth Cent. School Dist., 91 N.Y.2d 577, 583, 673 N.Y.S.2d 966, 696 N.E.2d 978 [1998],lv. denied13 N.Y.3d 712, 2009 WL 4016835 [2009] ).

Both Education Law §§ 3028 and 2560 provide for the legal representation and indemnification of Board of Education employees. However, they each set forth different circumstances under which such representation and indemnification are to be provided.

Education Law § 3028 provides entitlement to representation and indemnification for any civil or criminal suit filed against a board of education “arising out of disciplinary action” that the employee has taken against a student “while in the discharge of his [or her] duties within the scope of his [or her] employment.”

Education Law § 2560(1), as amended in 1979, provides for representation and indemnification for board of education employees in a city having a population of one million or more “pursuant to the provisions of, and subject to the conditions, procedures and limitations contained in section fifty-k of the general municipal law.”

General Municipal Law § 50–k(2) and (3) provide a uniform standard for legal representation and indemnification of employees of the City of New York. Such representation and indemnification shall be provided for acts or omissions that the Corporation Counsel determines “occurred while the employee was acting within the scope of his [or her] public employment and in the discharge of his [or her] duties and was not in violation of any rule or regulation of his [or her] agency at the time the alleged act or omission occurred.”

When read together, it is clear that, pursuant to Education Law § 3028, a board of education must provide legal representation and pay attorney's fees and expenses incurred in the defense of an employee in any action arising out of a disciplinary action taken against a student by an employee while acting in the scope of his or her employment and in the discharge of his or her duties, unless, pursuant to Education Law § 2560(1), the employee is a member of a board of education in a city having a population of one million or more, and, pursuant to General Municipal Law § 50–k, he or she violated any rule or regulation of the agency ( see Sagal–Cotler v. Bd. of Educ. of City School Dist. of City of N.Y., ––– A.D.3d ––––, 946 N.Y.S.2d 121 (2012), decided simultaneously herewith; Matter of Zampieron v. Board of Educ. of the City School Dist. of the City of N.Y., 30 Misc.3d 1210[A], 2010 N.Y. Slip Op. 52338 [U], *8, 2010 WL 5576190 [2010] ).

Here, because petitioner was employed as a paraprofessional by the New York City Department of Education (DOE), Education Law § 2560(1) applies. Therefore, in order to obtain legal representation pursuant to the statute, petitioner must meet three requirements: (1) she must be acting within the scope of her employment; (2) in the discharge of her duties; and (3) not be in violation any rule or regulation of the DOE at the time of the incident. As Supreme Court correctly found, petitioner was acting within the scope of her employment since the incident occurred in a classroom. However, the act of hitting a child on the head during a lesson violated DOE Chancellor's Regulation A–420 as well as a statewide rule prohibiting corporal punishment ( see8 NYCRR 19.5[a][2] ), and therefore was not undertaken in the discharge or furtherance of her duties as a school employee, whether as an act of discipline or, as the dissent contends, to get the child's attention ( cf. Blood v. Board of Educ. of City of N.Y., 121 A.D.2d 128, 509 N.Y.S.2d 530 [1986] ). Although petitioner denied at the time, and continues to deny ever striking the child, the record shows that the allegations against her were substantiated and that she was transferred to another building as a result of the incident.

In an attempt to fit this case within the parameters of our decision in Blood v. Board of Educ. of City of N.Y., 121 A.D.2d 128, 509 N.Y.S.2d 530 [1986] supra, the dissent creates a scenario wherein petitioner “[a]t worst, ... became annoyed at [the child's] inattentiveness and used her hand to direct him.” According to the dissent, the incident was nothing more than a “natural and foreseeable incident of her work” and was “at most, an impulsive act designed to get the attention of an unfocused student and consistent with the teaching task she was assigned to perform,” thus bringing her actions within the scope of her duties. Such a scenario, however, is not supported by the record and ignores the fact that petitioner's actions violated two regulations prohibiting corporal punishment.

As noted, petitioner maintains that she never struck the child. The only reference to the child's inattentiveness, aside from petitioner's brief, is a statement from a witness, another kindergarten student, contained in a counselor's report that the child “was not listening and Ms. Thomas hit him in the forehead with the back of her hand and [the child] said that it hurt.” Petitioner, in her response to the reassignment, stated that the child “was very frustrated with the work.” There is no indication that the student was not paying attention or that his behavior was a cause for discipline. This is a far different set of facts from Blood, where a teacher, who had become angry at a student, grabbed and carelessly swung the child's book bag and accidentally struck another student in the eye. Notably, in Blood, the teacher's conduct in striking the other student was clearly accidental, and no disciplinary action was taken as a result of the incident (121 A.D.2d at 131, 133, 509 N.Y.S.2d 530.) Here, the striking was intentional and petitioner was disciplined.

While it is true, as the dissent points out, that some nisi prius courts have found that Education Law § 3028 is the applicable statute despite the population requirements of Education Law § 2560(1), those cases are easily distinguishable from the present case. For example, Morel v. City of New York, 2010 N.Y. Slip Op. 32079[U], 2010 WL 3207006 [Sup. Ct., N.Y. County 2010], involved a teacher, Ramon Morel, who allegedly punched and shoved a 14–year–old female student while ushering her and her friends out of a gym after a basketball game. After a DOE investigation, the allegations were substantiated. A lawsuit was commenced by the student against Morel and he requested representation. The Corporation Counsel denied the request on the sole ground that Morel's action were not within the ambit of General Municipal Law § 50–k(2). The IAS court found that Education Law § 3028 was controlling (2010 N.Y. Slip Op. 32079[U], *4–5, 2010 WL 3207006). The basis of the court's determination was that “the DOE, in over a year since the incident, had not brought disciplinary charges against Morel,” and “there is no evidence that Corporation Counsel had a factual basis to determine that Morel was acting outside the scope of his employment when he pushed [the student] out of the gym.” ( id. at *7, 2010 WL 3207006.)

In Matter of Inglis v. Dundee Cent. School Dist. Bd. of Educ., 180 Misc.2d 156, 687 N.Y.S.2d 866 [Sup. Ct., Yates County 1999], the teacher, after directing a student to stop playing a piano in the classroom, slapped the student. When criminal charges of harassment were filed against the teacher, she requested representation, which the school district denied on the basis that she was not acting within the scope of her employment when she slapped the student. The teacher brought an article 78 proceeding to have the district reimburse her for her legal expenses in defending the harassment charge, which ultimately was adjourned in contemplation of dismissal (180 Misc.2d at 157, 687 N.Y.S.2d 866). In granting the petition, the court found that the teacher was acting within the scope of her employment and that even accepting the district's position that slapping a student was a violation of the statewide prohibition against corporal punishment, “[s]uch an act is one...