State appellate court rules that city education department is not required to provide legal representation or pay legal fees for school employees in suits for use of corporal punishment
In re Sagal-Cotler v. Board of Educ. of City Sch. Dist. of City of New York, No. 7133 104406/10 (N.Y. S.Ct., App. Div. June 5, 2012) (slip op.)
In re Thomas v. Board of Educ. of City Sch. Dist. of City of New York, No. 7129 100711/11 (N.Y. S.Ct., App. Div. June 5, 2012) (slip op.)
Abstract: In deciding both cases on the same day, the same five-judge panel of the New York Supreme Court, Appellate Division, First Department, resulting in the same 3-2 split, ruled that the New York City Department of Education (NYCDE) was not required to provide an employee with legal representation and indemnification for legal fees in a suit against that employee for imposing corporal punishment on a student. The panel’s majority determined that Education Law §§ 2560 and 3028 were not irreconcilable and could be applied harmoniously, resulting in the denial of representation and indemnification.
Facts/Issues: These two virtually identical cases with similar causes of action involve the application of the same two statutory provisions, Education Law §§ 2560 and 3028.
In re Sagal-Cotler: In December 2008, Sagal-Cotler, a paraprofessional at a school serving special needs students, was escorting a class of students to the school cafeteria. During the elevator ride, one of Sagal-Cotler’s students began singing loudly. When exiting, Sagal-Cotler asked the singing student to exit and accompany her to the cafeteria, but the student ignored her. After two more failed attempts by Sagal-Cotler, she “yelled his name and slapped him across the face.” Thereafter, an allegation of corporal punishment was lodged against Sagal-Cotler.
In January 2009, Sagal-Cotler met with her administrator and union representative about the incident. Subsequently, Sagal-Cotler was suspended for 10 days without pay, reassigned, and directed to attend “therapeutic crisis intervention” classes and an anger management workshop.
In July 2009, the student and his mother filed suit against Sagal-Cotler and the NYCDE, seeking compensatory and punitive damages for causing the student “great pain, shock and mental anguish.” In October 2009, Sagal-Cotler requested that NYCDE provide her with legal representation for the suit, but her request was denied pursuant to NYCDE’s interpretation of Education Law §§ 2560 and 3028. Sagal-Cotler then hired private counsel. In April 2010, Sagal-Cotler petitioned the trial court, seeking an order for NYCDE to provide legal representation and reimbursement for legal fees. The trial court granted Sagal-Cotler’s petition on the grounds that NYCDE has misapplied Education Law §§ 2560 and 3028. NYCDE appealed that ruling.
In re Thomas: In mid-May 2009, a kindergarten student at Thomas’ school told a counselor that, a few days before, Thomas, a paraprofessional and 23-year NYCDE employee, had been teaching to a group composed of the student and a few others. The student reported that “when he was doing the wrong thing,” Thomas “hit” the student on the head with the back of her hand. The student’s mother filed a formal complaint that Thomas had used corporal punishment. Thomas denied the charge, and continues to deny it, but an investigation by NYCDE found that the charge was “substantiated” by a witness who confirmed the student’s account. In late-May 2009, Thomas’ principal informed her by letter that she was being reassigned to another part of the school, and that a copy of the letter would be placed in her personnel file. No other sanctions were imposed.
In April 2010, the student and his mother filed suit against Thomas and NYCDE alleging pain and suffering and mental anguish, seeking compensatory and punitive damages. In May 2010, Thomas requested that NYCDE provide her with legal representation in connection with the suit, but her request was denied in October 2010 pursuant to a provision of municipal law. In January 2011, Thomas petitioned the trial court, seeking an order for NYCDE to provide legal representation and reimbursement for legal fees pursuant to Education Law § 3028. In August 2011, the trial court denied Thomas’ petition and dismissed the proceeding on the ground that the Corporation Counsel had a rational basis to find that Thomas had struck the student in violation of regulations prohibiting corporal punishment. Thomas appealed that ruling.
Ruling/Rationale: In a 3-2 ruling, the majority of the Appellate Division panel affirmed the trial court’s decision in Thomas in favor of NYCDE, but reversed the trial court’s decision in Sagal-Cotler against NYCDE, on the basis that Education Law § 2560 (which incorporates a provision of municipal law) and Education Law § 3028 are not irreconcilable, but rather can and should be read together and “applied harmoniously and consistently.”
Using very similar, and in some cases identical, language, the majority in both opinions identified that 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 employee “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) 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” General Municipal Law § 50-k.
General Municipal Law § 50-k(2) and (3) provide a uniform standard for such legal representation and indemnification for actions or omissions that the Corporation Counsel determines “occurred while the employee was acting within the scope of his [or her] 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.”
The majority concluded that ”[w]hen 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.”
The majority found that because Sagal-Cotler and Thomas were employed by NYCDE, they are subject to Education Law § 2560(1). Therefore, to obtain legal representation under the statute, each employee must meet three requirements: (1) each was acting within the scope of their employment; (2) in the discharge of their duties; and (3) not be in violation any rule or regulation of the DOE at the time of the incident.
In Thomas, she 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, despite Thomas’ continued denial of such act, violated an NYCDE regulation and a statewide rule prohibiting corporal punishment, 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 contended, to get the child’s attention.
In Sagal-Cotler, her admitted act of hitting a student in the face when he refused to accompany her to the school cafeteria violated the same NYCDE regulation and statewide rule, and similar to Thomas, was not undertaken in the discharge of her duties, whether as an act of discipline or otherwise.
In both cases, the majority found that both employees’ actions were intentional, and the decision of the Corporation Counsel to deny them representation and indemnification was not erroneous.
In the dissenting opinion filed by the same judge in both cases, Judge Freedman took issue with the majority’s attempt to harmonize the two statutes on the ground that they are mutually exclusive. The dissent also took issue with the majority’s finding that the corporal punishment imposed on the students did not occur in the discharge of their duties.
In Thomas, the dissent stated that “[a]t worst, she became annoyed at his inattentiveness and used her hand to direct him. Thus, what occurred was a natural and foreseeable incident of her work.”
In Sagal-Cotler, the dissent stated that Sagal-Cotler’s “acknowledgement that she slapped the unruly and recalcitrant student in an effort to get him to the cafeteria where he was supposed to be … obviously constituted disciplinary action taken with the scope of her employment,” arising “from a momentary display of anger arising from [Sagal-Cotler's] discharge of her duty.”
In re Sagal-Cotler v. Board of Educ. of City Sch. Dist. of City of New York, No. 7133 104406/10 (N.Y. S. Ct., App. Div. June 5, 2012) (slip op.)
In re Thomas v. Board of Educ. of City Sch. Dist. of City of New York, No. 7129 100711/11 (N.Y. S. Ct., App. Div. June 5, 2012) (slip op.)
[Editor's Note: On June 7, 2012, JDJournal.com reported on the two cases, stating that Stuart Lichten, identified as counsel for both employees (though the Sagal-Cotler decision lists another attorney), said, “The law plainly says that if there’s an action arising out of discipline taken by the teacher against a student, the teacher gets legal representation. Now, in New York City, that law has been effectively repealed.” He also that there would be appeals of the appellate division's decisions. On the other hand, Paul Rephen, the lawyer representing NYCDE, said, “These decisions affirm that taxpayer dollars should not fund the legal defense of teachers who use prohibited corporal punishment on students.”]