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In Re Josephine Thomas, Petitioner-Appellant v. New York City Department of Education

June 5, 2012

IN RE JOSEPHINE THOMAS, PETITIONER-APPELLANT,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, ET AL., RESPONDENTS-RESPONDENTS.



Matter of Matter of Thomas v New York City Dept. of Educ.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 5, 2012

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 NY2d 199, 204 [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 NY, 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 NY2d 205, 208 [1976]). The plain meaning of the statutory language is " the clearest indicator of legislative intent'" (Matter of Smith v Donovan, 61 AD3d 505, 508 [2009], quoting Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998], lv denied 13 NY3d 712 [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., __ AD3d __ (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 NY Slip Op 52338[U], *8 [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 (see 8 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 AD2d 128 [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 AD2d 128 [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 ...


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