Rules protect teachers from being deprived of seniority credit in a tenure area if they unwittingly accept, and serve in, out-of-area assignments

Rules protect teachers from being deprived of seniority credit in a tenure area if they unwittingly accept, and serve in, out-of-area assignments

Cronk v King, 2015 NY Slip Op 06396, Appellate Division, Third Department

In this Article 78 action, Supreme Court granted Jennifer Cronk’s petition to annul the determination of Commissioner of Education dismissing Cronk's appeal of a determination by the Valhalla Union Free School District terminating her employment based on its finding that she was "the least senior" teacher in her tenure area.

Cronk is a teacher certified to teach English to students in grades 7-12. In 2000, Valhalla appointed Cronk to a three-year probationary position in the English 7-12 tenure area and assigned her to teach computer applications courses. In 2003 Valhalla granted Cronk tenure in the English 7-12 tenure area. 

Valhalla abolished two positions in the English 7-12 tenure area at the end of the 2010-2011 academic year and determined that Cronk was the “least senior” teacher in the English 7-12 tenure area because she had earned no seniority for the purposes of layoff as she taught computer classes rather than English classes. Accordingly Valhalla terminated Cronk's employment and [presumably] placed her name on a preferred list.

Cronk appealed Valhalla’s decision to the Commissioner of Education arguing, among other things, that she should not have been terminated due to lack of seniority because, regardless of her specific teaching assignment, certain protections afforded to educators by 8 NYCRR subpart 30-1 of the Rules of the Board of Regents protected her seniority in the English 7-12 tenure area.

Ultimately, the Commissioner dismissed Cronk's appeal on the ground that she failed to join necessary parties. The Commissioner further stated that Cronk's appeal would, in any event, have been dismissed on the merits because he found that the “regulatory protections” Cronk relied upon were inapplicable.

Upon review, Supreme Court granted Cronk’s petition, annulled the Commissioner's determination and remitted the matter to Valhalla to determine whether Cronk's 11 years of accrued seniority entitle her to reinstatement. Valhalla appealed Supreme Court’s ruling but the Appellate Division sustained the lower court’s decision..

As to Valhalla’s argument that Supreme Court erred in its determination that the Commissioner improperly dismissed Cronk's appeal for failing to obtain "leave or direction" to join necessary parties, the Appellate Division said that after Cronk filed her original petition with the Commissioner, it became clear that the jobs of two other teachers who were not named as respondents could be affected if Cronk were reinstated.

Cronk then submitted a letter to the Commissioner that clearly requested permission to amend her petition for the express purpose of joining the two teachers as necessary parties and enclosed along with it a copy of the proposed pleading, with proof of service on all parties. Subsequently Cronk received a response from the State Education Department stating that "the amended petition has been accepted for consideration." In view of this, said the Appellate Division, the Commissioner's determination that Cronk “neither sought nor received permission to join any additional parties" lacks a rational basis and, thus, was properly annulled by Supreme Court.

As to Valhalla’s contention that Cronk failed to exhaust her administrative remedies before filing her CPLR Article 78 proceeding by not first petitioning the Commissioner to reopen her appeal based upon a mistake of fact as to whether she had sought permission to join necessary parties, the Appellate Division concluded that seeking to have the Commissioner reopen her appeal would have been futile inasmuch as the Commissioner held that her petition would have been dismissed on the merits even if it had not been dismissed for failure to join necessary parties.

Further, said the court, “Even if the Commissioner was operating under a misapprehension of the facts as to whether [Cronk] had sought and received permission to join necessary parties, neither party argues that his explanation as to why [Cronk’s] appeal would fail on the merits was subject to any such misapprehension.”

The Appellate Division then addressed “the merits,” and citing Education Law §3013[2], said that whenever a board of education abolishes a teaching position, "the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued." The Rules  define "[s]eniority" as an educator's "length of service in a designated tenure area [that] shall[,] during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator," a "substantial portion of . . . time" being defined as "40[%] or more of the total time spent by a professional educator in the performance of his [or her] duties, exclusive of time spent in preparation, monitoring or in co-curricular activities."

Cronk, said the court, conceded that although Valhalla awarded her tenure in the English 7-12 tenure area, she never spent 40% or more of her time teaching English classes. Rather she argued that her seniority was preserved by another of the Rules, 8 NYCRR 30-1.9[c], which states that "[n]o professional educator, whether on tenure or in probationary status, may be assigned to devote a substantial portion of his [or her] time in a tenure area other than that in which he [or she] has acquired tenure or is in probationary status, without his [or her] prior written consent."

The Appellate Division said that the evidence demonstrated that Cronk was a professional educator and Valhallaassigned her “exclusively to teach computer classes,” which the Valhalla admits was an assignment outside of her probationary and acquired English 7-12 tenure area. Significantly, the court said that the record was devoid of evidence that Cronk was aware that she was given an out-of-area assignment or that she consented to such an assignment in writing.

In contrast, the Commissioner determined that the protections of 8 NYCRR 30-1.9(c) did not apply to Cronk because, "[f]rom the inception of her employment[,] . . . petitioner never devoted a substantial portion of her time within the English 7-12 tenure area."

The Appellate Division said that “Even according deference to the Commissioner's construction and interpretation of the regulations, as we must," it could not agree that this interpretation is rational or reasonable,” explaining that “Nowhere in the language of 8 NYCRR 30-1.9 (c) is there a requirement that professional educators must first spend some of their time teaching within their probationary or acquired tenure areas before earning the right to consent to an out-of-area assignment.”

As the Commissioner's interpretation reads this nonexistent requirement into the provision, the Appellate Division said it viewed it as "an artificial or forced construction," Further, said the court, the Commissioner's interpretation “also runs contrary to the underlying purposes of the Rules governing teacher tenure and seniority credit,” citing the Court of Appeals' ruling in Kaufman v Fallsburg Cent. School Dist. Bd. of Educ., 91 NY2d 57. In Kaufman it was noted that 8 NYCRR former 30.9 (b) (now 8 NYCRR 30-1.9 [c]) "protects teachers from being deprived of credit in a previously appointed tenure area if they unwittingly accept, and serve in, out-of-area assignments."*

As the "twofold protective purpose" of 8 NYCRR 30-1.9 (c) is  [1] to protect teachers from unknowing, involuntary out-of-area assignments and [2] allowing for the accrual of seniority credit in their original tenure area if they should accept such an assignment  the Appellate Division held that these protections are defeated if the provision is construed in such a way as "to block a teacher from receiving seniority credit which, absent school district error, would have been received by reason of actual service in an out-of-tenure area." Accordingly, the Appellate Division concluded that the Commissioner's interpretation of 8 NYCRR 30-1.9(c) defeated these protections and ruled that Supreme Court properly annulled the Commissioner's confirmation of Cronk's termination.

As noted above, Supreme Court's order had remitted the matter to Valhalla to determine whether Cronk's 11 years of accrued seniority entitle her to reinstatement to her position, presumably with back salary and benefits. In Joan Carey v Rockville Centre CSD, Comm. of Ed. Decision 12,678, the Commissioner ruled that the teacher’s seniority had to be recalculated and if it was found that she was not the least senior teacher in the tenure area at the time of the layoff, she was to be reinstated with back salary and benefits.

* In Speichler v. Board of Co-op. Educational Services, 90 NY2d 110, the court held that Deer Park violated the educator’s rights “as established by the statutory scheme instituted in this State which, [educator] correctly notes, is to be read broadly in favor of the teacher.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06396.htm

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations and summarizing selected court and administrative decisions involving layoff issues. For more information click on http://nylayoff.blogspot.com/

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Summaries of recent decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings [OATH]

Summaries of recent decisions posted on the Internet by the New York CityOffice of Administrative Trials and Hearings [OATH]

Source: NYC Office of Administrative Trials and Hearings

Click on text highlighted in color to access the text of the decision.

Use of excessive force against a juvenile resident at a detention center

Administrative Law Judge [ALJ] Tynia D. Richard sustained charges that a counselor at a juvenile detention center used excessive force against a resident and made a false report.

A video showed the counselor initiate force against the resident who was not complying with commands but was not physically resisting. It also showed the counselor put the resident in a bear hug, push him over a group of chairs, and choke him; the same video later showed him chase the resident and throw him to the floor. Others had to intervene in both instances to get counselor away from the juvenile.

The director and the head of training testified these acts were serious violations of agency guidelines. The counselor’s report of the incident was false and misleading, having omitted material facts.

The ALJ recommended the counselor be terminated from his position.

The Commissioner adopted the ALJ’s factual findings but did not impose a penalty, as the counselor had resigned from his position with Children’s Services.*   Admin. For Children Services v. Silva, OATH Index No. 1275/15.

Failure to report to work as scheduled  

A corrections captain was charged with filing an untimely report and with being AWOL for 5 days. ALJ Alessandra F. Zorgniotti sustained the charges.

The captain had hurt his back while on vacation and converted his vacation days to sick days. While still on vacation, he requested that his vacation be extended by the number of days he was on sick leave. The captain did not report to work as scheduled and failed to verify whether his request to extend his vacation had been granted.

ALJ Alessandra F. Zorgniotti recommended 20-day suspension for the AWOL charges and a reprimand for submitting a late report.  Dep't of Correction v. Ramos, OATH Index No. 1903/15.

Testing positive for cocaine

A sanitation worker admitted that he had tested positive for cocaine and offered evidence in mitigation, including character evidence from supervisors. ALJ Kevin F. Casey recommended termination of employment, but urged the Department to consider alternative penalties such as drug and alcohol testing for the remainder of the worker's career.   Dep't of Sanitation v. Anonymous, OATH Index No. 1821/15.

Failure to meet deadlines

In a Loft Board proceeding, ALJ John B. Spooner formally admonished an attorney who failed to meet ordered deadlines and refused to reply to repeated discovery requests. The attorney did not receive a more severe sanction because he ultimately complied with requests and conducted himself professionally at trial.  Matter of Stone, OATH Index No. 1945/14.

* With respect to the State as the employer, 4 NYCRR 5.3(b), in pertinent part, provides “… when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.”

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A Reasonable Penalty Under The Circumstances - a 618-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service. For more information click on http://nypplarchives.blogspot.com/

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An attorney representing an individual in an administrative hearing may be disqualified where such representation could result in an actual or apparent “conflict of interest”

An attorney representing an individual in an administrative hearing may be disqualified where such representation could result in an actual or apparent “conflict of interest”

Tartakoff v New York State Educ. Dept., 2015 NY Slip Op 06276, Appellate Division, Third Department

One of the issues raised by Raymond Tartakoff in his appeal of an adverse decision following an administrative hearing before the State Department of Education’s Office of Professional Discipline [OPD] was the disqualification of his attorney from representing him in the hearing.

Tartakoff contended that he did not receive a fair hearing because his chosen counsel was disqualified. The Appellate Division disagreed, noting that Tartakoff had retained the attorney who was already representing another individual, JC, in a separate civil rights action against her employer in federal court.

The court explained that to represent Tartakoff, the attorney would have had to effectively cross-examine JC, who was a key witness in OPD's case against Tartakoff. . The attorney’s simultaneous representation of JC in a pending federal action potentially gave him access to information not otherwise available for use on cross-examination. Further, said the court, in the Tartakoff proceeding the attorney would be attempting to diminish JC’s credibility, whereas an opposite result would be pursued in the federal action. There, ruled the Appellate Division, was a sufficient conflict of interest to justify disqualifying Tartakoff’s attorney in the administrative proceeding.

In the words of the court, "When the representation is simultaneous, the burden shifts to the attorney to demonstrate that no actual or apparent conflict in loyalties exists" and any  "[D]oubts as to the existence of a conflict of interest must be resolved in favor of disqualification."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06276.htm

The custodian of a public record must articulate particularized and specific justification for denying access to a record requested pursuant to the Freedom of Information Law

The custodian of a public record must articulate particularized and specific justification for denying access to a record requested pursuant to the Freedom of Information Law

Villalobos v New York City Fire Dept., 2015 NY Slip Op 06249, Appellate Division, Second Department

Amaury Villalobos filed a Freedom of Information Law [FOIL] request seeking certain documents in the custody of the New York City Fire Department. Among the material demanded by Villalobos were documents containing the residence address of certain individuals. After an in camera review of the documents demanded, Supreme Court directed the New York City Fire Department to provide Villalobos with “legible unredacted copies of all documents inspected by the court in camera” which would documents would then include the residence address of the individuals.

The Fire Department appealed the Supreme Court ruling and the Appellate Division deleted that portion of Supreme Court’s order that, in effect, directed the Department to provide the Villalobos with residence addresses contained in the documents inspected by the court in camera.

The Appellate Division explained that under FOIL, government records are "presumptively open" for public inspection and copying, unless they fall within an enumerated statutory exemption* set out in Public Officers Law §87(2). However, said the court, “exemptions are to be ‘narrowly construed’ so as to ensure maximum public access … and the burden rests on the agency to demonstrate that the requested material in fact qualifies for exemption.” To meet this burden, said the court, the agency must "articulate particularized and specific justification" for the nondisclosure at issue.”

In this instance the Appellate Division concluded that the Fire Department “failed to articulate a particularized and specific justification for any of the redacted information at issue, except for the residence addresses contained in the subject documents.” The court opined that the Department’s “conclusory assertions” that the redacted information, other than residence addresses, fell within a statutory exemption were insufficient to meet its burden of demonstrating that the requested information was exempt from disclosure.

As to the disclosure of the residence addresses contained in the documents, the court ruled that such disclosure “would constitute an unwarranted invasion of personal privacy … since, under the circumstances of this case, the privacy interests at stake outweigh the public interest in disclosure of that information.

Accordingly, the Appellate Division modified the Supreme Court’s judgment so as to permit redaction of the residence addresses contained in the documents at issue.

* The release of some public records is limited by a statute such as Education Law, §1127 - Confidentiality of records or §33.13, Mental Hygiene Law - Clinical records; confidentiality. However, it should also be noted that there is no statutory bar to the custodian of the public record providing documents pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06249.htm

Parties may negotiate pre-disciplinary suspension procedures in the course of collective bargaining

Parties may negotiate pre-disciplinary suspension procedures in the course of collective bargaining
Transport Workers Union of Greater N.Y. v Bianco, 2015 NY Slip Op 06041, Appellate Division, First Department

The Appellate Division said Supreme Court properly dismissed the Transport Workers Union's complaint alleging that the collective bargaining agreement provision setting forth procedures for pre-disciplinary suspensions was void under Civil Service Law §75.

The court said that "Rights under Civil Service Law §75 may be supplemented, modified or replaced by the terms of a collective bargaining agreement," which is the case here with respect to disciplinary grievance procedures set forth under the Civil Service Law, “including those concerning pre-disciplinary suspensions.”

§76.4 of the Civil Service Law, in pertinent part, provides that §§75 and 76 of the Civil Service Law relating to the removal or suspension of “officers or employees in the competitive class of the civil service of thestate or any civil  division” may be supplemented,   modified or replaced by agreements negotiated between the state and an employee organization  pursuant  to  Article 15 of the Civil Service Law.

In Antinore v State, 40 NY2d 6, the Court said that a union could bargain away a collective bargaining unit member’s statutory disciplinary rights in favor of an alternative disciplinary procedure as long as the alternate procedure provided constitutional due process protections equivalent to those available under the statutory procedure that it replaced.

The Transport Workers Union v Bianco decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06041.htm

The Antinore decision is posted on the Internet at:

http://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19750718_0043291.NY.htm/qx

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending July 26, 2015

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending July 26, 2015

[Click on text highlighted in colorto access the full report]

Audits of the following jurisdictions completed:

City of Johnstown;

http://www.osc.state.ny.us/localgov/audits/cities/2015/johnstown.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215brelease

North Patchogue Fire District

http://www.osc.state.ny.us/localgov/audits/firedists/2015/northpatchogue.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215brelease

Town of Rosendale

http://www.osc.state.ny.us/localgov/audits/towns/2015/rosendale.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215brelease

Town of West Seneca

http://www.osc.state.ny.us/localgov/audits/towns/2015/westseneca.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215brelease

Amani Public Charter School

http://www.osc.state.ny.us/localgov/audits/schools/2015/amanicharter.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215crelease

Holland Central School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/holland.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215crelease

Mount Pleasant Central School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/mountpleasant.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215creleaseand the

Onteora Central School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/onteora.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215crelease

Comptroller finds persistent problems at the Long Island Power Authority

New York State Comptroller Thomas P. DiNapoli recommended improvement of oversight of the Long Island Power Authority (LIPA) after a report by his office found that previous reforms have not reduced costs for ratepayers and debt levels continue to rise. http://www.osc.state.ny.us/press/releases/july15/072415.htm?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072415release

Comptroller DiNapoli expects the “Tax Cap” will drop below 1% in 2016

Property tax growth for local governments will be capped at less than one percent for the 2016 fiscal year, according to a report issued by State Comptroller Thomas P. DiNapoli. The report noted the allowable tax levy growth factor will be 0.73 percent for entities that operate on a calendar-based fiscal year – which includes all counties, towns, fire districts, 44 cities and 10 villages.

http://www.osc.state.ny.us/press/releases/july15/072015.htm?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072015release

Former Fire District Treasurer sentenced after being found guilty of theft of district funds

Lisa Stone, the former treasurer of Pulteney Fire District No. 2 was sentenced to five years probation and ordered to pay full restitution for stealing more than $6,800 in fire district funds, after an audit and investigation by State Comptroller Thomas P. DiNapoli revealed that she paid herself an illegal second salary.

http://www.osc.state.ny.us/press/releases/july15/072315.htm?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072315release

Employer must permit employee to attempt to cure any defects in his or her Family Medical Leave Act request before denying it

Employer must permit employee to attempt to cure any defects in his or her Family Medical Leave Act request before denying it

Hansler v Lehigh Valley Hospital Network, USCA, 3^rd Circuit, Docket #14-1772

Deborah Hansler requested intermittent leave from her former employer, Lehigh Valley Health Network (“Lehigh Valley”), under the Family Medical Leave Act of 1993 (“FMLA”, 29 U.S.C. § 2601 et seq.

Hansler submitted a medical certification requesting leave for two days a week for approximately one month. Her complaint alleged that the medical certification refers to the length of her requested leave but not the nature or duration of her condition.

A few weeks later, after she had be absent from work for several days, Lehigh Valley, citing “excessive absences,” told Hansler that her request for leave had been denied and terminated her employment. The Circuit Court of Appeals noted that in so doing, Lehigh Valleydid not seek any clarification with respect to Hansler’s medical certification as required by law.

Hansler sued but the federal district court dismissed her complaint on the basis that the medical certification supporting Hansler’s request for leave was “invalid.” In contrast, the Circuit Court concluded that “in failing to afford Hansler a chance to cure any deficiencies in her medical certification, Lehigh Valley violated the Medical Leave Act.”

Reversing the district court, the Circuit Court remanded the matter to the district court “for further proceedings.”

The decision is posted on the Internet at:

http://www.ca3.uscourts.gov/search-opinions

Failure to exhaust administrative remedies and other procedural error result in dismissal of the employee’s efforts to have courts adjudicate her claims

Failure to exhaust administrative remedies and other procedural error result in dismissal of the employee’s efforts to have courts adjudicate her claims

2015 NY Slip Op 05779, Appellate Division, First Department

The Appellate Division said that Supreme Court correctly dismissed the complaint filed by an employee [Grievant] against New York City Department of Education (DOE), because Grievant had failed to exhaust the administrative remedies set forth in the relevant collective bargaining agreement.

Grievant, said the court, was not excused from exhausting her administrative remedies by simply alleging that her collective bargaining representative [Union] had mishandled her grievance, because she could have instituted the grievance procedure herself but failed to so.. Further, explained the Appellate Division, “This is not a case where the Unionhad sole, exclusive authority over the grievance process.*

In addition, the court noted that the City of New Yorkis not a proper party to this action, as it cannot be held liable for the Grievant’s employer, the New York City Department of Education.

As to Grievant’s claim against the Union  was not brought within the applicable four-month statute of limitations. as the statute of limitations was not tolled for the purposes of the CPLR because Grievant’s initial federal action, which was dismissed for lack of subject matter jurisdiction, was, itself, untimely. In addition, the Appellate Division said that Grievant “was not entitled to the 30-day toll [of the statute of limitations] created by the application of Education Law §3813(1) and CPLR §204(a) because the union is not an entity covered by Education Law §3813(1).”

*Typically a union has “exclusive authority” with respect to demanding arbitration of an alleged violation of a term or condition of employment set out in a collective bargaining agreement.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05779.htm

Town’s misplaced trust in its Town Clerk enabled her to steal Town's funds, and again steal its monies following the initial discovery of her theft by the State Comptroller

Town’s misplaced trust in its Town Clerk enabled her to steal Town's funds, and again steal its monies following the initial discovery of her theft by the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the guilty plea of former Town of Bennington Town Clerk Tina Metz in a string of thefts from the Town that intensified even after DiNapoli’s office uncovered her criminal behavior.

On July 22, 2015 Metz pleaded guilty in Wyoming County Court to charges grand larceny in the third degree, a class D felony; offering a false instrument for filing in the first degree; and official misconduct. She was ordered to pay restitution of $33,189 for the money she stole from  fees and tax payments paid to the Town. If Metz fails to make restitution, she faces a prison sentence of 3 2/3 to 11 years.

 
Department of Audit and Control auditors and investigators initially, discovered a $14,000 shortage for 2013 and notified the Town, while continuing to work with the Wyoming County District Attorney and Sheriff’s Department. Metz repaid the town $12,000 in cash, claiming she found it at her home and in a filing cabinet at work. Subsequent investigation revealed that Metz continued to steal even after the Comptroller alerted the Town.

“The town’s misplaced trust in this clerk enabled her to steal and steal again,” DiNapoli said.  “Blind trust in a colleague doesn’t pass for proper oversight in public finance. The Comptroller thanked Wyoming County District Attorney Donald O’Geen and the Wyoming County Sheriff’s Department for partnering with the Department of Audit and Control to hold Ms. Metz accountable for her crimes.”

Town officials agreed to DiNapoli’s audit recommendations, including the timely deposit of all fees collected and monthly bank reconciliations.

Allegations of fraud involving taxpayer money may be reported by calling the Comptroller's toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

Read the Town of Bennington [NY] audit report here:

http://osc.state.ny.us/localgov/audits/towns/2014/bennington.pdf

The employee must be a member of the collective bargaining unit represented by the union in order for the union to file a contract grievance on his or her behalf

The employee must be a member of the collective bargaining unit represented by the union in order for the union to file a contract grievance on his or her behalf

New York City Transit Auth. v Transport Workers Union of Greater N.Y. Local 100, 2015 NY Slip Op 06042, Appellate Division, First Department

The Transport Workers Union of Greater New York Local 100 [TWU] filed a contract interpretation grievance against the New York City Transit Authority [TA]. TWU contended that under the terms of an article, Article §5.2(j), set out in the relevant  collective bargaining agreement [CBA], certain bus maintenance employees who had trained in TWU’s Divisional area in Brooklyn and who were, following training, initially assigned to Staten Island despite their preference for an initial assignment location in Brooklyn because no other positions were available in Brooklyn at that time, were entitled to "transfer" back to Brooklyn when a new class of such employees graduated from training.

When TA denied the grievance, TWU scheduled arbitration. TA brought an Article 75 proceeding seeking a permanent stay of the arbitration. Supreme Court granted TA’s motion to permanently stay arbitration. TWU appealed but the Appellate Division unanimously affirmed the Supreme Court’s ruling.

The Appellate Division explained that TWU lacked standing to bring the grievance as it did not represent bus maintenance employees working in Staten Island. Rather, said the court, Staten Island employees were represented by Amalgamated Transit Union Local 726 [ATU]. Accordingly, the employees on whose behalf TWU had filed the grievance were not represented by TWU and TWU could not bring "contract interpretation grievance" involving §5.2(j)  of the CBA on their behalf.

Further, said the Appellate Division, the provision in the CBA relied on by TWU, §5.2(j),  applies to employees who were transferred out of its Division due to a lack of work in their title in the Brooklyn Division. Here, however, the individuals on whose behalf TWU had grieved “were not transferred out” of Brooklyn due to a lack of work. Rather these individuals were initially assigned to Staten Island upon completion of their training, which training had been given Brooklyn.

The court said that the fact that these trainees had a exercised a Brooklyn "school pick" for such training did not trigger the provisions of Article §5.2(j), as those individuals were not “employed in their title in Brooklyn.” In the words of the Appellate Division there was “no reasonable relation between the subject matter of the dispute and §5.2(j).

Finally, the Appellate Division commented that TWU's grievance appears to be, in fact, an attempt to enforce a provision of the ATU CBA, on behalf of ATU members, which violates public policy, explaining that so doing risks generating an inconsistent result with a settlement of a similar contract interpretation grievance brought by ATU, on behalf of the ATU members and under the ATU CBA.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06042.htm

Showing that an Article 78 proceeding was initiated after the statute of limitations had expired is the burden of the party making the claim of untimeliness

Showing that an Article 78 proceeding was initiated after the statute of limitations had expired is the burden of the party making the claim of untimeliness

2015 NY Slip Op 05998, Appellate Division, Third Department

The petitioner in this Article 78 proceeding [Spouse] was married to the retiree [Decedent] at the time of his death on January 11, 2011. In March 2011 the NYS Employees’ Retirement System [System] paid Decedent's ordinary death benefits to his son and his former spouse in accordance with the beneficiary designations reportedly filed by decedent.

In response to Spouse’s inquiry, the System advised her by letter dated June 12, 2013 that Decedent's death benefits had been paid out to the named beneficiaries. Spouse then commenced an action for declaratory against the System contending that she was entitled to "a portion" of Decedent's death benefits. Ultimately Supreme Court concluded that Spouse's challenge to the payment of death benefits should have been brought in a CPLR Article 78 proceeding and, after converting the action to a proceeding, dismissed the petition as untimely. Spouse appealed.

The Appellate Division, pointing out that the System "has the exclusive authority to determine the validity of beneficiary designations," said "A determination generally becomes binding when the aggrieved party is “notified” and the burden is on the party asserting the statute of limitations defense to establish that the petitioner "was provided notice of the determination more than four months before the proceeding was commenced."

In this action Spouse alleged that she was not notified when the death benefits were paid out to the beneficiaries and, in their motion to dismiss, the System failed to submit any proof that Spouse was notified or otherwise aware of the disbursement of such funds prior to June 2013.

In response to the Systems request that the Appellate Division take judicial notice of the materials appended to its brief, the court said that:

1. Most of these documents in the record on appeal were available to the System but were not submitted to Supreme Court with its motion to dismiss, and

2. These documents do not conclusively establish that [Spouse] received notice.

The Appellate Division found that “on the present record” the System failed to establish that Spouse’s action was untimely.

Considering another aspect of this litigation, the Appellate Division said that as Spouse was seeking a portion of Decedent's death benefits that were paid to the beneficiaries, those beneficiaries are necessary parties to this proceeding as their interests may be inequitably or adversely affected should Spouse prevail.

While not raised by the parties in this action, the Appellate Division commented that “the absence of a necessary party may be raised at any stage of the proceedings, by any party or by the court on its own motion."

Accordingly, the court said that the matter must be remitted to Supreme Court to order the beneficiaries to be joined if they are subject to the jurisdiction of the court or, if not, to permit their joinder by motion, stipulation or otherwise. If such joinder cannot be effectuated, “Supreme Court must then determine whether this proceeding should be permitted to go forward in the absence of these necessary parties.”

The Appellate Division reversed Supreme Court’s decision, on the law, and “remitted [the matter] to the Supreme Court for further proceedings not inconsistent with this Court's decision.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05998.htm

Pennsylvania police department is first in the state authorized to use unmanned aerial vehicles

Pennsylvania police department is first in the state authorized to use unmanned aerial vehicles

Source: AOPA’s Aviation e-Briefs

The Mount Carmel Township Police Department is the first in the state authorized by the Federal Aviation Administration to use unmanned aerial vehicles [UAV] to help during emergencies and investigations. Three officers have been trained to fly or observe the UAV, which will be used in search and rescue operations as well as general patrols.

Additional information posted on the Internet at: http://newsitem.com/news/local-police-first-in-pa-licensed-to-deploy-drone-1.1914065

Terminated probationer failed to establish any basis to go forward with her judicial challenged to her dismissal

Terminated probationer failed to establish any basis to go forward with her judicial challenged to her dismissal

128 AD3d 617

The Appellate Division sustained Supreme Court’s dismissal of a probationary teacher’s [Probationer] challenge to her termination from her position.

The court said that Supreme Court had “providently exercised its discretion” under the “interests of justice standard” in denying Probationer’s request for an extension of time to serve the petition and amended petition personally upon the employers because:

1. Probationer did not seek an extension of time until after the expiration of the four-month statute of limitations;

2. Probationer failed to provide an excuse for the delay or for failing to timely serve the employer;

3. Probationer’s pro se* status is not a reasonable excuse for such failure; and

4. Probationer’s failed to show that the termination of her probationary employment was made in bad faith or in violation of the law.

The Appellate Division said evidence in the record showed that Probationer received two unsatisfactory ratings following classroom observations despite mentoring and coaching throughout the school year and despite a post-observation conference advising her of her teaching deficiencies.

* In the event an individual represents himself or herself in a judicial or quasi-judicial proceeding, he or she is said to be serving “pro se.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04568.htm

Governor Cuomo Announces New Administration Appointments

Governor Cuomo Announces Administration Appointments 
Source: Office of the Governor

On July 20, 2015 Governor Andrew M. Cuomo announced the following seven appointments to his administration.

 

Paul Francis has been appointed Deputy Secretary for Health and Human Services. Previously, Mr. Francis served under Governor Cuomo as the Director of Agency Redesign. He has also previously served in New York State government as the Director of the Budget and the Director of State Operations. His business career includes serving as the Chief Financial Officer of Ann Taylor Stores Corporation and Priceline.com, as well as the Chief Operating Officer of the Financial Product Division of Bloomberg LP. Mr. Francis has served on the board of trustees of numerous organizations, including as the Chairman of the New York State Health Foundation prior to rejoining the Cuomo administration. Mr. Francis holds a J.D. from New York University and a B.A. from Yale University.

Kerri O'Brien has been appointed Chief Executive Officer for the State Liquor Authority. Ms. O'Brien has over 33 years of experience at the New York State Division of Alcoholic Beverage Control, most recently serving as the Deputy Commissioner of Licensing, where she helped reduce license application review times by 50 percent. Additionally, Ms. O'Brien has participated in panels to improve the State Liquor Authority's license application process, as well as helping to draft legislation and State Liquor Authority Board advisories—which resulted in the number of liquor manufacturers in the state more than doubling.

Greg Francis has been appointed Chief Investment Officer of The New York State Insurance Fund. Mr. Francis comes from an extensive background in financial management, most recently serving as the Head of Fixed Income Portfolio Management for Santa Clara County in California. Previously, he served at GE Capital as the Head of Fixed Income and Derivatives Portfolio Management, at Fortis Bank as the Senior Fixed Income and Derivatives Portfolio Manager, and at Capital One Asset Management as the Co-Head of Fixed Income Portfolio Management, among others. In these roles, he oversaw portfolios totaling billions of dollars while designing and supervising investment strategies. Mr. Francis holds a B.Sc. from the Columbia University School of Engineering.

Susan G. Rosenthal has been appointed General Counsel of the Roosevelt Island Operating Corporation. Ms. Rosenthal previously served as General Counsel for the New York State Department of Agriculture and Markets, and prior was Partner at Sheppard Mullin Richter & Hampton, LLP, among other private law practices. She has decades of experience as a litigator of commercial and corporate law disputes and as a mediator and arbitrator for the United States District Courts of the Southern and Eastern Districts. She holds a J.D. from New York University School of Law and B.A. from SUNY Binghamton, Harpur College.

Manuel Rosa has been appointed the Director of Community Relations for Faith-Based Groups at New York State Homes and Community Renewal. Mr. Rosa previously served as Assistant Director for the Promesa Community Residence Program, where he was responsible for gathering and creating supportive housing for individuals diagnosed with persistent mental illness and substance abuse addictions. Prior, he was Assistant Vice President of the NYC Health & Hospitals Corporation, where he managed the office's intergovernmental and external relations, as well as the Director for the New York State Department of Health's Office of Minority Health. Mr. Rosa is also currently an Adjunct Professor of Urban Studies at CUNY's Queens College and holds a B.S. from Colby College.

Natacha Carbajal has been appointed Special Counsel to the Commissioner for Ethics, Risk and Compliance for the Department of Labor. Ms. Carbajal was most recently a senior associate at Baker & Hostetler LLP, having previously served as a Judicial Law Clerk for the United States Bankruptcy Courts of the Southern and Eastern Districts of New York. She is a member of the American Bar Association, Association of the Bar of the City of New York, and the Hispanic National Bar Association. Ms. Carbajal holds a J.D. from Fordham University and a B.S. from Cornell University.

Carey Merrill has been appointed Special Counsel to the Chief Information Officer for Ethics, Risk and Compliance in the Office of Information Technology Services. Most recently, Ms. Merrill served as Counsel to Professional Risk, Cyber and Surety underwriters at ACE North America. Prior, she served as a Senior Claims Specialist at ACE, a Trial Attorney at the Military Personnel Litigation Division and Employment Litigation Division, and in various other roles within the United States Air Force. Ms. Merrill holds a J.D. from George Washington University and a B.A. from Ithaca College.

Town tax collector admits she falsified her personal tax payments

Town tax collector admits she falsified her personal tax payments

Source: Office of the State Comptroller

An audit and investigation by State Comptroller Thomas P. DiNapoli’s staff led to the July 20, 2015arrest of the Town of DePeyster's Town Clerk and Tax Collector Michelle Sheppard. The Comptroller reported that Sheppard admitted she falsified her personal town and county tax payments of $4,303 and that she has been charged with nine counts of tampering with public records in the first degree, a Class D felony, and official misconduct, a misdemeanor, for crimes dating back to 2011.

As the Town’s tax collector, Sheppard was responsible for recording, depositing, remitting and reporting all real property tax moneys collected in a timely and accurate manner. Her actions were uncovered during an audit and investigation by the Comptroller’s staff. The auditors noticed discrepancies in the Town's books and obtained a confession from Sheppard. Comptroller DiNapoli indicated that the audit of DePeyster’s Town Clerk and tax collection has not yet been completed and Sheppard has since repaid the bulk of her delinquent tax bills.

DiNapoli’s audits and investigations have led to more than 90 arrests and $18 million in ordered restitution since 2011. Since taking office in 2007, DiNapoli has been committed to fighting public corruption and encourages the public to help fight fraud and abuse.  Allegations of fraud involving taxpayer money may be reported by calling the Comptroller's toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

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The Discipline Book - The 2015 edition of this concise guide to disciplinary actions involving public officers and employees in New York State is now available in both a printed edition and in an electronic [e-book] edition. For more information click on http://booklocker.com/books/5215.html 

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Determining if an alleged violation of a collective bargaining agreement may be submitted to arbitration

Determining if an alleged violation of a collective bargaining agreement may be submitted to arbitration

Matter of Board of Educ. of the Catskill Cent. Sch. Dist. (Catskill Teachers Assn.), 2015 NY Slip Op 06190, Appellate Division, Third Department

The Board of Education of the Catskill Central School District [Board] and the Catskill Teachers Association [Association] were parties to a collective bargaining agreement [CBA] that was in effect during the relevant time period.

The Board filed grant applications with the State Education Department seeking funding for a universal prekindergarten program pursuant to Education Law §3602-e. In anticipation of the award of funds, the Board entered into a contract with a private sector instruction provider to retain the services of a prekindergarten teacher. The Association submitted a grievance alleging that the Board had violated the terms of the CBA by failing to “post the position” and appointing an individual “who was not a member” of the Association without its consent. The Board denied the grievance and the Association demanded that the matter be submitted to arbitration.

The Board filed an application with Supreme Court pursuant to CPLR Article 75 seeking a court order staying the arbitration. The Association, in response, filed a motion to compel arbitration. Supreme Court, finding the dispute was subject to arbitration, granted the Association’s motion. The Board appealed Supreme Court’s ruling, contending that arbitration of the subject matter of the dispute is barred by Education Law §3602-e and public policy.

The Appellate Division commenced its review of the Board’s appeal by noting that determining whether the subject matter of a dispute is arbitrable involves a two-step inquiry. The first test is “whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance.” If no such prohibition is found, does it meet a second test: “whether the parties agreed to submit the subject matter of the dispute to arbitration.”

The court noted that "[I]n order to overcome the strong [s]tate policy favoring the bargaining of terms and conditions of employment, any implied intention that there not be mandatory negotiation must be plain and clear or inescapably implicit in the statute."

Rejecting the Board’s contention to the contrary, the Appellate Division said that language set out in §3602-e does not suggest a legislative intent “that school districts be given wholly unfettered freedom to disavow existing, bargained-for contractual agreements for the purpose of entering into contracts with outside agencies for prekindergarten instructional services.” A more natural reading of §3602-e, said the court, supports a finding that the statute permits school districts to enter into such contracts, without in any way necessarily affecting the enforceability of a bargained-for agreement to secure such services through a CBA nor did the Appellate Division find that there was any intention by the Legislature to "prohibit, in an absolute sense" the arbitrability of the subject matter of the Association’s grievance.

Having found that there was no statutory, constitutional or public policy prohibition to submitting the Association’s grievance to arbitration, the Appellate Division addressed the second test: did the parties agreed to submit the subject matter of the dispute to arbitration.

The court found that the both Association’s grievance and the CBA concern the procedures that the Board must follow in hiring new employees, as well as the terms and conditions of employment. Noting that the Board contended that the absence of any specific reference to prekindergarten teachers in the CBA indicating that the parties did intend to bind themselves to arbitration on this subject, the Appellate Division ruled that "[t]he question of the scope of the substantive provisions of the contract is itself a matter of contract interpretation and application, and hence it must be deemed a matter for resolution by the arbitrator."

Finding “a reasonable relationship” between the subject matter of the CBA and the dispute at issue, the Appellate Division sustained the Supreme Court’s ruling requiring the dispute to be submitted to arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06190.htm