Can the DOE withhold legal representation in a civil suit brought against a teacher while a disciplinary proceeding is pending?

Yes. While fortunately not a frequent occurrence, our students and others do sue teachers and other school staff members for injuries allegedly caused by school staff during the course of their employment. General Municipal Law Section 50-k and Education Law 3028 provide that city employees have the right to have the Corporation Counsel represent them and the city pick up any resulting judgment if the employee was acting within the “scope of his employment.”

The critical issue is what was in this “scope” as an employee, for example committing a criminal assault on student would not be covered under this law.

Kevin Martin is a tenured teacher and was assigned to Aspire Preparatory School, MS 322X. While teaching Martin tried to stop a student from disrupting the class. After each request by Martin to the student to stop disrupting the class the student verbally responded with profanity. Martin told the student to go the dean.

According to Martin’s petition, “As a disciplinary measure and the course and scope of Martin’s employment, Martin then removed the aforementioned student chair from beneath the feat of student S[…], whereupon Martin lost control of the chair which fell to the floor at student S[…]’s feet.”

The student and his mother started a civil suit against Martin and Martin requested legal representation which was denied due, in part to an OSI report which found Martin had thrown the chair.

Justice Alice Schlesinger of New York Supreme Court had no problem finding that Martin’s action was within the scope of his employment as disciplinary actions against students are clearly envisioned in the statute. The Court nonetheless after determining that the timeline was suspect (the incident occurred in 2008, the civil suit filed in 2009 and the OSI investigation and charges against Martin were done in 2010) found that there was nothing arbitrary or capricious in the denial of legal representation during the course of the disciplinary proceedings. The Court advised that Martin could commence his own civil action for attorney fees and resulting judgment in the future, if the facts warrant.

In the Matter of KEVIN MARTIN, Petitioner, -against- BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, JOEL J. KLEIN, as Chancellor of the City School District of the City of New York, and the CITY OF NEW York, Respondents, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 30983U; 2011 N.Y. Misc. LEXIS 1795, April 12, 2011

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