Selected reports issued by the Office of the State Comptroller during the week ending May 7, 2016

Selected reports issued by the Office of the State Comptroller during the week ending May 7, 2016

Click on text highlighted in color to access the entire report

State Budget increases education aid and enacts paid family leave
The recently enacted fiscal year 2016-17 state budget includes a $1.4 billion increase in school aid, as well as increases to the minimum wage and phased-in personal income tax cuts for most taxpayers, but adds to state debt and shifts significant spending off-budget and to authorities, according to a report released by State Comptroller Thomas P. DiNapoli. The report also notes the budget sacrificed public transparency both in process and content.

Remaining defendants in a multi-million dollar bid-rigging of Monroe County public contracts sentenced
State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the sentencing of the remaining three defendants in an elaborate bid-rigging conspiracy that illegally steered multi-million dollar public works contracts for Monroe County to favored and connected companies, resulting in the restraint of competition. The defendants profited from this scheme and defrauded the taxpayers of Monroe County. The report is posted on the Internet at: http://osc.state.ny.us/press/releases/may16/050616a.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20160508&utm_campaign=fiscal+oversight

State audits released:

City University of New York - Controls Over Bank Accounts - Lehman College

Empire State Development Corp. - Minority and Women-Owned Business Enterprises Program; and

Ogdensburg Bridge and Port Authority - Capital Planning and Maintenance

State law governing voter registration does not require a “wet signature” and a signature can be affixed electronically if the application form is filed “on-line”

State law governing voter registration does not require a “wet signature” and a

signature can be affixed electronically if the application form is filed “on-line”

Informal Opinions of the Attorney General, Informal Opinion 2016-1

Dennis M. Brown, Suffolk County’s County Attorney, explaining that Suffolk County was considering a voter registration system that would allow an individual to register to vote by completing an application online, wrote to the Attorney General to inquire if state law governing voter registration requires that the signature of a registrant be hand written, i.e., written with ink, or a “wet signature.”

Kathryn Sheingold, Assistant Solicitor General in Charge of Opinions, responding to Mr. Brown, opined that “state law governing voter registration does not require a wet signature,” indicating that a signature can be affixed electronically as the “election law does not specifically require a signature written with ink on a voter registration application.” However, cautioned Ms. Sheingold, “the technology … must capture a handwritten signature that can be incorporated into the registration records and compared with the signature that the applicant will write at the polling location at the time of voting.”*

Another element to consider relating to a registration application completed online is that the application, once so completed, would have to either (a) be printed and mailed to the local board of elections by the applicant or a third party assisting the applicant or (b) be completed by appearing at the local board of elections. Otherwise, said Ms. Sheingold, “the County would be creating a new system of registration rather than using the existing system outlined by the Legislature.”

Ms. Sheingold’s response to the Suffolk County Attorney is posted on the Internet at:

http://www.ag.ny.gov/sites/default/files/opinion/2016-1_pw_0.pdf

Although the Attorney General issues Formal Opinions only to officers and departments of State government, Informal Opinions are prepared  by the Attorney General’s Office of the Solicitor General in Charge of Opinions in response to inquiries from officers of a political subdivision of the State.

* Presumably the signature written on the envelope enclosing an absentee ballot submitted by the voter would be compared with electronic signature incorporated into the voter registration records.

Supreme Court’s imposing a “lesser disciplinary penalty” upon remand found to have usurped the authority of the arbitrator under the circumstances

Supreme Court’s imposing a “lesser disciplinary penalty” upon remand found to have usurped the authority of the arbitrator under the circumstances

Fernandez v New York City Tr. Auth., 2016 NY Slip Op 03435, Appellate Division, First Department

In an earlier appeal involving the same parties, the Appellate Division vacated the arbitration award that sustained the New York City Transit Authority's (NYCTA) decision to terminate Carlos Fernandez’s employment.* The Appellate Division then remanded the matter to the Arbitrator for imposition of a lesser penalty.

On remand, however, Supreme Court granted Fernandez’s petition to the extent of restoring him, “upon his successful completion of a medical examination, to his position as a bus operator, with full benefits and accrued vacation running from the date of his reinstatement.”

NYCTA appealed and the Appellate Division “unanimously reversed” the Supreme Court’s action on the law and the facts. The Appellate Division ruled that Supreme Court’s imposing “a lesser penalty” usurped the Arbitrator's authority and the lower court should have remitting the matter to the Arbitrator for a rehearing and new determination as to the appropriate lesser penalty.

The Appellate Division explained that the matter should have been remitted to the original Arbitrator as “there has been no showing that the original Arbitrator is biased or otherwise incapable of carrying out his duties.”

* NYPPL’s summary of the earlier Appellate Division ruling is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2014/08/transcribing-hearing-in-disciplinary.html [In pertinent part, it reports that the penalty imposed by the arbitrator on the employee, termination, was vacated by the Appellate Division and the matter remanded to the arbitrator “for the imposition of a lesser penalty.” In that action the Appellate Division said that the termination of the employee, a NYCTA bus driver for 15 years, with an unblemished record of employment and who had consistently received positive performance evaluations, and had never been disciplined as the sanction “for a single, alleged transgression is grossly excessive and shocks our sense of fairness,” citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and  Mamaroneck, Westchester County, 34 NY2d 222.]

The 2016 decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03435.htm

 _____________________ 

 A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

 _____________________ 

The U.S. Internal Revenue Service has scheduled a webcast concerning Accumulated Sick and Vacation Pay Deferred to 403(b) or 457(b) Plans

The U.S. Internal Revenue Service has scheduled a webcast concerning accumulated sick and vacation pay deferred to 403(b) or 457(b) Plans

Revenue Agents from the Office of Federal, State and Local Governments Lori Stieber and Patricia A. Regetz will present a webcast addressing the treatment of accumulated sick and vacation pay deferred to 403(b) or 457(b) Plans for tax purposes on June 2, 2016 at 2 p.m. Eastern Time; 1 p.m. Central Time; 12 p.m. Mountain Time, and 11 a.m. Pacific Time.

Register for this webcase at: https://www.webcaster4.com/Webcast/Page/925/15027 . 

Those registered will use the same link to attend the event.

Among the topics to be covered:

1. When is accumulated sick and vacation leave pay subject to Federal Employment Taxes

2. When can taxes be deferred and for how long?

3. What is an elective contribution?

Imposing multiple disciplinary penalties on an employee found guilty of misconduct

Imposing multiple disciplinary penalties on an employee found guilty of misconduct

Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO v New York State Unified Ct. Sys., 2016 NY Slip Op 03326, Appellate Division, Fourth Department

A hearing officer, after an administrative hearing conducted pursuant to provisions set out in a  collective bargaining agreement, found Robert Stanek guilty of certain disciplinary charges of misconduct. As a result Stanek was suspended for five days without pay. In addition, the appointing authority placed Stanek on probation for a period of six months and issued a letter of reprimand.

Stanek appealed the appointing authority’s decision but Supreme Court transferred the matter to the Appellate Division “pursuant to CPLR §7804(g)” on the ground that the petition raises a substantial evidence issue.

The Appellate Division said that the Supreme Court’s action was incorrect as the appointing authority’s determination “was not made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law.” Rather, said the court, “the determination was the result of a hearing conducted pursuant to the terms of the collective bargaining agreement."*

Notwithstanding this procedural issue, the Appellate Division retained the matter and consider Stanek’s petition “in the interest of judicial economy.”

The court then explained that although Stanek’s petition raised a substantial evidence issue, its review of this administrative determination pursuant to CPLR §7803(3) is limited to whether the determination was "affected by an error of law or was arbitrary and capricious or an abuse of discretion." If a court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the appointing authority.

Further, the Appellate Division said that “an administrative determination regarding discipline will be afforded heightened deference where a law enforcement agency such as [the court security arm of the Unified Court System] is concerned."**

Noting that Stanek did not contend that the determination is affected by an error of law, the Appellate Division concluded that, viewing the administrative record as a whole, the  determination of the appointing authority was not arbitrary and capricious, or an abuse of discretion. Further, opined the court, “There is evidence in the record that supports the determination, and that evidence was credited by the Hearing Officer and adopted by [appointing authority] in its determination.”

The court also rejected Stenak’s contention that the penalties imposed constitute an abuse of discretion, commenting that “It is well settled that ‘a penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law,” citing Pell v Board of Educ. of Union Free Sch. Dist. No. 1, 34 NY2d 222. The court then concluded that the penalties imposed on Stanek, a court security officer, did not shock its sense of fairness considering the higher standard of fitness and character that pertains to law enforcement personnel, coupled with Stanek 's refusal to accept any responsibility for his conduct.

* A collective bargaining agreement may authorize the imposition of multiple disciplinary penalties. In contrast, in disciplinary actions taken pursuant to §75 of the Civil Service Law the courts have held that "the imposition of multiple penalties was improper" as Civil Service Law §75.3 provides for a choice of penalties, thus prohibiting the imposition of more than one of the discrete penalties set out in the statute [see Matteson v City of Oswego, 186 A.D.2d 1017]. However, imposing multiple penalties is possible where there are multiple offenses involved [See Wilson v Sartori, 70 AD2d 959].

** Stanek served as a court security officer.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03326.htm

 _____________________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

 _____________________

Federal and State laws, rules and regulations control affecting public sector officers and employees engage in partisan political activities

Federal and State laws, rules and regulations affecting public sector officers and employees engage in partisan political activities

Sources: Internal Revenue Service publication, Hatch Act, New York State’s Ethics Commission, case law

Updated information published by the Federal, State and Local Government office of the Federal Internal Revenue Service explaining the reporting and withholding requirements for election workers is posted on the Internet at: https://www.irs.gov/Government-Entities/Federal,-State-&-Local-Governments/Election-Workers-Reporting-and-Withholding. The Internal Revenue Service also reminds public entities employing individuals to work in primary and general elections that specific statutes  apply to them, including whether they are covered by a "Section 218 Agreement".* 

In addition, the political activities of State and municipal employees whose employment is federally financed, in whole or in part, may be further restricted by the federal Hatch Act [53 Stat. 1147].

Essentially, the Hatch Act bars State and local officers and employees from being candidates for public office in a partisan election,** using official authority or influence to interfere with or affect the results of an election or nomination and directly or indirectly coerce contributions from subordinates in support of a political party or candidate.

Although a public officer or employee subject to the provisions of the Hatch Act may lawfully seek the nomination for partisan public office, he or she must resign from his or her public employment upon accepting the nomination.

Further, New York State’s Ethics Commission has issued an Advisory Opinion, Advisory Opinion No. 98-12, addressing the application of Public Officers Law §74 to State employees who work on political campaigns, including fundraising. It is posted on the Internet at http://www.jcope.ny.gov/advice/ethc/98-12.htm

Examples of case law include Pagan v Commissioner of Labor, 53 AD3d 964, in which he Appellate Division addressed the disqualification of an applicant for unemployment insurance benefits following his termination for accepting a designation to run as a candidate for the State Assembly, ruling that his employment was terminated due to misconduct.

The individual, employed by the New York City Housing Authority, had violated the Authority's  written policy prohibiting its staff members running for political office in a partisan election.

Noting that “It is well settled that "[v]iolation of an employer's reasonable policies may constitute disqualifying misconduct," the Appellate Division said that the Authority’s guidelines were established “to assure compliance with the Hatch Act (5 USC §1501 et seq.) and the City of New York’s Conflicts of Interest Board Rules.”

Another relevant decision, Matter of Blackburne, 211 AD2d 13, [motion to appeal denied, 86 N.Y.2d 705], holds that an individual otherwise entitled to a “due process disciplinary hearing” such as one provided by a Taylor Law Collective Bargaining Agreement or by a State Law such as Civil Service Law Section 75 or Section 3020-a of the Education Law, may be summarily removed from his or her position on the authority of a federal Merit Systems Protection Board determination. 

The Blackburne decision, which addressed the right of an individual to file a Taylor Law contract disciplinary grievance after the Merit Systems Protection Board directed his removal from his position for violating the Hatch Act, held that arbitration would offend public policy as it "would significantly lessen the efficacy of the Hatch Act and frustrate its purpose and scope."

* If the election workers are covered by a Section 218 Agreement with the Social Security Administration (SSA), the terms of the Agreement will determine whether the payments are subject to FICA.

** A candidate seeking election to a school board is typically deemed to be seeking office in a “non-partisan” election.

Title VII, a “precise, complex, and exhaustive” statute, does not prohibit employment practices that are not specifically prohibited by the act

Title VII, a “precise, complex, and exhaustive” statute, does not prohibit employment practices that are not specifically prohibited by the act

Cooper v N.Y. State Dep’t of Labor, U S Circuit Court of Appeals, 2d Circuit, Docket #2015-3392

Winifred Cooper¸ a former New York State Department of Labor’s Director of Equal Employment Opportunity, filed suit against the Department alleging that the Department had unlawfully retaliated against her for opposing an employment practice prohibited by Title VII of the Civil Rights Act of 1964 and New York State’s Human Rights Law, Executive Law §§290 et seq.

In December 2012, Cooper learned that the Governor’s Office of Employee Relations [GOER] had developed a plan to “alter the means by which internal Equal Employment Opportunity [EEO] complaints were to be processed by state departments and agencies." 

In the words of the Circuit Court of Appeals, Cooper, “believing that the proposed changes materially conflicted with federal regulations because they would ‘subject the EEO complaint response process to political pressure,’ increasing the likelihood that workplace discrimination would go unredressed,” initiated a series of communications with her supervisors bring her concerns to their attention. Cooper’s position proved persuasive and GOER’s plan was altered in consideration of her views. 

Subsequently Cooper was terminated from her position. Alleging that her termination was “in retaliation for having lobbied against GOER’s proposal,”  Cooper sued. The federal district court dismissed her petition and the Circuit Court affirmed the lower court’s ruling.

The Circuit Court explained that Title VII’s anti-retaliation provision prohibits employers from “discriminat[ing] against any individual … because he [or she] has opposed any practice made an unlawful employment practice” within the meaning of 42 USC §2000e.* Further, said the court, “A plaintiff seeking to demonstrate that he [or she] engaged in protected activity need not show that the behavior he [or she] opposed in fact violated Title VII; he [or she] must, however, show that he [or she] “possessed a good faith, reasonable belief,” that the employer’s conduct qualified as an “unlawful employment practice” under the statute.”

However, said the court, the conduct Cooper opposed – the amendment of internal procedures in a manner that, she believed, would permit political considerations to influence the evaluation of discrimination claims – is not a “practice made an unlawful employment practice” by Title VII nor could Cooper reasonably have believed otherwise. For these reasons Cooper was not entitled to the relief she sought.Accordingly, Circuit Court affirmed the district court's dismissal of her claims.

* As an example, the Circuit Court of Appeals noted, objecting to the employer’s failure to adhere to its own affirmative action program is not protected activity because such a failure is not an “unlawful employment practice” within the meaning of Title VII.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/87702623-71b7-4f51-8987-43915c823f47/6/doc/15-3392_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/87702623-71b7-4f51-8987-43915c823f47/6/hilite/

Challenging a decision to terminate a probationary teacher's employment

Challenging a decision to terminate a probationary teacher's employment

Decisions of the Commissioner of Education, Decision No. 16,894

William Floyd Union Free School District employed Matthew Nadolecki as a special education math teacher subject to his satisfactory completion of a three-year probationary period which was to run through September 28, 2013.  In April 2012 the superintendent advised Nadolecki that he would recommend that the board terminate Nadolecki’s services as a probationary teacher. 

Nadolecki requested a written statement of the reasons for the superintendent’s recommendation. The superintendent responded stated that his recommendation was based on Nadolecki’s failure to meet district expectations in the following areas: [1] ineffective and inadequate classroom teaching techniques; [2] ineffective implementation of lesson plans; [3] ineffective communication with parents; and [4] ineffective and sometimes inappropriate guidance for students. 

Via an April 18, 2012 email, Nadolecki initiated a Level 1 grievance pursuant to his collective bargaining agreement in which he stated that he was “grieving the efforts by the district to terminate [his] probationary appointment through dismissal.”  On April 23, 2012, the superintendent responded, repeating the reasons he had enumerated earlier and denied Nadolecki’s Level 1 grievance. Nadolecki then filed a Level 2 grievance, which grievance was denied on May 3, 2012.

At its May 22, 2012 meeting, the School Board considered the superintendent’s recommendation and voted to terminate Nadolecki’s probationary appointment, effective June 30, 2012. Nadolecki was advised of the board’s decision by letter dated May 24, 2012.

Nadolecki appealed the Board’s decision to the Commissioner of Education, contending that his termination was “in violation of the procedures set forth in the collective bargaining agreement, district policies and was otherwise retaliatory because of his alleged whistle-blowing activities.”  Nadolecki also argued that the Superintendent’s letter dated April 23, 2012 “did not comply with Education Law §3031.”

The School District maintained that it had complied with all applicable laws, including Education Law §3031, when it terminated Nadolecki and that Nadolecki’s petition failed to state a claim upon which relief may be granted.  In addition, the District said that [1] the Commissioner lacks jurisdiction over this appeal, [2] that petitioner lacks standing to bring this appeal and [3] that the appeal is untimely. In addition the District alleged that the April 23, 2012 notice complied with Education Law §3031.

Addressing a number of procedural issues, the Commissioner said that “It is well settled that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner of Education for review of the same matter.”

Nadolecki had brought earlier filed a grievance at Level 1 in which he alleged that the district’s efforts to terminate him violated the collective bargaining agreement [CBA] between the School District and Nadolecki's employee organization; asserted that certain CBA provisions regarding evaluations and observations were not adhered to; asserted that he believes he was being terminated for not “staying under the radar;” and because of his participating in a “protected union activity”.

Unsuccessful at Level 1, Nadolecki next filed a Level 2 grievance and a final determination denying his Level 2 grievance was issued on May 3, 2012.* 

Succinctly, the Commissioner said the Nadolecki “claims that [the School District]  violated the provisions of the collective bargaining agreement, which were the subject of a prior grievance, must therefore be dismissed for lack of jurisdiction, citing Bd. of Educ., Commack UFSD v Ambach, 70 NY2d 501.

Nadolecki, in effort to persuade the Commissioner to assume jurisdiction in this appeal notwithstanding his initial election to seek a remedy as provided by the CBA, argued that because he commenced his grievance prior to his actual termination by the School District, the Commissioner should retain jurisdiction over this appeal.  However, said the Commissioner, Nadolecki was attempting to raise the same collective bargaining issues in this appeal as he raised in the grievance and the Commissioner rejected Nadolecki’s argument that because he only grieved School District’s “intention” to terminate his employment, he is entitled to commence an appeal on those same issues from his actual termination.

The Commissioner also observed that, in any event, Nadolecki claims would be dismissed under the doctrine of election of remedies.  The Commissioner explained that the commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of a subsequent appeal to the Commissioner involving the same issues.

Turning to the merits of Nadolecki appeal, the Commissioner pointed out that “ A board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription.”

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the petitioner seeks relief. Nadolecki, said the Commissioner, failed to establish that he was terminated for a constitutionally impermissible reason, or in violation of a statutory proscription. 

While Nadolecki contended that he was terminated in retaliation for alleged "whistle-blowing", the Commissioner found that, on the record before her, he has not met his burden of establishing that his dismissal was in retaliation for whistle blowing. 

Although Nadolecki disagreed with the School District’s decision to terminate his services, the Commissioner ruled that he did not establish that the School District terminated his employment for a constitutionally impermissible reason or in violation of a statutory proscription, thus failing to meet his burden of proof.

Noting that Nadolecki alleged that the School District violated Education Law §3031 by failing to give him more than a general statement as to the reasons for his dismissal, the Commissioner rejected this claim, explaining that Nadolecki “has not established that [the School District] failed to comply with the requirements of Education Law §3031."

Further, said the Commissioner, “even if noncompliance were established, the remedy for a violation is not automatic reinstatement of a teacher to his former position, and equity does not require a board to provide a windfall to petitioner in the form of salary because he performed no services for the district after the termination date.”

The Commissioner then dismissed Nadolecki’s appeal in its entirety.

* Significantly, Nadolecki did not allege in this appeal that the union breached its duty of fair representation with respect to processing his grievance. 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16894

The essentials of challenging an employee disciplinary action where compulsory arbitration is involved

The essentials of challenging an employee disciplinary action where compulsory arbitration is involved

Davis v New York City Board/Department of Educ., 2016 NY Slip Op 02544, Appellate Division, First Department

Where the parties are subject to compulsory arbitration in determining an employee disciplinary matter pursuant to the terms and conditions set out in law or in a collective bargaining agreement negotiated pursuant to Article 14 of the Civil Service Law, due process requirements must be met in making the determination and the award cannot be arbitrary and capricious.
 
VHB, a tenured teacher employed by the New York Department of Education [Department], was served with disciplinary charges pursuant to Education Law §3020-a*. 

The Hearing Officer who conducted the disciplinary arbitration hearing found that the Department had provided VHB with assistance and numerous opportunities to improve her skills but concluded that VHB “was either unable or unwilling to adjust her teaching methods to comply with her supervisors' appropriate directives.” The penalty imposed on VHB: dismissal from her position.

VHB filed a petition pursuant to CPLR Article 75 seeking a court order annulling the arbitration award. The Appellate Division, explaining that Education Law §3020-a(5) limits judicial review of a hearing officer's determination to the grounds set out in CPLR §7511, said §7511, in relevant part,  provides that a court may vacate an arbitration award in the event the court finds that:

1. The rights of the party challenging the award were prejudiced by corruption, fraud or misconduct in procuring the award;

2. The arbitrator appointed as a neutral was not impartial;

3. The arbitrator exceeded his or her power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made;

4. There was a failure to follow the procedure of set out in CPLR Article 75 [except if the party applying  to vacate the award continued with the arbitration with notice of the defect and without objection].

In certain cases, however, the courts have adopted "a violation of a strong public policy standard" when considering petitions to vacate an arbitrator’s award. For example, in Matter of the Town of Callicoon, 79 NY2d 907, the Court of Appeals ruled that a court could vacate an arbitrator’s award if it determines that the award violated a strong public policy. 

The Appellate Division said that the award in VHB's case was not arbitrary and capricious and “was well supported by the evidence.” The Hearing Officer, said the court, had engaged in a through analysis of the facts and circumstances, evaluated witnesses' credibility, and arrived at a reasoned conclusion. VHB's due process rights were met as she was provided with notice, an appropriate hearing and the opportunity to present evidence and cross-examine witnesses.

As to VHB's claim that the arbitrator was prejudiced, court said that VHB “failed to sustain her burden of demonstrating bias or misconduct by the Hearing Officer, who did not exceed her powers.”

Addressing the penalty imposed on VHB, termination, the Appellate Division said that “the penalty of termination is not excessive” and denied VHB’s appeal in its entirety.

* See “letter of agreement” from NYC Department of Education Chancellor Klein to UFT President Michael Mulgrew dated April 15, 2010 concerning the processing and resolution of disciplinary charges filed against an educator employed by the New York City Department of Education pursuant to §3020-a of the Education Law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02544.htm

__________________________ 

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

__________________________

The suspension of a tenured teacher requires the board of education to serve written disciplinary charges against the teacher within a reasonable amount of time

The suspension of a tenured teacher requires the board of education to serve written disciplinary charges against the teacher within a reasonable amount of time

Appeal of Kavanaugh v Board of Education of the Hamburg Central School District, et al, Decisions of the Commissioner of Education, Decision No. 16,897

Martha A. Kavanaugh, a tenured teacher, appealed the decision of the Hamburg Central School District Board of Education placing her on "administrative leave and/or suspend[ing] her with pay” effective January 15, 2014. The noticed placing Kavanaugh in such status stated that the School Board was “investigating [her] conduct as a school district employee” and that “[w]hile on leave, you are not permitted on District grounds, including any school buildings.” 

On September 2, 2015, the School Board served disciplinary charges against Kavanaugh pursuant to Education Law §§3020 and 3020-a alleging “incompetence/neglect of duty and insubordination.” Kavanaugh requested an administrative hearing on these charges which the Commissioner’s decision indicates “appear to be pending” at the time the Commissioner considered Kavanaugh’s Education Law §310 appeal.

In this appeal Kavanaugh contended that the School Board’s action placing her on “administrative leave” on January 14, 2014, and thereafter extending her “suspension” on March 2, 2015, without filing disciplinary charges against her were unlawful.*

As redress, she asked the Commissioner to [1] declare such action by the Board null and void; [2] direct the Board to reinstate her to her former position; and [3] direct the Board to expunge any reference to the alleged unlawful suspension or to any disciplinary actions relating to that period of time from her personnel records.**  Additionally, Kavanaugh sought reimbursement of legal fees she had incurred as a result of the suspension; a declaration that Board’s actions violate both the Education Law and the Board members’ oath of office; that the Commissioner reprimand the respondents in this appeal; and an order directing such respondents to publicly apologize to her.

The School Board, in rebuttal, argued, among other things, that its placement of Kavanaugh on administrative leave was proper in all respects; that Kavanaugh failed to establish that Board acted in an arbitrary and capricious manner, and that Kavanaugh failed to state a claim. 

Addressing a number of procedural objections advanced by the School Board, the Commissioner ruled that as the Board’s action challenged by Kavanaugh “clearly affected [her] directly and she is asserting an adverse effect upon her personal and property rights as a result of being removed from her teaching duties,” Kavanaugh had standing to maintain her appeal.***

In response to the School Board’s argument that Kavanaugh’s challenging the Board’s actions of January 14, 2014 and March 2, 2015 regarding placing, or continuing, her on leave and/or suspending her with pay was untimely, the Commissioner ruled that Kavanaugh’s appeal was not untimely as these actions by the Board, if proven, would constitute a continuing wrong, commenting that “[t]he continuing wrong doctrine applies when the ongoing action is itself an unlawful action….”

Noting that the suspension of a tenured teacher requires a board of education to file written charges with the clerk or secretary of the board, the Commissioner ruled that “the suspension of a tenured teacher without the filing of such charges is ultra vires [acting beyond one's legal power or authority] and, thus, constitutes a continuing wrong” and, accordingly, Kavanaugh’s appeal was not untimely.

Addressing the merits of Kavanaugh’s appeal, the Commissioner again observed that “the suspension of a tenured teacher requires the board of education to file written charges within a reasonable amount of time, and that the suspension without the filing of charges is ultra vires and in violation of the individual’s tenure rights.” In this instance, said the Commissioner, a tenured teacher was suspended more than 19 months before disciplinary charges were served on her and she was prohibited from coming on school property and could not consult with her colleagues during this period.

Conceding that the School Board correctly asserted that a board of education has the right to place an employee on administrative leave pending an investigation and/or pending disciplinary charges being filed against an employee, the Commissioner said that, on this record, she found that the School Board’s actions constitute an unlawful suspension in the absence of the timely filing of disciplinary charges against Kavanaugh.  Accordingly, the Commissioner ruled that as the School Board did not act within a reasonable amount of time to prefer charges against Kavanaugh after removing her from teaching duties, “such removal must be deemed null and void and expungement is warranted.”

The Commissioner then directed “that any and all references to the January 14, 2014 placement of [Kavanaugh] on administrative leave and March 2, 2015 suspension be stricken from [Kavanaugh’s] records and personnel files [but that] nothing herein shall be construed as nullifying [the School Board’s] September 2, 2015 action to prefer charges pursuant to Education Law §3020-a."

* Kavanaugh did not challenge the §3020-a charges preferred against her by School Board on September 2, 2015 that were then the subject of the pending administrative hearing. 

** Kavanaugh also sought reimbursement of legal fees she incurred as a result of the suspension; a declaration that Board’s actions violate both the Education Law and the defendant Board members’ oath of office; that the Commissioner reprimand certain of the defendants; and the Commissioner order the School Board and the School Superintendent publicly apologize to her. The Commissioner indicated that she had no authority to provide such relief in an appeal pursuant to Education Law §310 were she to decide such relief, in whole or in part, was warranted.

*** The Commissioner dismissed that aspect of the Kavanaugh’s appeal that concerned the placement of a memorandum in her file pertaining to the assignments she was given while on leave and, or, suspension as untimely, explaining that Kavanaugh “commenced this appeal approximately three months after the issuance of the memorandum and offers no legal excuse for the delay.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16897

____________________

The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

____________________ 

  

Barbaralee Diamonstein-Spielvogel designated Chair of the New York State Council on the Arts

Barbaralee Diamonstein-Spielvogel designated Chair of the New York State Council on the Arts

Source: Office of the Governor

Governor Andrew M. Cuomo announced his designating Dr. Barbaralee Diamonstein-Spielvogel  Chair of the New York State Council on the Arts. Until now Dr. Diamonstein-Spielvogel served as Vice Chair.

The New York State Council on the Arts is dedicated to preserving and expanding the rich and diverse cultural resources that are and will become the heritage of New York’s citizens. The Council believes in supporting artistic excellence and the creative freedom of artists without censure, the rights of all New Yorkers to access and experience the power of the arts and culture, and the vital contribution the arts make to the quality of life in New York communities. NYSCA, serving all 62 counties, strives to achieve its mission through its core grant-making activity and by convening field leaders, providing information and advisory support, and working with partners on special initiatives to achieve mutual goals.

Throughout her career, Dr. Barbaralee Diamonstein-Spielvogel has served as a leading voice on civic and cultural engagement, having demonstrated a strong commitment to the arts, architecture, design, and public policy across New York City, New York State, and the country.

A former White House staff assistant, in 1966, she became the first Director of the New York City Department of Cultural Affairs. She later served as the longest-term Commissioner of the New York City Landmarks Preservation Commission from 1972 until 1987, and from 1987 to 1995, served as Chair of the New York City Landmarks Preservation Foundation. She has served as a member of the New York City Art Commission (now the Public Design Commission) and the New York City Commission of Cultural Affairs for more than a decade.

In 1987, she was appointed by President Reagan to the Board of the U.S. Holocaust Memorial Museum and in 1996 was appointed by President Clinton to the U.S. Commission of Fine Arts, where she later became the first woman to be elected as Vice Chair. In 2009, President Obama appointed her to the American Battle Monuments Commission.

Dr. Diamonstein-Spielvogel has served on the boards of a variety of educational, visual, literary, and performing arts institutions, including the Brooklyn Academy of Music, the Visiting Committee for Drawings at the Metropolitan Museum of Art; the Collection Committee of the Smithsonian Cooper Hewitt National Design Museum; the PEN American Center; the New York State Historic Archives Partnership Trust; and the Corcoran Gallery of Art in Washington, D.C. She is the founder and chair of the New York City Landmarks50 Alliance, and a founding member of the Highline, New York City, the Trust for the National Mall and the Museum of African Art in Washington, D.C.

Dr. Diamonstein-Spielvogel is the author of 23 books and the curator of eight international museum exhibitions. She earned her doctorate with high honors from New York University, and received honorary doctorates from the Maryland Institute College of Art, Longwood University, and the Pratt Institute.

Leaving employment without good cause will disqualify an applicant for unemployment insurance benefits

Leaving employment without good cause will disqualify an applicant for unemployment insurance benefits

Matter of Welsh (Commissioner of Labor), 2016 NY Slip Op 03042, Appellate Division, Third Department

One basis for disqualifying an applicant for unemployment insurance benefits is a determination that the individual left his or her employment without good cause.

Medina Welsh testified that in the course of her being considered for a promotion she submitted a falsified General Education Development certificate to the employer and then, “within minutes,” confessed the falsification to her supervisor. The supervisor warned Welsh that “she could be fired for such conduct.”Welsh then testified that she had submitted her resignation “because she did not want to have a termination on her record and hoped to be able to procure a job reference from the employer.”

The Unemployment Insurance Appeal Board denied Welsh's claim for unemployment insurance benefits and Welsh appealed the Board's ruling. The Appellate Division, however, sustained the Board’s determination, explaining that “quitting [one’s employment] in anticipation of discharge does not constitute good cause for leaving employment.”

Other court rulings sustaining the Unemployment Insurance Appeal Board’s denial of unemployment insurance benefits based on its finding that the claimant for such benefits did not leave his or her employment for good cause include:

Avoiding disciplinary action: Claimant’s election to accept the employer’s offer of an “early retirement package” instead of facing a scheduled disciplinary hearing for alleged misconduct, [Williams v NYC General Services, 256 AD2d 792].

Lack of valid license: The termination of a teacher from his or her position due to the lack of a valid teaching certificate did not constitute leaving one’s employment for good cause, [Matter of Duncanson (Commissioner of Labor), 115 AD3d 1106].

Harassment: Resignation from a position based on what the Appellate Division characterized as the employee's “perceived religious harassment” without first giving the employer an opportunity to investigate the matter, [Matter of Katz (Commissioner of Labor), 122 AD3d 993].

Job dissatisfaction: In Matter of Costello, 268 AD2d 845, the Appellate Division ruled that “dissatisfaction with one's employment, including assertions of being overworked, does not constitute good cause for leaving employment.”

Retirement incentive: Unemployment resulting from taking advantage of a severance package or an early retirement incentive does not constitute good cause for leaving one's employment

[Rubscha (Commissioner of Labor), 105 AD3d 1217].

Personal reasons: Claimant’s reasons for submitting his resignation  were found to be "personal and noncompelling," [Quintana v NYC Police Department, 297 A.D.2d 857].

Dissatisfaction with employer's business operations: “Dissatisfaction with an employer's method of doing business does not constitute good cause for leaving employment, particularly where the employee did not make a reasonable attempt to protect employment by notifying the employer about his or her concerns,” [Matter of French v Town of Lyndon, 79 AD3d 1515].

Resigning in anticipation of a layoff: Leaving one’s employment in anticipation of being laid-off is not leaving for good cause for the purposes of claiming, unemployment insurance benefits, [Matter of Thesing (Commission of Labor), 111AD3d 1015]. 

Provoked discharge:  A finding that the employee provoked his or her dismissal. In Matter of Rosseychuk (City of New York--Commissioner of Labor), 2016 NY Slip Op 01885, the Appellate Division said that a "Provoked discharge . . . is a narrowly drawn legal fiction designed to apply where an employee voluntarily engages in conduct which transgresses a legitimate known obligation and leaves the employer no choice but to discharge him [or her]."

Resignation to accept other employment:  Claimant had a valid offer of employment at the time he tendered his resignation but this offer of employment was subsequently rescinded by the prospective employer after it learned of Claimant’s arrest for “driving while ability impaired” and Claimant’s former employer would not allow him to withdraw or rescind his resignation, [Matter of Bennett (Commissioner of Labor), 106 AD3d 1359].

In contrast, leaving employment to relocate to another state in order to remain with one’s family typically will not disqualify an individual for unemployment insurance benefits,  [Rodriguez v Commissioner of Labor, 256 AD2d 768].

The Welsh decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03042.htm

Ruth Hassell-Thompson appointed Special Advisor For Policy And Community Affairs of New York State Homes And Community Renewal

Ruth Hassell-Thompson appointed Special Advisor For Policy And Community Affairs of New York State Homes And Community Renewal 
Source: Office of the Governor

Governor Andrew M. Cuomo appointed Ruth Hassell-Thompson as Special Advisor for Policy and Community Affairs of New York State Homes and Community Renewal. She will begin her new role in July 2016.

Hassell-Thompson has served in the New York State Senate since 2000. She is also a former City Council President and Acting Mayor of Mount Vernon, having been first elected to the City Council in 1993. She is also a retired nurse for Mount Vernon Hospital, specializing in pediatrics and substance abuse counseling and the founding President and CEO of “The Gathering,” a volunteer-staffed women’s center in Mount Vernon that provides counseling and support services, and has also worked extensively with individuals impacted by HIV/AIDS.

Prior to holding an elected office, she was President/CEO of Whart Development Company, Inc., a real estate development company that also provided consultant services to small and developing businesses. She was also the Executive Director of the Westchester Minority Contractors Association, helping to bring opportunities for growth and economic development to minority- and women-owned businesses in the region. Previously, she led the Westchester Community Opportunity Program, which provided medical, social and related support services to local residents in need.

Hassell-Thompson is the recipient of two Honorary Doctorate degrees; Mercy College, Doctor of Humane Letters; and Eastern Theological Consortium, Faculty of Arts and Sciences, Christ Theological Seminary, Doctor of Humanities. She is an alumna of Bronx Community College.

Maintaining "an attachment to the labor market" for the purposes of eligibility for workers’ compensation benefits

Maintaining "an attachment to the labor market" for the purposes of eligibility for workers’ compensation benefits

Cruz v Buffalo Bd. of Educ., 2016 NY Slip Op 03034, Appellate Division, Third Department

The New York State Workers’ Compensation Board requires that a claimant for benefits have “an attachment to the labor market” if he or she is seeking to receive partial disability benefits when he or she cannot perform the normal duties of his or her position but is able to perform other types of work.*

Such a claimant can maintain “an attachment to the labor market” by [1] making a diligent search for employment that he or she can perform notwithstanding the disability, [2] being employed in a position that is within his or her medical limitations such as working part-time or performing “light-duty” work or [3] self-employment. The entity paying the benefits may require the claimant to maintain appropriate records to demonstrate his or her “attachment to the labor market.”

The claim for workers’ compensation benefits filed by Edelmiro Cruz illustrates the application of the attachment to the labor market requirement.

Cruz, an assistant principal at a Buffalo City School District elementary school, suffered work-related injuries in May 2011 and was awarded workers' compensation benefits until he returned to work in August 2011. Cruz was terminated in February 2012 and subsequently applied for additional causally related lost earnings. The Buffalo City School District, a self-insured employer and its third-party administrator [Buffalo] controverted Cruz’s claim and raised the issue of his attachment to the labor market.Buffalo also alleged Cruz had made misrepresentations regarding his search for work.

A Workers' Compensation Law Judge denied benefits, finding that, due to a lack of a sufficient effort to find work, Cruz had voluntarily removed himself from the labor market. In addition, the Law Judge found that Cruz had made misrepresentations concerning his search for work and thus had violated Workers' Compensation Law §114-a. Cruz was disqualified from receiving further benefits.**

The Workers' Compensation Board, however, concluded that Buffalo had not submitted sufficient evidence to prove that Cruz had violated §114-a. Further, while the Board affirmed the Law Judge's determination that Cruz had voluntarily removed himself from the labor market following his termination, the Board also found that Cruz “had reattached to the labor market in February 2013.”

The Board restored the case to the calendar to address the issue of Cruz's reduced earnings subsequent to February 2013 and Buffalo appealed.

The Appellate Division affirmed the Board’s action explaining that "A claimant must demonstrate attachment to the labor market with evidence of a search for employment consistent with his or her medical restrictions" and the Board's determination as to whether a claimant has demonstrated an attachment to the labor market will be sustained if supported by substantial evidence.

In this instance medical evidence in the record indicated that Cruz, as a result of his injuries, could only sit or stand for no more than two hours a day and he could not lift more than 20 pounds. In addition Cruz had testified that [1] he began using the services of the Office of Vocational and Educational Services for Individuals with Disabilities [VESID] in January 2013; [2] he had obtained a part-time job at an auto parts store in February 2013, (and was working five hours a week at the time of his testimony); [3] he was training for a management position that offered more hours, and the store was willing to accommodate his "restrictions;" and [4] he was still searching for other work with a VESID job counselor.

Based upon the foregoing, said the court, the Board's decision that claimant had reattached to the labor market as of February 2013 is supported by substantial evidence.

Addressing Buffalo’s contention that Cruz made “a material misrepresentation in violation of Workers' Compensation Law §114-a,” the Appellate Division again said that the Board's determination with respect to this issue will not be disturbed if supported by substantial evidence.

Buffalo had relied on the report and testimony of a vocation counselor. The counselor testified that she had contacted 34 companies by telephone with which Cruz reported that he had filed an application for employment between February 2012 and February 2013. Although the counselor confirmed that two of the companies had received an application from Cruz, she also testified that 17 companies either did not respond or could not verify whether or not they had received an application and the counselor conceded that Cruz could have applied for employment with them.

Further, the Board noted that the counselor did not report the name of the individuals she had spoken with and concluded that, although Cruz had not presented sufficient evidence to establish that he had remained attached to the labor market during the period in question, there was a lack of credible evidence that he had knowingly made a false statement or misrepresented a material fact in order to obtain benefits.

As "the Board is vested with the discretion to evaluate witness credibility and to weigh conflicting evidence," the Appellate Division ruled that Board's decision that Buffalo had not met it burden of proof with respect to its allegation that Cruz’s violated §114-a of the Workers' Compensation Law was supported by substantial evidence.

* A claimant for workers’ compensation benefits temporarily totally disabled is deemed unable to perform any work and is not required to maintain “an attachment to that labor market” while so temporarily totally disabled. An individual found permanently totally disabled is not required to maintain an attachment to the labor market in any event.

** Workers' Compensation Law §114-a provides for the disqualification of an individual for worker’s compensation benefits in the event he or she has made a false statement or representation in applying for such benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03034.htm

Failing to seek a court order staying an arbitration precludes the objecting party from subsequently contending that there was no valid agreement to arbitrate

Failing to seek a court order staying an arbitration precludes the objecting party from subsequently contending that there was no valid agreement to arbitrate

Ruiz v County of Rockland, 2016 NY Slip Op 02999, Appellate Division, Second Department

Carlos Ruiz was terminated from his position with the County of Rockland. Ruiz, through his employee organization, demanded that the matter of his termination be submitted to arbitration under color of terms set out in collective bargaining agreement (CBA) between the County and United Federation of Police Officers, Inc., Local 613, [Union], of which Ruiz was a member. 

Rockland did not apply for a court order staying the arbitration although it sent letters to Ruiz, the Union and the assigned arbitrator indicating that “it refused to participate in an arbitration proceeding.”  Following the County's refusal, Ruiz and the Union [Petitioners] commenced an Article 75 proceeding to compel the County to arbitrate Ruiz's termination grievance in accordance with the terms of the CBA. The Supreme Court granted the petition and the County appealed the court’s ruling.

The Appellate Division sustained the Supreme Court’s decision explaining that the County's “failure to apply to stay arbitration precludes it from now contending that the CBA does not constitute a valid agreement to arbitrate” the issue, rejecting the County’s argument that the disciplinary procedure outlined in the CBA does not entitle Ruiz to grieve his termination through arbitration. The issue of whether Ruiz's termination was a type of disciplinary action subject to arbitration under the CBA “is a matter of contract interpretation and application to be resolved by the arbitrator.”

Why it is necessary for a party to go to court to seek a stay of arbitration? If the partly refuses to participate in the arbitration and does not have the authority of the court in the form of a “stay of arbitration,” temporary or otherwise, the arbitration can proceed “in absentia” of the objecting party.

For example, in Hall v Environmental Conservation, 235 AD2d 757, the Appellate Division ruled that an arbitrator [1] may proceed with a disciplinary arbitration notwithstanding the fact that the appointing authority refused to participate in the proceeding and [2] thereafter make a final, binding determination.  

The employer had boycotted the arbitration because, it contended, Hall was not entitled submit the matter to arbitration. The court upheld the arbitrator’s award in favor of the employee.

The same result obtains when a party refuses or fails to participate in an administrative proceedings. The decision of the Appellate Division, Third Department in Aures v Buffalo Board of Education, 272 A.D.2d 664, demonstrates this.

In Aures, the employer, the Buffalo City School District, failed to appear at an unem­ployment insurance hearing as scheduled. The hearing officer proceeded to hold the hearing "in absentia" and awarded unemployment insurance benefits to Aures. Rejecting Buffalo's appeal challenging the award of benefits, the Appellate Division ruled that the administrative determination was binding on the parties.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02999.htm