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Saturday, March 31, 2012

Retrenchment in education: a national problem

Retrenchment in education: a national problem
Source: Selected items reported in newspapers and blogs and on television concerning teacher layoffs

Below are some of the articles concerning the reduction of teaching personnel in schools districts throughout the United States.


Montville schools brace for cuts; 18 teachers get layoff notices
Norwich Bulletin
By KALA KACHMAR The Montville school district has issued layoff notices to 18 teachers indicating the school board might not renew their contracts next year because of budget constraints. The state requires teachers be notified by May 1 if there is a ...
See all stories on this topic »

Pontiac schools to lay off 95, including 43 teachers
The Detroit News
By Shawn D. Lewis Pontiac— The Pontiac Public School District will lay off 95 employees, including 43 teachers, beginning next month as part of its plan to eliminate a $24.5 million deficit. The cuts also include 27 school administrators, ...
See all stories on this topic »

Zionsville economy, property values, quality teachers hang in the balance of ...
Indianapolis Star
The rejection resulted in the layoff of 21 teaching and counseling positions. Last year, the school district finally got a money-saving ballot measure passed when 74.5 percent approved a plan to refinance debt as a way to generate a few million dollars ...
See all stories on this topic »

Ohio Federation of Teachers says Cleveland reform plan lacks any proven ...
Plain Dealer
Jackson's plan would possibly expand the school year or school day, set-up a merit pay for teachers, base layoffs on teacher performance and make getting rid of poor teachers easier. Seniority would no longer be the sole determining factor in layoffs ...
See all stories on this topic »


Shrewsbury parents object to class sizes, talk override
Wicked Local
Although Superintendent Joseph Sawyer announced $2.3 million in cuts recently, including five teacher layoffs and the loss of 32 full-time positions, the district is still facing an $844000 budget gap. If the town does not receive increased revenue, ...
See all stories on this topic »

979 fewer teachers in Maryland public schools
The Star Democrat
Half of the state's school systems have fewer teachers this year than last with a system's largest decline reaching 634. In recent years, some other states have undergone budget cuts sometimes resulting in thousands of teacher layoffs.
See all stories on this topic »

School board works to close budget gap
YNN
After last week's recommendation of more than 100 teacher layoffs, Superintendent Joe Hochreiter laid out further possible reductions in special education services and facility usage. Hochreiter also challenged the district staff to make concessions if ...
See all stories on this topic »

Littleton Educators' Association, School Committee reach tentative agreement
Wicked Local
... would cost $16.9 million in fiscal 2013, including step-and-lane salary increases and increased special education costs, the School Committee has voted for a $16.3 million budget, which may incorporate both teacher layoffs and fee increases.
See all stories on this topic »

Public speaks against Shenandoah Valley budget plan
Republican & Herald
SHENANDOAH - The proposed cuts in many programs and layoffs of teachers drew a standing-room-only crowd for Wednesday's regular meeting of the Shenandoah Valley Board of Education, with most speakers focusing on the planned loss of the music program.
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Schools Will Be Protected From Cuts Next Year, Walcott Says
New York Times
By Anna M. Phillips After years of painful cuts and threats of teacher layoffs, New York officials laid out on Tuesday a decidedly more optimistic portrait of financing for city schools next year, saying they expected that principals would have enough ...
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Massie tells City Council funding gap will bring more teacher layoffs
Lynchburg News and Advance
Interim Superintendent Larry Massie told Lynchburg City Council Tuesday the school division will cut more teachers, beyond the 34 positions already budgeted, if $3.7 million in additional funding does not materialize. Massie and School Board Chairman ...
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No teacher layoffs in Kingsburg schools
Kingsburg Recorder
By Mary Lou Aguirre Kingsburg Joint Union High School District teachers can enjoy their spring vacation knowing their jobs aren't in jeopardy. KHS Principal/Superintendent Randy Morris was asked if state cuts to education would result in layoffs for ...
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Hundreds protest layoffs at Baldwin Park Unified meeting
Pasadena Star-News
BALDWIN PARK - Dressed in red and armed with signs and chants, hundreds of parents, children and teachers Tuesday took on a half-mile march to a Baldwin Park Unified board meeting to protest recent teacher layoffs. The rally came on the heels of a ...
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Breaking Down the Budget: What Teacher Layoffs Would Mean
Patch.com
Patch File photo As the Three Village Central School District copes with losses in state aid combined with unfunded mandates and rising costs, administrators have proposed eliminating nine full-time equivalent teaching positions at the elementary level ...
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Fulton County Schools officials say budget could be balanced without layoffs ...
Atlanta Journal Constitution
By D. Aileen Dodd Fulton County Schools chief financial officer Robert Morales said Tuesday as the district prepares for budget season it is facing a $41.9 million funding gap that it could handle without teacher layoffs or furlough days.
See all stories on this topic »

Students upset iPads bought for school while teachers are laid-off
39online.com
Well originally there was the suggestion that the $18 million spent on the devices would be better served preventing teacher's layoffs. But since bond money can't be used for salaries, the argument of equality came up, suggesting that rather than ...
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School Board Approves 52 Layoff Notices, Technology Upgrades
Patch.com
By Carl Engelking As part of the planning process for the 2012-13 budget, the Menomonee Falls School Board on Monday approved the issuance of 52 preliminary layoff notices for teaching staff. School Board Member Gina Palazzari said the total number of ...
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Protest Planned at School Board Meeting for Teacher Layoffs
Patch.com
"There will be hundreds of parents, teachers and students wearing red to support our teachers." At least seven teachers are being laid off in Geddes Elementary, according to Mata. The school is located at 14600 Cavette Place, close to the intersection ...
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Dublin to lay off 16 teachers, cut 30 vacant positions
Columbus Dispatch
By Collin Binkley Two central Ohio school districts are finalizing layoffs for next school year after November levy failures. The Dublin school board voted tonight to cut 46 teaching jobs –– though only 16 people will lose jobs –– and 133 supplemental ...
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Republicans look to governor on teacher layoffs
Pioneer Press
By Megan Boldt State lawmakers who want to end seniority-based teacher layoffs put Gov. Mark Dayton's education chief on the hot seat Monday, March 26, on whether the Democrat's administration had any appetite to negotiate an agreement this year on ...
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Calif. Schools Urged to Change Layoff Policy to Improve Teaching
NewsMax.com
By Andy Butcher California school officials should change their staff downsizing policy to improve teaching and boost morale, according to the state legislative analyst's office. Procedures now base layoffs on seniority, which means that the most ...
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California Urged To Address Teacher-Layoff Policies
Education Week News (blog)
By Stephen Sawchuk on March 26, 2012 10:18 AM An analysis from California's Legislative Analyst's Office urges the state to consider revamping its teacher-layoff policies, including reducing the emphasis on seniority. The report makes nonpartisan ...
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Board Rejects Plan to Lay Off 500 Teachers, Staff
Patch.com
“Our teachers and paraprofessionals are our children's greatest asset. We really urge you to have some discussions with us before making a decision.” Staff members urged the board to reject the layoffs, and some questioned a proposal to implement a ...
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Lennox district shields teachers
Daily Breeze
By Rob Kuznia Staff Writer In a move that has the teachers union up in arms, the Lennox School District is making an end-run around "last-hired, first-fired" seniority laws, sending layoff notices to 100 of the district's 340 teachers, yet shielding ...
See all stories on this topic »

Cleveland Teachers Union and Mayor Frank Jackson move closer to agreement on ...
Plain Dealer (blog)
The major accord came with how to handle the layoff and recall of teachers, with Jackson agreeing Monday to use the plan suggested by teachers last week. The compromise plan would rely on teacher evaluations first, and tenure and seniority second.
See all stories on this topic »


Teachers' Support For Reform Depends In Part On Experience -- Gates/Scholastic ...
Huffington Post
"Layoffs shouldn't be based on seniority, and it's good to make it hard to let go of teachers who are doing well." Many of these reform measures involve shaking up the teaching profession in a way that makes promotion less dependent on experience.
See all stories on this topic »

Teacher tenure bill may be unacceptable to Gov. Dayton
Minnesota Public Radio
They want public school administrators to be able to consider job performance, and not just years of service, when making decisions about teacher layoffs. Cassellius said she shares the goal of having effective teachers in every classroom.
See all stories on this topic »


Clyde cuts teachers, mulls levy
Fremont News Messenger
Elchert said there is a possibility the district could receive more retirements in the summer, which could lead to some of the laid-off employees being called back to work. The board also approved reductions to several non-teaching positions.
See all stories on this topic »


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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.
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Friday, March 30, 2012

In an Article 75 challenge to a §3020-a disciplinary decision, the court asks [1] does the award have evidentiary support? and [2] is the award arbitrary and capricious?

In an Article 75 challenge to a §3020-a disciplinary decision, the court asks [1] does the award have evidentiary support? and [2] is the award arbitrary and capricious?
Malone v Board of Educ. of East Meadow Union Free School Dist., 2012 NY Slip Op 02306, Appellate Division, Second Department

A tenured teacher was stopping cars exiting the driveway of East Meadow High School in order to distribute leaflets concerning ongoing contract negotiations between the teachers' union and the East Meadow Union Free School District.

When the teacher continued to distribute the leaflets after the school principal directed him to cease that activity, he was served with disciplinary charges pursuant to §3020-a of the Education Law alleging [1] misconduct for causing a hazardous condition and [2] insubordination for failing to obey the principal's directive.

Ultimately the charges proceeded to arbitration and the arbitrator found the teacher guilty of both charges. The teacher then filed an Article 75 petition seeking to vacate the arbitration award.

Supreme Court denied the teacher’s petition and dismissed the proceeding. The Appellate Division affirmed the Supreme Court’s ruling.

Noting that where the requirement to arbitrate is statutory, as is the case in a disciplinary action conducted pursuant to Education Law §3020-a* the arbitrator's determination is subject to "closer judicial scrutiny" under CPLR 7511(b) than it would receive had the arbitration been conducted voluntarily.

However, said the court, in an Article 75 proceeding a court determines only whether the award had evidentiary support and whether the award was arbitrary and capricious.**

Here, the Appellate Division decided that the determination of the arbitrator was based on the evidence proffered at the hearing. This, said the court, including the the teacher's testimony that he approached vehicles as they exited the driveway of the high school, which required him to cross in front of moving vehicles. This, according to the decision, "established the charge of misconduct by adequate evidence."

Further, said the court, “The testimony of both [the teacher] and the school principal that [the teacher] continued to distribute leaflets after being directed to cease this activity established the charge of insubordination by adequate evidence.”

Thus, concluded the Appellate Division, “the findings with respect to both charges were not arbitrary and capricious.”

* See Education Law §3020-a[3]

** Education Law §3020-a[5], “Appeal” provides that “ Not later than ten days after receipt of the hearing officer's decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seven thousand five hundred eleven of the civil practice law and rules. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02306.htm


===================
The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 1500 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.
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Thursday, March 29, 2012

Letter from an employer that has an adverse impact on an individual and he or she knows he or she is aggrieved thereby, triggers the running of the relevant Statute of Limitations

Letter from an employer that has an adverse impact on an individual and he or she knows he or she is aggrieved thereby, triggers the running of the relevant Statute of Limitations
Coleman v Prendergast, 2012 NY Slip Op 01814, Appellate Division, Second Department

Carl Coleman and his co-petitioners [Coleman] filed a petition pursuant to Article 78 of the CPLR Article 78 seeking a court review changes in the qualifications for their positions and a requirement that they take certain examinations.

Noting that such an action must be commenced "within four months after the determination to be reviewed becomes final and binding upon the petitioner," Supreme Court ruled that their petition was untimely.

According to the decision, Coleman received correspondence from the Rockland County Community College in December 2008 advising him that the qualifications for his position as Security Officers at College had changed. As a result he had to take “certain examinations” and the first of the examinations would be held in February 2009.

The Appellate Division noted that “This correspondence was a final and binding determination within the meaning of CPLR 217(1),” explaining that it had an impact upon Coleman and he knew he was aggrieved, whereupon it commenced the running of the statute of limitations.

However, the court noted, Coleman did not commence his Article 78 action until January 2010, which was beyond the applicable four-month statute of limitations of CPLR 217(1).

Thus, said the Appellate Division, “Supreme Court properly granted that branch of the [College’s] motion which was to dismiss the proceeding as time-barred, and dismissed the proceeding.”

The decision is posted on the Internet at:

Background investigations of applicants for employment - Cybervetting

Background investigations of applicants for employment - Cybervetting
Source: AELE Law Enforcement Legal Center, http://www.aele.org/, Reproduced with permission. Copyright © 2012 AELE

Recently there have been a number of newspaper stories reporting that prospective employers are asking applicants for employment for their passwords to access their "private sites " on their social media accounts such as Facebook and Twitter in the course of the interview process.

AELE has posted an item on its website entitled Developing a Cybervetting Strategy - IACP & DoD guidance manual.

Focusing on using cybervetting in an employment in law enforcement setting, the posting asks: “May background investigators lawfully require applicants to furnish user IDs and passwords to reveal privacy-protected areas on social media web pages?” 

AELE conclusion: Cybervetting may be used in screening applicants for employment in law enforcement positions and notes that it recently participated in national focus group meetings involving police chiefs, attorneys, psychologists and participants from other disciplines.

A report, Developing a Cybervetting Strategy for Law Enforcement, is posted on the Internet at: http://www.iacpsocialmedia.org/Portals/1/documents/CybervettingReport.pdf 

The report contains material that may be applicable in settings other than those involving the employment of law enforcement personnel.

N.B. AELE describes itself as "an extraordinary and unique resource, with free publications and online back issues since 2000." AELE has a searchable library of more than 32,000 case digests organized into 700 + indexed topics dating back to 1975. AELE states that there are no advertisements, tracking "cookies" or popups on its website. Users do not have to preregister and there is no time limit on research sessions. The contents of its online law library may be copied and pasted, saved or printed (except for commercial purposes) by users. AELE has a free search tool covering its database..


Wednesday, March 28, 2012

The Triborough Doctrine could continue expired Taylor Law contract provisions until a new contract is ratified notwithstanding statutory provisions to the contrary

The Triborough Doctrine could continue expired Taylor Law contract provisions until a new contract is ratified notwithstanding statutory provisions to the contrary
City of Oswego v Oswego City Firefighters Association, Local 2707, 2012 NY Slip Op 01996, Appellate Division, Fourth Department

The collective bargaining agreement between the City of Oswego and the Firefighters Association provided that the City would pay the firefighters' employee contributions to the New York State Police and Fireman's Retirement System (PFRS). In addition, the City agreed to make the Retirement and Social Security Law Plan §384-d available to the firefighters.

In 2009, the Legislature enacted Retirement and Social Security Law Article 22, which provides, in relevant part, that all members of the PFRS who joined the PFRS on or after the effective date of Article 22 would be required to contribute 3% of their annual wages to the State retirement plan in which they were enrolled.

There was an exception set out in the statue, however. The exception provided that "[n]otwithstanding any provision of law to the contrary, nothing in this act shall limit the eligibility of any member of an employee organization to join a special retirement plan open to him or her pursuant to a collectively negotiated agreement with any state or local government employer, where such agreement is in effect on the effective date of this act and so long as such agreement remains in effect thereafter; provided, however, that any such eligibility shall not apply upon termination of such agreement for employees otherwise subject to the provisions of article twenty-two of the retirement and social security law" (see Chapter 504 of the Laws of  2009, Part A, §8)..

The City had appointed several firefighters after the effective date of Chapter 504. When  the City refused to contribute the 3% "employee contribution" toward their respective retirement plans, the Union filed a grievance and ultimately demanded arbitration.

The parties stipulated as to the exhibits to be submitted to the arbitrator and left it to the arbitrator to frame the issue. In his "opinion and award," the arbitrator concluded that the firefighters who were hired by the City after the effective date of Article 22 were eligible to elect to participate in the 384-d plan provided for in Section 26.1 of the agreement and that the City would be required to pay for the employees' contributions as negotiated under the terms of that agreement.

The City filed an Article 75 petition seeking an order by Supreme Court vacating the arbitration award in favor of Local 2707.  The court dismissed the City’s petition and granted the Local’ application to confirm the award.

In its petition the City had argued the award “was in direct contravention of the Retirement and Social Security Law, the Civil Service Law and the ‘strong public policies’ underlying those laws.” The Appellate Division, affirming Supreme Court’s ruling, held that the arbitrator’s award was not contrary to existing statutes, did not violate a strong public policy and was not irrational.

The crucial issue on this appeal, said the court, was whether the exception in Section 8 applies to the newly appointed firefighters. That issue turned on whether the terms of the expired agreement between the City and the Local was still in effect at the time the new firefighters joined the PFRS. Pursuant to what is known as the Triborough doctrine as embodied in Civil Service Law §209-a (1) (e), the Appellate Division held that "it is an improper practice" [subject to an exception not relevant here] for a public employer "to refuse to continue all the terms of an expired agreement until a new agreement is negotiated" (See Civil Service Law §209-a [1] [e]).

Noting that a new agreement between the City and the Union had not yet been negotiated and ratified at the time the new firefighters had joined the PFRS, the Appellate Division held that all of the terms of the expired agreement were still in effect as mandated by the Triborough Doctrine. Thus, the determination to apply the Section 8 exception to the subject firefighters does not "violate a defined and discernible public policy...or... create an explicit conflict with other laws and their attendant policy concerns."

The Appellate Division also addressed another issue: the determination of the New York State Employees’ Retirement System relied upon by the City when it declined to make the employee contributions on behalf of its newly appointed firefighters.

The court said although the Supreme Court’s decision, which it affirmed, “is inconsistent with the determination of the Retirement System” as set forth in its letter to the City dated March 2, 2010, "where, as here, the question is one of pure statutory construction, dependent only on accurate apprehension of legislative intent, judicial review is less restricted and there is little basis to rely upon any special competence or expertise of the administrative agency."

The decision is posted on the Internet at:

Tuesday, March 27, 2012

New York State 2012-2013 budget agreement announced

New York State 2012-2013 budget agreement announced
Source: Office of the Governor

On Tuesday, March 27, 2012, Governor Andrew M. Cuomo, Senate Majority Leader Dean Skelos and Assembly Speaker Sheldon Silver announced an agreement on the 2012-2013 New York State Budget.

 The key elements include:

Establishes the New York Works Task Force - The New York Works Task Force will coordinate capital plans across 45 agencies and authorities, oversee investment in projects and access to funding, and facilitate the creation of tens of thousands of jobs.

Prior to the New York Works initiative, there was no comprehensive state plan for the $16 billion in annual capital expenditures by 45 state agencies and authorities. In some cases, including with respect to projects by the Port Authority, the MTA, and the Department of Transportation, billions of dollars of taxpayer or commuter funds are being used to fund transportation plans in the same region with no coordination between the agencies. For the first time, the New York Works Task Force will develop a coordinated capital infrastructure plan among agencies and authorities. The Task Force, made up of leaders in finance, labor, planning and transportation will also recommend financing options for projects and methods to accelerate construction of critical infrastructure.

The New York Works Task Force will consist of fifteen members. Nine of the members will be appointed by the Governor and six by the Legislature. All major state agencies and authorities will participate in an implementation council to coordinate capital planning.

All New York Works projects will be posted on the web with real-time updates so that New Yorkers can track the progress of projects in their community. The full list will be posted online over the next several days.

Rebuild Roads and Bridges - The Budget funds the New York Works Program with $232 million in state capital funds and $917 million in new Federal funds for a total of $1.2 billion in new spending to accelerate repair, replacement and improvement of deficient roads and bridges. This funding is over and above the $1.6 billion already allocated this year to the core transportation capital program for roads and bridges. This program is in addition to the advancement of the Tappan Zee Bridge replacement project that will inject billions more into the regional and state economy.

Thirty-two percent of the state's bridges are rated deficient and forty percent of the state's pavement surface is rated deficient. The additional $1.2 billion in accelerated projects selected by the Department of Transportation will include $212 million to address bridge deck and structural replacement or rehabilitation needs on approximately 115 bridges, $250 million for more than 2,000 miles of low cost pavement preservation and pavement treatments, and $700 million for transportation projects of regional or statewide significance throughout the state that had been delayed due to resource constraints.

The New York Works Program's Accelerated Bridge and Pavement program will expedite projects of regional significance to immediately create jobs, address critical infrastructure needs, and achieve savings. The Accelerated Bridge and Pavement program represents a different way of doing business for New York State. Rather than executing 100 different contracts for 100 different bridges, projects will be consolidated under regional contracts – a more efficient process that will enable the state to complete critical projects on time and under budget.

Second Round of Regional Council Awards - Last year, Governor Cuomo created 10 Regional Councils that developed long term strategic plans for economic growth for their regions. These Councils were part of a process that awarded $785 million for job creation and community development. The Budget authorizes a second round of funding for the Regional Councils, including $220 million to implement regional strategic plans – $150 million in new capital funding and $70 million in tax credits from the Excelsior Jobs Program.

In addition, resources from a wide range of existing agency programs will be available to businesses and sponsors for economic development purposes that are consistent with Regional Council plans through the innovative Consolidated Funding Application. This process allows one-stop access for project sponsors to apply and compete for over $500 million in additional funding available through existing agency programs.

Buffalo Regional Innovation Cluster - The Budget includes funding for the first phase of a multi-year $1 billion economic development package for Buffalo. The Governor has challenged the area's Regional Council to develop a viable plan to create thousands of jobs and spur at least $5 billion in new investment and economic activity. The Budget includes $100 million for the first year, consisting of $75 million in capital and $25 million from the Excelsior Tax Credit Program.

New and Expanded Round of NY SUNY 2020 - The Budget includes $30 million of capital funding for a new round of the Governor's NYSUNY 2020 Challenge Grants. When combined with an equal share from SUNY, the University's 60 campuses, excluding the university centers, will compete for three $20 million challenge grants.

Energy SuperHighway Initiative - 
The Budget includes $16.2 million to New York State Energy Research and Development Authority for research and development programs and the development of the 2013 State Energy Plan which is part of the Governor's Energy Highway Initiative. The initiative will develop an action plan for both short-term and long-term actions that will facilitate billions of dollars in private investment in Energy Highway projects. The Task Force recommendations will be a core component of the 2013 State Energy Plan.

Funding the MTA Capital Plan to Improve Transit in Metropolitan New York - The Budget includes the Governor's plan to support full funding of the MTA with $770 million of direct funding from the state. The five-year MTA capital plan contains $22.2 billion for projects critical to transit in New York City, Long Island and the Hudson Valley, and that will produce tens of thousands of jobs. The first two years of the MTA capital plan were funded at $9.1 billion. The Budget will help allow the MTA to obtain the full $13.1 billion needed to achieve the five year capital plan and complete some of the largest construction projects in the history of New York. The MTA Capital Program will also continue to fund the four mega projects underway: 2nd Avenue Subway, Eastside Access for the Long Island Rail Road, the Fulton Street Transit Center and the extension of the 7 Subway to the far Westside. The program will also fund new subway and rail cars, new energy-efficient "green" buses, station rehabilitation, enhanced communications and signals, new rail yards, as well as new elevators and escalators.

Repairing New York's Dams and Flood Control Infrastructure - The state’s Department of Environmental Conservation maintains 106 flood control projects, of which 91 have been rated "minimally acceptable" or "unacceptable" by the Army Corps of Engineers. Additionally, the Department owns 577 dams statewide. Of the DEC owned dams, DEC engineers classify at least 24 dams as "high" and "intermediate" hazard structures, where failure poses serious threat to human life or significant property damage. The New York Works Funds will designate $102 million, leveraging more than $100 million in matching funds, to repair aged and otherwise failing structures, including levees, flood walls, dams, pumps and channels. The $102 million will include $18.5 million to repair state-owned dams, $56 million to perform maintenance of flood control facilities such as levees, and $27 million to implement coastal hazard and inlet navigation maintenance projects, plus over $100 million in matching funds.

Rebuilding New York's State Parks - The New York Works Fund will provide $89 million, leveraging $143 million in total funding, to rehabilitate state parks, representing the single largest infusion in history of capital dollars for New York's parks. Currently, 83% of state parks are deteriorating. Projects will be funded in every region of the state, making improvements in 48 state parks and historic sites that serve 37 million visitors annually. This investment in New York's parks system will enhance the visitor experience and enable our state parks to reemerge after years of decline.

New York State Gaming Commission - Following the landmark agreement made earlier this month to begin the process of amending the state constitution to allow casino gaming in New York, the Budget enacts the Governor's proposal to create a New York State Gaming Commission, including the merger of the Division of Lottery and the Racing and Wagering Board. This reform reorganizes the state's gaming regulatory functions into a single oversight body. The new Commission would be comprised of seven members, five appointed by the Governor, and one apiece appointed by the Senate Majority Leader and the Assembly Speaker. The gaming industry constitutes a vital sector of New York's overall economy and contributes to economic development and job creation across the state. Under this agreement, the regulation of gaming will be conducted in the most efficient, transparent and effective manner possible, and eliminate unnecessary regulation redundancies. The new State Gaming Commission will help ensure that all gaming activity conducted in New York is of the highest integrity, credibility, and quality, and that the best interests of the public are served.

State Spending Growth Held to 2% - For the second year in a row, the Budget maintains two percent or less year to year growth in state spending, consistent with the tax cap on local governments. State Funds will total approximately $88.8 billion in 2012-13. The Budget achieves flat state agency spending through the ongoing redesign of agency operations to reduce duplication, redundancy and waste. Since Governor Cuomo took office, out year deficits have been reduced by a cumulative $72 billion since taking office.

All Funds Spending Reduced - All Funds spending will total approximately $132.6 billion, a decrease of $135 million from last year. This is the second consecutive year with a net reduction in All Funds spending, the first time this has happened in at least three decades.

Increase in School Aid: - The Budget includes a total of approximately $20.4 billion for school aid, including performance grants to reward academic improvement and school district efficiencies. This represents an increase of $805 million in total education spending, with most of the allocated increase targeted to high needs school districts. The budget includes a total of $125 million to be allocated for performance grants, including $50 million in continuing payments to the school districts who will receive awards in the first round of grants, and an additional $75 million in awards to a second round of school districts.

Interchangeability - To achieve greater efficiency in government operations and improve performance, the Budget enacts the Governor's proposal to ensure fiscal flexibility in order to expedite government consolidation and streamlining. The interchangeability provisions give the state the authority to move certain funds between state agencies that will save money in back office functions such as business services, information technology and call centers. This will allow the state to move functions from one state agency to another to improve efficiency, ensure better performance, and reduce costs for taxpayers. The transfers will not be used to alter or shift programmatic functions of the agencies.

Transforming State Procurement Process - The Budget includes new measures to allow state agencies to purchase common goods and services through centralized contracts. The Office of General Services (OGS) will be able to buy in bulk – from pens to cars – harnessing the state's purchasing power to save $100 million in 2012-2013 and a projected $755 million over five years. The budget further eliminates the duplicative and wasteful review of statewide centralized contracts, accelerating the opportunity for agencies to use the new centralized contracts and achieve savings as soon as possible. Local governments and not-for-profits will be able to participate in the new centralized contracting process, increasing the state's purchasing power, while passing down reduced costs to localities and multiplying the savings OGS will achieve for the taxpayers.

Consolidation - In addition to creating a New York State Gaming Commission through the merger of the Division of Lottery and the Racing and Wagering Board, the Budget includes transferring the management and operations of the Belleayre Ski Center from the Department of Environmental Conservation (DEC) to the Olympic Regional Development Authority (ORDA). Given ORDA's expertise in managing other ski centers (Gore and Whiteface), Governor Cuomo proposed this transfer to improve operations and opportunities for tourism at Belleayre Mountain.

The Budget further includes the elimination of 25 boards and commissions that are no longer active or whose missions have been completed or become redundant. A list of affected entities is here: http://www.governor.ny.gov/assets/documents/EliminatedAgenciesandCommissions.pdf.

State Relief for Local Medicaid Expenses - The Budget provides significant mandate relief in Medicaid spending for all counties and New York City. The Budget includes a state takeover of growth in the local share of Medicaid costs and implements a phased takeover of local government Medicaid administration expenses. In 2013-14, local government Medicaid growth will be reduced to two percent, and then reduced by an additional one percent annually over the subsequent two years so that in 2015-16, counties and New York City will no longer have to contribute toward the growth of Medicaid expenses. The takeover of the three percent Medicaid growth factor will save counties and New York City $1.2 billion over five state fiscal years. The phased takeover of local government administrative costs of Medicaid will accomplish statewide economies of scale, lead to associated savings and help New York achieve reforms proposed at the State and Federal levels.

Reform Teacher Disciplinary Hearings

The Budget includes several reforms to the teacher disciplinary process. The reforms include allowing the State Education Department to set reasonable limits on the costs of teacher disciplinary hearings, disqualify hearing officers who fail to comply with statutory deadlines and allow the State make use of new technology to help reduce the cost of the hearing.

Medicaid Spending - The Budget continues the two year appropriation structure and limits Department of Health Spending to four percent, commensurate with the Medicaid spending cap. In addition, the Budget proceeds with the Medicaid Redesign Team’s recommendations, including investment in affordable housing for high cost populations, enhancements in essential benefits and relief to essentially community providers.


Public Assistance - The Budget provides funding for core supportive services for needy populations and implements measures to improve program performance. Governor Cuomo secured additional funding through the Federal Temporary Assistance for Needy Families program, allowing for an increase of 5% in the public assistance grant effective July 1, 2012, to be followed by an additional 5% increase on October 1, 2012. These are the final increments of a multi-phase increase in the public assistance basic grant, which has not been increased since 1990.

Community Colleges - The Budget includes an additional $31.3 million in support for local community colleges, raising base aid from $2,122 to $2,272 per full-time equivalent student. Community colleges are important economic drivers that educate students, retrain workers, and partner with local businesses. This additional support will allow community colleges across the state to expand class offerings, keep tuition affordable, and hire additional faculty.

Higher Education - Consistent with the provisions in the NYSUNY 2020 Challenge Grant Program, the Budget maintains General Fund operating support for SUNY and CUNY colleges at prior-year levels. The Budget also accommodates the authorized 2012-13 tuition increases by providing $113.2 million in additional spending authority for SUNY and $66.6 million for CUNY.

Juvenile Justice – Close to Home - The Budget launches Governor Cuomo's Close to Home Initiative that will help the state reduce crime, improve outcomes for youth and the communities in which they live, and increase the efficiency of the juvenile justice facility system. The Close to Home legislation allows New York City to take responsibility for the care of lower risk youth who come from the City. While youth committed to secure level juvenile justice facilities will continue to be in State custody and facilities, New York City youth currently in State non-secure and limited secure facilities will be transferred to City-administered programs and facilities. Youth from New York City needing this level of care going forward will be in the custody of New York City and served in settings that are appropriate for their educational, mental health, substance abuse and other service needs, without compromising public safety. New York City will take over this responsibility from the State with regard to youth in non-secure placements no sooner than September 1, 2012, and for youth in limited secure placements no earlier than April 1, 2013, following the approval by the State of comprehensive implementation plans for each level of care.

Housing Assistance - The Budget provides $14.3 million for 208 urban and rural community-based organizations that to help create additional home ownership opportunities and assist with the development and management of affordable rental housing.

Foreclosure Relief Unit - The Budget provides $9 million for the continuation of mortgage foreclosure counseling services through Homes and Community Renewal, with additional services financed with proceeds of the National Mortgage Servicing Settlement Agreement. In addition, the Department of Financial Services will establish a new Foreclosure Relief Unit to provide counseling and mediation services to help New Yorkers stay in their homes.

Increased Resources to Enhance Bus Inspections - The Budget gives DOT the ability to increase bus inspections and improve passenger safety. DOT will be able to conduct an additional 5,000 to 7,000 roadside inspections with funding agreed to in the budget. Currently, bus operators undergo two routine inspections per year by DOT, regardless if they meet DOT standards or not. This law will enhance public safety by allowing DOT to conduct follow-up inspections if an operator fails any of its previous inspections.

Office of New Americans - The Budget establishes an Office of New Americans within the Department of State to support efforts to assist legal permanent residents to better participate in the state's economy and civic life. The Office of New Americans will focus on expanding access to English language education services, promoting U.S. citizenship and civic involvement, and expanding business opportunities for new American business owners.

Translation Services for Pharmacy Prescriptions - This Budget requires the State Education Department and the Department of Health to issue regulations that will require chain pharmacy stores to provide oral and written translation services to customers with limited English proficiency who are filling prescriptions. Such critical services will ensure that these customers fully understand the nature of the medication they're receiving and the instructions for its use so that a language barrier does not become a threat to their successful treatment.

Determining the compensation to be paid a teacher absent from work when “school is in recess”

Determining the compensation to be paid a teacher absent from work when “school is in recess”
Appeal of Denise Zaccaro from actions of the Board of Education of the Garden City Union Free School District, Decisions of the Commissioner of Education, Decision #16,336

This appeal addresses the calculating the compensation to be paid a teacher absent from work during a period of time when there is an intervening “recess period.”*

Education Law §3101(3) sets out the methodology for determining a teacher’s salary in the event he or she does not fulfill his or her "professional service obligation" and provides that such compensation is to be prorated as follows: In the event the teacher does not render service during the full 10 months that public schools are required to be in session “[f]or purposes of prorating the salary of a teacher not rendering all the service required of teachers during such period, the monthly rate for services rendered shall be at least one tenth of the salary and the daily rate at least one two-hundredth of the salary.” 

Citing Matter of Swaim, et al. (9 Ed Dept Rep 23, Decision No. 8031), the Commissioner said that there is an ambiguity in Education Law §3101(3) “... resulting from the statutory rate of one two-hundredths and the factual situation that some months have fewer or more than 20 working days.” The Commissioner then stated that this ambiguity can most reasonably be resolved by the following interpretation of the statute:

If the teacher provides services for half or less of the working days in the month, he or she should be reimbursed at the rate of one two-hundredths of his annual salary for each day he or she works.  Similarly, if a teacher works more than half of the required working days in a given month but is absent without authority for the remainder of such working days, a deduction of one two-hundredths of his annual salary should be made for each of the days of unauthorized absence.

Using the Swaim method entails counting all of the “working days” during a given month (excluding days in which school is not in session) and dividing that number in half, then comparing that number with the amount of days the teacher worked.

If, said the Commissioner, the number of days worked exceeds one-half of the “working days” in that month, the teacher would be entitled to one-tenth of his or her annual salary, minus one two-hundredths for each “working day” he or she did not work. 

On the other hand, the Commissioner indicated that in the event “the number of days the teacher actually worked is equal to or less than half of the ‘working days’ in that month, the teacher would be entitled to payment only for each of the individual days worked (or one two-hundredths of his or her salary for each day).”

In Denise Zaccaro case there were 15 total working days in the month of April, 2009.  There were six working days prior to spring recess: April 1-8; and nine working days following spring recess: April 20-30.  Accordingly, all teachers were required to render service to the district on each of those 15 working days during the month of April. Zaccaro, however, was on paid leave through April 8, 2009. Thus, said the Commissioner, she must be deemed to have worked the six working days included in that period. 

Applying Swaim, the Commissioner said that as Zaccaro had worked only six of the required 15 working days in April 2009 and, because she worked less than half the working days in the month of April, she was entitled to one two-hundredths of her salary for each “day worked.” 

As during the period of April 9-17, the spring recess, no other teacher was required to render service, yet received compensation, and the school district would not receive any more service from Zaccaro than from any other teacher, under the rationale of these prior decisions, which clearly resulted in teachers being compensated for days in which school was not in session, the days of spring recess should be counted as days worked, under ordinary circumstances.

Zaccaro case, however, is somewhat more complicated. 

Although it is undisputed that at some point, either immediately after April 8, 2009 or effective April 15, 2009, the school district placed Zaccaro on unpaid leave, a pending grievance proceeding alleges that the school district violated the collective bargaining agreement when it placed her on unpaid leave effective April 15, 2009. 

The bottom line: Any day on which Zaccaro was not on unpaid leave during the period from April 9 to April 17, she was entitled to one two-hundredth of her salary.  

1. If such unpaid leave commenced on April 15, 2009, as Zaccaro contends, she would be entitled to four days compensation from April 9 to April 14; or

2. If, Zaccaro was placed on unpaid leave effective April 8, as the school district claims, Zaccaro would not be entitled to any additional compensation "unless the unpaid leave was set aside in the grievance proceeding or otherwise."  

Finding that record was not adequate to make such determination, the Commissioner remanded the matter to school district to determine if Zaccaro is entitled to additional compensation and directed the school district “to the extent they have not already done so,” one two-hundredth of her salary for any day during the period of April 9-17, 2009 on which she was determined to be entitled to paid leave.
* In this appeal the Commissioner was asked to determine if a teacher, Denise Zaccaro, was entitled to be paid for seven days during spring recess.

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume51/d16336.html


Monday, March 26, 2012

Employee terminated after failing to establish and maintain a domicile in the jurisdiction as required the Town’s Code

Employee terminated after failing to establish and maintain a domicile in the jurisdiction as required the Town’s Code
Peck v Town Bd. of Town of Amherst, 2012 NY Slip Op 02220, Appellate Division, Fourth Department

When the Town Board of Town of Amherst (Board) terminated James D. Peck’s employment with the Town because he failed to satisfy the residency requirements set out in the Town’s Code,* he filed an Article 78 challenging the Town's action.

Supreme Court dismissed certain allegations advanced by Peck but held his allegations that the Board's determination was arbitrary and capricious and that the Board failed to make findings of fact in support of its determination in abeyance, remitting the matter to the Board "for a fuller explication of its rationale for determining that [Peck]" failed to satisfy the residency requirements.

Although the Town invited Peck to appear before the Board and present evidence of his being domiciled within the Town, neither he nor his attorney appeared at that meeting. Peck’s attorney, however, subsequently submitted documentary evidence that allegedly established Peck’s domicile in the Town.

Upon receipt of the amplified findings of fact made by the Board, Supreme Court dismissed these remaining causes of action, determining that the Board's determination resulting in Peck's termination was neither  arbitrary nor capricious.

Peck’s appealed, contending that Supreme Court erred in remitting the matter to the Board for further findings of fact. The Appellate Division dismissed this argument, noting that he was not prejudiced by the remittal inasmuch as, in doing so, Supreme Court effectively extended the date for him to establish a domicile in the Town and that the remittal also afforded him another opportunity to answer questions from the Board concerning his claim that he was domiciled within the Town and to submit additional evidence in support of that claim.

As to domicile, the Appellate Division explained that:

[1] ”An existing domicile, whether of origin or selection, continues until a new one is acquired, and a party, [such] as [Peck] here, alleging a change in domicile has the burden to prove the change by clear and convincing evidence;" and

[2] "For a change to a new domicile to be effected, there must be a union of residence in fact and an absolute and fixed intention' to abandon the former and make the new locality a fixed and permanent home."

Peck, said the court, “was not domiciled in the Town when he was hired, nor was he domiciled there for at least two years after that time.”

Although the Town granted Peck two six-month extensions to meet the residency requirements, it denied his requests for further extensions, indicating that it intended to enforce the residency requirements against him. Peck then claimed that he had established domicile by renting a room in a house located within the Town despite his earlier acknowledging that renting "that room would not satisfy the Town's residency requirements."

Notwithstanding Peck’s claim that he thereafter informed the Town that he was "losing" his home in Buffalo to creditors and thus demonstrated that he intended to make the single room that he rented in a house in the Town his domicile, the Appellate Division said that “There is no evidence in the record” supporting such an allegation.

Further, said the court, “the mere fact that [Peck] may have been losing his home in Buffalo did not standing alone establish that his domicile was in the Town” and affirmed Supreme Court’s dismissal of Peck’s Article 78 petition.

* The relevant provisions of the Town Code provide: § 45-3, "any person who enters Town service . . . shall be a resident of the Town on the date that the employee enters Town service and shall thereafter maintain residence in the Town as a condition of employment . . . Failure to establish or maintain Town residence as required by this section shall constitute a forfeiture of employment . . . ." The Code defines "[r]esidence" as "[d]omicile" and "[r]esident" as "[d]omiciliary" (§ 45-2).

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02220.htm

The five most visited NYPPL postings during the week ending March 25, 2012

The five most visited NYPPL postings during the week ending March 25, 2012

Employee's inability to provide the necessary urine sample for a drug test because of a medical condition trumps allegations of misconduct

Town Law’s shorter statute of limitation to bring an Article 78 action challenging an adverse disciplinary determination trumps longer Civil Service Law’s statute of limitations

Return to work evaluations and Civil Service Law Section 72 Due Process procedures

Essentials of the "Pickering Balancing Test”

Tier VI Retirement - Chapter 18 of the Laws of 2012



Taxpayer’s Guides to Audits by the State Comptroller

Source: office of the State Comptroller

As part of an ongoing effort to make government more transparent, accessible and accountable to New York, State Comptroller DiNapoli has created concise, easy–to–read summaries of each audit called Taxpayers’ Guides to Audits. 




One guide captioned "SGA," reports on audits of State departments and agencies, New York City agencies and Public Authorities.

A second, captioned "LG," sets out summaries of audits of local governments and school districts



NYPPL readers may access the Taxpayers’ Guides by clicking here.

Saturday, March 24, 2012

The State Comptroller's audit of the Bombay Fire Company prompts the filing of forgery and other charges against the Fire Company’s former President

The State Comptroller's audit of the Bombay Fire Company prompts the filing of forgery and other charges against the Fire Company’s former President
Source: Office of the State Comptroller

Former Bombay Fire Company president Bridget Martin was charged with forgery and offering a false instrument for filing by the New York State Police in Franklin County on March 22, 2012 in connection with an investigation by State Comptroller Thomas P. DiNapoli’s office which found that more than $67,000 in department funds were missing.

The Comptroller’s press release concerning the allegations filed against Ms. Martin is posted on the Internet at:

The Comptroller’s audit report of the Fire Company is posted on the Internet at:
http://www.osc.state.ny.us/localgov/audits/firedists/2011/bombay.pdf

Friday, March 23, 2012

A member of a board testifying at a Civil Service Law §75 disciplinary hearing should recuse himself or herself from considering and acting on the findings and recommendations of the hearing officer

A member of a board testifying at a Civil Service Law §75 disciplinary hearing should recuse himself or herself from considering and acting on the findings and recommendations of the hearing officer
Baker v Poughkeepsie City School Dist., 2012 NY Slip Op 02126, Court of Appeals

Must persons who have testified in a Civil Service Law §75 disciplinary hearing disqualify themselves from subsequently acting upon any of the charges related to that hearing?

In most instances, said the Court of Appeals, the answer is "yes," holding that when the testimony of the testifying witnesses concerning the charges levied pursuant to §75, rendered them personally involved in the disciplinary process, disqualification is necessary.

According to the decision, the Superintendent of Schools of the Poughkeepsie City School District preferred eight charges of "misconduct and/or incompetence" against Jeffrey Baker, the then Business Manager of the School District.

The Board of Education appointed a hearing officer to preside over the disciplinary action. Two Board members testified at the disciplinary hearing. The hearing officer reported to the Board his findings and recommended that Mr. Baker be found guilty of the eight charges and that his services be terminated.

The Board, including the two members that testified at the hearing, adopted the findings and recommendations, and terminated Mr. Baker's employment. Mr. Baker, challenging the Board's determination, filed a petition pursuant to CPLR Article 78.

The Appellate Division "grant[ed] [Mr. Baker’s] petition, annul[led] the determination, and remit[ted] the matter to the Board, excluding the members of the Board who testified at the disciplinary hearing, for a review of the findings and recommendations of the hearing officer." The School District appealed and the Court of Appeals affirmed the Appellate Division’s ruling.

The Court of Appeals explained that “Although ‘[i]nvolvement in the disciplinary process does not automatically require recusal,’ we recognize that individuals ‘who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of the hearing officer and from acting on the charges’"

Accordingly, said the court, it is appropriate for a witness testifies in the course of a disciplinary hearing concerning charges levied against an individual, to recuse himself or herself from reviewing the recommendations of the hearing officer and rendering a final determination [see Informal Opinions of the Attorney General, 99-21].

However, not all testimony will require disqualification with respect to reviewing the recommendation of the hearing officer and participating in the final decision making process. Such disqualification, said the court, is only required “where the testimony of the official directly supports or negates the establishment of the charges preferred.”

The court then noted an exception to this -- the “Rule of Necessity.” Such disqualification in a §75 proceeding is inappropriate where “such person is necessary to effectuate a decision.”*

In this instance the two witnesses were “extensively involved in the disciplinary process.”  As neither of their votes were needed to take disciplinary action, obviating the “Rule of Necessity, the Court of Appeals decided that the Appellate Division properly granted the petition, annulling the determination and remitting the matter to be decided without the testifying board members.

Justice Pigott, however, dissented from the majority opinion, noting that in his view the two members of the Board that testified “were not required to disqualify themselves from rendering a determination on the hearing officer's recommendation,”

Noting that “In response to the Appellate Division's directive that the matter be remitted for a decision without the participation of [the two board members that testified], the school board did that and voted to terminate Mr. Baker for cause. All our decision will mean is, notwithstanding the fact that Mr. Baker never challenged the testimony proffered against him, Mr. Baker will nonetheless recover back pay to which, by all accounts, he is not entitled.”

Justice Pigott said that “the majority's opinion today has consequences that extend beyond this case. There is nothing to prevent industrious attorneys for employer and employee alike from subpoenaing pertinent members of the governing boards to proffer testimony on matters tangential to the issues, thereby obtaining disqualification of members who they expect to vote counter to the interests of their clients, or at the very least, engaging in a contest of this nature, buying valuable back pay considerations as the matter is litigated - precisely what Civil Service Law §75 was designed to avoid” and would reverse the order of the Appellate Division.

* In most instances where a “single appointing authority” is a witness at the disciplinary action, he or she will designate another individual to review the hearing officer’s findings and recommendation and make the final determination as to the penalty to be imposed. Further, in some disciplinary procedures, such those set out in §3020-a of the Education Law, the “decision maker” is not the appointing authority and either the accused employee or the appointing authority may appeal the arbitrator’s determination and, or, the penalty imposed. 

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02126.htm

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1476 page e-book. For more information click on http://booklocker.com/books/5215.html
================================================
Electronic books [e-books] focusing on New York State and Municipal Public Personnel Law:

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1900+ page e-book. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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