In two virtually identical cases with similar causes of action there was a 3-2 majority and disagreement over the application of two apparently contradicting statutes that govern indemnification of school employees.
Both Josephine Thomas and Deborah Sagal-Cotler had been sued by parents after they were disciplined for hitting a child during class. Both of them were teacher’s aides. The asked the city for legal representation and for covering their legal costs. New York declined their requests.
The Education Law 3028 of New York provides for representation and indemnification for any lawsuit against a school employee, if such a lawsuit is one “arising out of disciplinary action” against a student performed during the course of work duties.
However, the Education Law 2560 provides that school employees in New York City be offered representation under the provisions and guidelines of another law, the General Municipal Law 50-k.
In Thomas and Sagal-Cotler’s case the majority ruled that the rules against corporal punishment in schools under the Board of Education’s guidelines had been violated and therefore the women were disqualified from receiving legal coverage.
The majority opined, “Education Law 2560, which incorporates by reference General Municipal Law 50-k, and Education Law 3028 are not irreconcilable, but rather can and should be read together.”
However, the lawyer for the teacher’s aides accused of physically beating a child said defiantly, “This is not going to be the last word.” Attorney Stuart Lichten 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 Now, in New York City, that law has been effectively repealed.”
Paul Rephen, the lawyer representing the city of New York said, “These decisions affirm that taxpayer dollars should not fund the legal defense of teachers who use prohibited corporal punishment on students.”
The cases are In re Josephine Thomas v. New York City Department of Education et al, Appellate Division, First Department, No. 7129, and In re Deborah Sagal-Cotler v. Board of Education of City School District of The City of New York et al, Appellate Division, First Department, No. 7133.