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Friday, December 30, 2016

The Commissioner of Education will dismiss an application or appeal involving an officer and, or, a member of the staff of a school district for improper service of the complaint and, or, lack of subject matter jurisdiction.


The Commissioner of Education will dismiss an application or appeal involving an officer and, or, a member of the staff of a school district for improper service of the complaint and, or, lack of subject matter jurisdiction 
Decisions of the Commissioner of Education, Decision #17,002

Addressing the issue of "improper service" of the complaint, the Commissioner explained that the application must be dismissed because there was no personal service of the application on officers and employee as necessary parties where the rights of such an officer or staff member would be adversely affected by a determination of an appeal in favor of a applicant.

With respect to issues in the application or appeal involving subject matter jurisdiction of the Commissioner:

1. To the extent that an application alleges discrimination on constitutional grounds, an appeal to the Commissioner is not the proper forum to adjudicate issues of constitutional law or to challenge the constitutionality of a statute or regulation and the complaint must be presented to a court of competent jurisdiction if otherwise timely.

2. To the extent that an application raises claims that do not arise under Education Law, such as defamation, the Commissioner of Education lacks jurisdiction over such claims, which may be raised in a court of competent jurisdiction if otherwise timely.

3. To the extent that an appeal to the Commissioners pursuant to Education Law §310 alleges claims under Title VI of the Civil Rights Act of 1964 or the Americans with Disabilities Act, an appeal to the Commissioner is not the appropriate forum to adjudicate such claims.

4. To the extent that the application asks the Commissioner to provide for an investigation concerning the issues giving rise to the application, a petition submitted to the Commissioner for adjudication is appellate in nature and does not provide for investigations.

5. To the extent that applicant seeks an award of monetary damages, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal filed pursuant to Education Law §310.

6. To the extent that the applicant seeks an apology from an officer of staff member, the Commissioner lacks the authority to order a member of a board of education or a school district employee to issue an apology.

Finally, as relevant in this appeal, the decision notes that in the interest of judicial economy, the Commissioner of Education will not entertain an appeal while there is an action pending in another forum involving the same issues and seeking similar relief.



Thursday, December 29, 2016

The Fifth Amendment's bar against “self-incrimination” does not protect an individual who lies in the course of an official inquiry


The Fifth Amendment's bar against “self-incrimination” does not protect an individual who lies in the course of an official inquiry 
2016 NY Slip Op 08368, Appellate Division, Second Department

In this proceeding pursuant to CPLR Article 78 to review the appointing authority’s adopting a Civil Service Law §75 hearing officer's findings and recommendation as to the discipline to be imposed, the Appellate Division sustained the appointing authority’s finding the employee [Petitioner] guilty of certain charges of misconduct and incompetence filed against him and imposing the penalty of dismissal of the Petitioner from his employment.

Among the charges filed against Petitioner was that, in response to a request for an account concerning an incident, Petitioner conceded made a false statement to his superior.

In sustaining the appointing authority’s action, the Appellate Division noted that the privilege against self-incrimination set out in the Fifth Amendment of the U.S. Constitution was not a bar to the disciplinary charge alleging that Petitioner had made the false statement because he was not required to waive his immunity with respect to the use of the statements in a criminal proceeding.

The court, citing Brogan v United States, 522 US 398, explained that "neither the text nor the spirit of the Fifth Amendment confers the privilege to lie." Similarly, in In Matter of Mathis (Commissioner of Labor), 110 AD3d 1412, the Appellate Division held that an employee’s constitutional right against self-incrimination does not give the individual the right to answer questions untruthfully. 

As to the penalty imposed on Petitioner, termination from his position, the Appellate Division said that a court "may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law." In this instance, said the court, the penalty of dismissal is not so disproportionate to the offenses as to be shocking to one's sense of fairness.”

Further, there may be unintended consequences if an employee is not truthful in responding to job related inquiries in an effort to avoid disciplinary action. The U.S. Supreme Court unanimously held that a federal government agency could impose a harsher discipline on an employee who lied while being investigated for job-related conduct than might otherwise have been imposed. Although only federal employees were involved, the ruling may influence cases involving state and local employees.
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The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html
______________

Wednesday, December 28, 2016

Difficulties result following the appointment of a teacher to an “unauthorized tenure area”


Difficulties result following the appointment of a teacher to an “unauthorized tenure area”
Decision of the Commissioner of Education, Decision No. 17,011

A teacher [Teacher] appealed the decision of the Board of Education that resulted in his being “excessed” following the abolishment of his position by the Board.  The Commissioner held that his appeal must be sustained in part.

Teacher held permanent certification as a teacher of English 7-12 and a gifted education extension. He was permanently appointed to the position subject to his satisfactory completion of a probationary period and ultimately received tenure in that "area" effective September 1, 2007.
 
Teacher’s position was abolished effective June 30, 2013 whereupon he challenged his being laid-off, contending that the district had “improperly appointed him to an unauthorized tenure area, in violation of Part 30 of the Rules of the Board of Regents” and he should have been accruing seniority credit in his area of certification pursuant to 8 NYCRR 30-1.2(b) of the Rules of the Board of Regents and should be retained by the district as he is not the least senior teacher in the 7-12 English tenure area. 

Accordingly, Teacher asked the Commissioner to annul the district’s termination of his employment and direct the school board to reinstate him to a position in the English 7-12 tenure area, with back pay, benefits and seniority.

The school district, conceding that it had improperly assigned Teacher to an unrecognized tenure area, argued that Teacher “did not spend more than 40 percent of his time performing duties in his certificate area or in instructional support services and that he failed to meet his burden of proof.” In addition, the school district contended that Teacher “failed to mitigate his damages.”

The Commissioner said that in the event a board abolishes a position, “the services of the teacher having the least seniority in the system within the tenure [area] of the position abolished shall be discontinued” (Education Law §3013[2]).  Therefore, the district must first identify the tenure area for the position to be abolished.”

In this instance, however, the school district mistakenly appointed an educator to a non-existent or incorrect tenure area. Accordingly, said the Commissioner, the school district "had an obligation to correct that mistake by retroactively appointing that teacher to a position that most closely resembles the recognized tenure area with the duties the teacher is actually performing.” In so doing, the Commissioner explained that “it is the actual nature of the abolished position that must be considered.  The certification, proper or improper, and the tenure status of the holder of the position, correctly determined or otherwise, are not controlling.”

On the record before her, the Commissioner said that it was unclear whether the school district ever conducted a detailed analysis of the duties of the position to be abolished.  On the other hand, and conceding that he has never taught in the academic tenure area of English 7-12, Teacher contended that he was spending more than 40 percent of his time providing instructional support services, and under 8 NYCRR §30-1.2(b)(2) he was entitled to credit for tenure and seniority “in a tenure area for which he holds the proper certification”.  Further, Teacher argued that since he was certified in English 7-12, the school district was obligated to assign him to the English 7-12 tenure area, in which tenure area he was not the least senior teacher. 

In contrast, the school district denied the representation that the Teacher’s job duties involved providing instructional support services for a substantial portion of his time, and asserted that he was appointed and served as a teacher of core academic subjects to gifted and talented students in grades three through six.

The Commissioner observed that “it is unclear whether [the school district] ever affirmatively determined the authorized tenure area(s) to which [Teacher’s] position should be reclassified and then determined seniority within such tenure area(s) as it is required to do. Rather, the school district’s superintendent “erroneously asserts that [the school district] could not reclassify [Teacher] to an elementary or middle school tenure area because he did not hold certification to teach in those tenure areas, and therefore was not legally qualified for such position. However, the Commissioner explained that “a district may not circumvent Education Law §3020-a by excessing a tenured, certified teacher based on their lack of certification to teach in the tenure area of an abolished position.”

The Commissioner ruled that, based on the record before her, Teacher had met his burden of demonstrating that at least 40 percent of his time was spent in the elementary tenure area (teaching gifted and talented instruction to elementary school students). Further, noted the Commissioner, Teacher may also be entitled to credit for his service in the English 7-12 tenure area within the exception created by 8 NYCRR §30-1.2(b)(2) for instructional support services.

Further, the Commissioner determined that the school district failed to refute Teacher’s assertions and the many affidavits submitted on Teacher’s behalf indicating that he taught gifted and talented education to elementary/middle school students for 40 percent or more of his time and/or spent more than 40 percent of his time performing instructional support services as defined in 8 NYCRR 30-1.1 of the Rules of the Board of Regents. 

However, since it was unclear from the record what percentage of Teacher’s duties was spent performing instructional support services from the 2005-2006 school year until June 30, 2013 and what percentage of his time was spent performing duties in the elementary tenure area (teaching gifted and talented instruction to elementary school students), when Teacher’s position was abolished, the Commissioner ruled that it was  appropriate to remand this matter to school district for a determination of Teacher’s seniority rights with respect to performing instructional support services in the certification area of English 7-12 and Teacher’s seniority rights with respect to performing services in the elementary tenure area, and based on his seniority in these two areas, his right to reinstatement as a teacher in the English 7-12 tenure area and/or elementary tenure area on June 30, 2013, “in accordance with 8 NYCRR 30-1.1 of the Rules of the Board of Regents and this decision.”

____________________________

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
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Tuesday, December 27, 2016

Employee suspended for one year without pay after failing to comply with school directives


Employee suspended for one year without pay after failing to comply with school directives
2016 NY Slip Op 08440, Appellate Division, First Department

The Appellate Division unanimously confirmed the decision of the appointing authority that found a faculty member [Petitioner] guilty of certain charges of misconduct and imposed the penalty of a one-year suspension without pay following a disciplinary hearing that was conducted in absentia.

Noting that Petitioner “was afforded the opportunity to appear at the hearing, which he chose not to attend …,” the court rejected Petitioner’s argument that he was denied due process. The Appellate Division said that substantial evidence supported the appointing officer’s finding that Petitioner engaged in misconduct when he disregarded a school directive that he cease contact with certain faculty members and that he failed to comply with a school directive that he meet with a representative of the Office of Student Affairs.

Further, said the court, the “record belies Petitioner's contention that he was denied due process” in that the charges preferred against him were specified in a two-page letter containing sufficient factual and legal detail to apprise him of the misconduct of which he was accused and the substantive rules he was accused of violating. Indeed, said the Appellate Division, “[t]he initial disciplinary determination, coupled with the hearing exhibits, with which he was supplied, provided Petitioner with factual findings sufficiently detailed to apprise him of the misconduct he was found to have engaged in and to give him a meaningful opportunity to lodge an appeal (of which he availed himself twice).”

The Appellate Division ruled that there was no merit to Petitioner’s contention that he was denied administrative due process as he [1] was apprise him of the misconduct he was alleged to have engaged in; [2] was afforded the opportunity to appear at the hearing, which he chose not to attend and which was then conducted notwithstanding his absence from the proceeding; [3] was provided with detailed written determinations; [4] afforded an administrative appeal process; and [5] obtained judicial review via CPLR Article 78.

Finally, citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and; Mamaroneck, Westchester County, 34 NY2d 222, the so-called Pell Doctrine, the court said that the penalty imposed, suspension without pay for one year, did not shock the judicial conscience.

______________________

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

Monday, December 26, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued as indicated


New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending December 31, 2016 
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Office of General Services (OGS): Business Services Center Shared Services (2016-S-16)
The state’s 2012-13 budget established the Business Services Center within OGS as a centralized office for processing human resources and finance transactions that are common across state agencies. Auditors found the center has improved the consistency and efficiency of certain services it provides to its customers. Procurement card rebates have increased by over $4 million, and interest paid by the state has decreased by $350,000 since fiscal year 2013-14. Also, the center estimates it has reduced staffing costs for administering these services by $34 million annually. 

Department of Health (DOH) Medicaid Payments Made Pursuant to Medicare Part C (Follow-Up) (2016-F-16) 
An audit released in May 2014 found the state’s Medicaid program did not have limitations on the amounts it paid for Part C cost-sharing liabilities and could have saved up to $69 million if it limited payments of Medicare Part C cost-sharing liabilities. The audit also identified several scenarios under which Medicare Part C cost-sharing liabilities were improperly paid. In a follow-up report, auditors found DOH officials made progress in addressing the problems identified in the initial audit report. This included developing controls to limit the amounts paid for Medicare Part C cost-sharing liabilities and controls to prevent concurrent payments of Medicaid Advantage premiums and Medicare cost-sharing liabilities on behalf of the same recipient. However, further actions were still needed. 

An audit issued in October 2014 identified about $13.9 million in inappropriate or potentially inappropriate Medicaid payments for low birth weight infants that did not meet billing requirements as well as overpayments due to duplicate fee-for-service and managed care claims. At the time the initial audit’s fieldwork concluded, auditors recovered over $7 million of the overpayments identified. In a follow-up, auditors found DOH officials made significant progress implementing the recommendations made in the initial audit report. This included recovering another $2 million in overpayments that were identified in the initial report and strengthening controls that prevented $13 million in improper claims. 

An initial audit report, issued in June 2013, examined whether ESD monitors the effectiveness of its international offices and manages payments to foreign representatives to ensure they are made only for authorized contract purposes. Auditors concluded that, while ESD had made significant improvements in managing payments to foreign offices, it did not have an appropriate performance monitoring system in place to evaluate foreign offices’ activities against contract requirements. In a follow-up, auditors found ESD made some progress in addressing the issues identified in the initial audit report; however, further action is needed. 

State Education Department: HTA of New York Inc., Compliance with the Reimbursable Cost Manual (2016-S-36)  
For the fiscal year ended June 30, 2014, auditors identified $28,952 in ineligible costs that HTA reported for state reimbursement, including $22,207 in other than personal service costs, and $6,745 in personal service costs, which consisted of $4,065 in unsupported staff time, $1,546 in employee compensation that was reported as more than one full-time equivalent and $1,134 in other non-reimbursable costs. 

Office of Information Technology Services (ITS): Security and Effectiveness of Department of Motor Vehicles’ (DMV) Licensing and Registration Systems (Follow-Up) (2016-F-15)
An audit report issued in September 2014 found that ITS and DMV were not in compliance with security standards that govern the systems that process credit card transactions. Auditors also found ITS did not comply with state cybersecurity policies and did not establish adequate processes for managing user access of DMV systems. In a follow up, auditors found DMV officials have made some progress in correcting the problems identified in the initial report. However, improvements are still needed. Of the five prior audit recommendations, two recommendations have been implemented and three recommendations have been partially implemented.

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending December 20, 2016 
Source: Office of the State Comptroller


Audits of Municipal Entities

The board did not audit and approve claims prior to payment. The library’s bylaws do not address the requirement for an audit of claims and the board did not adopt a written claims audit policy. The director reviews and approves invoices and provides them to the library’s senior clerk, who then prepares checks. Checks require two signatures prior to payment – the director and the board president. However, the board president pre-signs blank checks and does not review the claims for which checks are written.

Village officials have established effective procedures that ensure claims are adequately documented and properly supported, for legitimate village purposes and approved prior to payment. The clerk-treasurer receives vendor invoices from a department head or by mail and prepares claim packets. Each board member reviews each individual claim packet and board resolutions approving payment of claims are then passed and documented in the meeting minutes.

The justices properly collected, recorded and reported court money in a timely manner. Court records were current and accurate and reports to the Justice Court Fund were timely and complete. The justices also ensured that court money was deposited in a timely manner.

While the board, by resolution, generally approved abstracts of claims, it did not perform an effective claims audit or establish an adequate process to ensure that transactions were properly authorized and approved or that claims were for proper village purposes. Although all claims reviewed appeared to be reasonable and legitimate, the use of confirming purchase orders circumvents internal controls and weakens the procurement and budget control process. Moreover, when the board does not audit and approve claims prior to payment and has the same person that audits the claims sign checks, there is an increased risk that the village could pay for goods and services that are not proper village expenditures.

The treasurer’s status, as either a library officer or independent contractor, is unclear. While this appointment and the duties attached to this function are indicative of those of a public officer, it appears this individual was engaged to perform the duties of treasurer as an independent contractor. Among the indications of an independent contractor relationship, the treasurer does not take an oath of office, which is a requirement for holding public office, and is not compensated through the payroll, as are other library officers and employees.

Although the board adopted a procurement policy that required obtaining competition for purchases not subject to bidding requirements, village officials did not always ensure that purchases were made in compliance with the requirements. Furthermore, the policy did not include procedures for procuring professional services. Auditors selected a sample of purchases from 30 vendors totaling approximately $1.7 million and found that village officials did not use competitive methods to procure goods and services from six vendors who were paid a total of $196,732 for professional services. In addition, village officials did not competitively bid purchases from four vendors totaling $148,387, as required.


Audits of BOCES and School District

Although the board has adopted a procurement policy that requires competition for purchases not subject to bidding requirements, the policy does not clearly establish procedures for procuring professional services. Also, the purchasing agent and claims auditor did not always ensure that purchases were made in compliance with the policy or require district officials to properly document compliance when they sought competition.

BOCES did not properly oversee the managed technical support cooperative service agreement, which resulted in errors in reporting reimbursable expenditures to the New York State Education Department (SED). Specifically, BOCES reported district-based staff who were not eligible for aid reimbursement from SED. As a result, BOCES claimed $2.5 million in additional aid to which it was not entitled.

The board and district officials have not developed adequate written policies and procedures governing the claims processing function. In addition, the board did not develop a comprehensive job description that outlines the claims auditor’s expectations and requirements. The claims auditor compares invoices against only the purchase orders, which does not always provide adequate documentation about the vendors’ prices. The claims auditor does not compare invoices against quotes, bids or government contracts, and there is no policy that requires that these documents be attached to the claims.

The board delegated its responsibility to a claims auditor who generally ensured claims were adequately supported, properly audited before payment and in compliance with district policies. The claims auditor verified that claims were supported by original documentation such as detailed invoices or receipts and that each claim had been properly authorized.

Although the board and district officials reported unrestricted fund balance levels that were in accordance with statutory limits, they have annually appropriated fund balance towards the next year’s budget that was not used due to a practice of overestimating appropriations. This trend is projected to continue through 2015-16. Once the unused appropriated fund balance is included in unrestricted fund balance, the district’s recalculated unrestricted fund balance exceeds the statutory limit, ranging from approximately $2.4 million (12 percent) in 2012-13 to $930,000 (5 percent) in 2014-15. In addition, three reserves totaling approximately $3.8 million were overfunded, and the debt reserve totaling approximately $600,000 has not been used since 2010-11 for related debt principal and interest payments, as statutorily required.

Friday, December 23, 2016

Loyola Law School to hold its 12th annual Journalist Law School June 7, 2017 through Saturday, June 10, 2017



Loyola Law School to hold its 12th annual Journalist Law School June 7, 2017 through Saturday, June 10, 2017

The Civil Justice Program at Loyola Law School, Los Angeles will host journalists selected for Fellowships at its 12th annual Journalist Law School program Wednesday, June 7, 2017 through Saturday, June 10, 2017 at its campus in downtown Los Angeles. Fellows will study condensed core law-school subjects and participate in “break-out topics” programs. The faculty consists of law professors, judges and prominent attorneys.

There is no cost to journalists selected to participate as fellows. Instruction, lodging and most meals are included. The Journalist Law School will cover half of travel expenses up to $300. Participants will be housed at the nearby Hilton Checkers in downtown Los Angeles.

The application deadline is Wednesday, Feb. 15, 2017. The application and other details are available at www.journalistlawschool.org.

Fellows have the opportunity to suggest and select sessions based on their areas of interest. This year, faculty planners expect to focus on issues related to the presidential transition, intersection of technology and the law, and other legal topics frequently occupying news headlines.

Journalists with at least three years of experience who cover the law in some fashion are encouraged to apply. Journalist fellows, who are competitively selected, receive a certificate of completion at the end of the four-day program. JLS alumni include almost 400 reporters, editors and producers from a wide range of local, national and international news organizations.

Please see www.journalistlawschool.orgfor more information and to apply. If you have questions about the program, contact Brian M. Costello, Esq., Assistant Director, Marketing & Communications, Loyola Law School, Los Angeles; 213.736.1444 (office) or 310-902-9560 (cell)

Thursday, December 22, 2016

Courts, when determining if a penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness, must consider all the relevant circumstances


Courts, when determining if a penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness, must consider all the relevant circumstances
2016 NY Slip Op 08412, Appellate Division, Third Department

A police officer [Petitioner] was observed on a surveillance video pumping gasoline from his employer’s fueling system into his personal vehicle. Following an investigation by the State Police conducted an investigation. The investigation revealed that Petitioner has  access his employer’s fueling system and told the State Police investigator that he filled his personal vehicle and then made a sworn written statement describing, among other things, his accessing his employer’s fueling system to obtain gasoline.

Petitioner was charged with violating his employer’s rules of conduct by “wrongfully taking gasoline … and by making a false statement under oath. 

Following the disciplinary hearing, the Hearing Officer found:

1. The evidence did not substantiate the charges that Petitioner wrongfully took gasoline from his employer;  

2. The evidence did support a finding that he made a false statement under oath to the State Police.

As to the penalty to be imposed, the hearing officer recommended the termination of Petitioner’s employment. The appointing authority adopted the Hearing Officer's findings of fact in their entirety and the hearing officer's recommendation as to the penalty to be imposed and terminated Petitioner.

Petitioner commenced a CPLR Article 78 proceeding in Supreme Court seeking a court order annulling the appointing authority’s and the matter was transferred to the Appellate Division.

One of the major issues raised by Petitioner concerned his contention that the penalty imposed, termination, was excessive. The Appellate Division observed that in evaluating whether the penalty is excessive, a Court "must consider whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness." In so doing, said the court, "[t]his calculus involves consideration of whether the impact of the penalty on the individual is so severe that it is disproportionate to the misconduct, or to the harm to the agency or the public in general."

The Appellate Division said that it was mindful of "the high standard of character to which police officers are held" and the “substantiated charges of providing a false statement under oath should not go unpunished.”

Noting that all six charges pertaining to the false statement given to the State Police were sustained by the Hearing Officer, Petitioner was subject to the penalty or punishment provided in Civil Service Law §75(3), including "a reprimand, a fine not to exceed one hundred dollars . . ., suspension without pay for a period not exceeding two months, demotion in grade and title, or dismissal." 

Here, said the court, without further expansion on the Hearing Officer's findings and recommendations, the appointing authority adopted the harshest penalty, dismissal.

The Appellate Division then noted that it had sustained:

1. A two-month suspension where a police officer admitted to falsely reporting an incident;

2. A two-month suspension, letter of reprimand and $100 fine when a police officer was found guilty of improperly completing an offense report, refusing to comply with an order and refusing to report to a superior officer; and

3. A 30-day suspension and six months of probation for a State Trooper charged with misconduct for advising a friend to revoke her consent to the search of her residence by other troopers who were conducting a marihuana investigation.

As Petitioner’s personnel record does not indicate any other disciplinary actions or warnings and considering he had served as a police officer for 14 years and that the charges that he wrongfully took his employer's gasoline for his personal use were not sustained and there was no financial loss to the employer, the Appellate Division said that based on the totality of the circumstances, that the penalty imposed is so disproportionate to the offense as to shock its sense of fairness.

Accordingly, the Appellate Division remitted the matter to appointing authority for a redetermination of the disciplinary penalty to be imposed. 

___________________

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


Wednesday, December 21, 2016

Refusing to accept the resignation submitted by an employee


Refusing to accept the resignation submitted by an employee
Decisions of the Commissioner of Education, Decision No. 17,007

In this appeal to the Commissioner of Education, the petitioner [Petitioner] challenged a school district’s rejection of his resignation from his probationary appointment and its subsequent terminating him from his position instead. He asked the Commissioner to direct the district to either [1] rescind his appointment as a probationary employee or, in the alternative, [2] to accept Petitioner’s previously tendered letter of resignation.

The Commissioner said that as a general rule, "... a board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason, unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription or decisional law.”

Addressing the merits of Petitioner’s appeal the Commissioner said that “In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.”

Here, said the Commissioner, Petitioner failed to allege that his termination from his probationary appointment was for an unconstitutional reason or in violation of any statute. Accordingly, the Commissioner ruled that Petitioner “failed to meet his burden” and dismissed his appeal. Thus, in this instance, the school district’s records would record Petitioner’s separation from employment as a “probationary termination” rather than a “resignation” from his position. 

Technically, in this instance the school district elected to ignore Petitioner's resignation rather than refuse it as an appointing authority may not “refuse to accept” a resignation tendered by an officer or an employee and the resignation becomes operative upon its delivery to the appointing authority. Indeed, the officer or employee usually may not withdraw or rescind his or her resignation once it has been delivered to the appointing authority without the approval of the appointing authority. 

Although an appointing authority may acknowledge the "receipt" of a resignation received from an officer or an employee or report that an individual's resignation has been accepted, all that is required for a resignation to become operative is its delivery to the appointing authority. In other words, the approval or acceptance of the resignation is not required for the resignation to take effect  unless specific acceptance of a resignation is required by law, rule, regulation or the terms of a collective bargaining agreement (see Hazelton v Connelly, 25 NYS2d 74).

As an example of a situation where the acceptance of a resignation is mandated by statute, §2111 of the Education Law provides that an officer of a school district may "resign at a district meeting" or, in the alternative, the officer "shall also be deemed to have resigned if he filed a written resignation with the district superintendent of his district and such superintendent endorses thereon his approval and files the same with the district clerk" [emphasis supplied].

In contrast to "refusing to accept a resignation," an appointing authority may elect to disregard the resignation submitted by the individual under certain circumstances.

For example, 4 NYCRR 5.3(b), which applies to employees of the State as the employer  provides that in the event “… 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."

Another example: §1133.1 of the State Education Law provides that “[a] school administrator or superintendent shall not make any agreement to withhold from law enforcement authorities, the superintendent or the commissioner, where appropriate, the fact that an allegation of child abuse in an educational setting on the part of any employee or volunteer as required by [Article 23-B of the Education Law] in return for the resignation or voluntary suspension from his or her position of such person, against whom the allegation is made."

Presumably an appointing authority could elect to disregard an employee's “retirement” from his or her position under similar circumstances [See Mari v.Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 61].
________________________

The Discipline Book - A 458 page guide to discipline and other personnel transactions involving the removal of a public officer or employee from his or her position in the public service. For more information click on http://booklocker.com/books/5215.html
________________________
 

Tuesday, December 20, 2016

Teacher fined $10,000 after subjecting student to corporal punishment


Teacher fined $10,000 after subjecting student to corporal punishment
2016 NY Slip Op 08301, Appellate Division, First Department

The Appellate Division dismissed a petition to vacate an Education §3020-a disciplinary arbitration award finding that a special education teacher [Educator] inflicted corporal punishment on a special education student. The court then sustained the penalty imposed: a $10,000 fine, indicating that the penalty “does not shock our sense of fairness.”

The court found that the hearing officer’s determination:

1. Did not violate the Educator's due process rights as she was provided with notice, an appropriate hearing, and the opportunity to present evidence and cross-examine witnesses; and

2. Was supported by adequate evidence, was rational, and was not arbitrary and capricious.


As to the penalty imposed on  Educator, §3020-a(4)(a) of the Education Law, which applies to members of the teaching and supervisory staff of a school district, a board of cooperative educational services or a county vocational education and extension board, regardless of title, as described in subdivision (d) of §35 of the Civil Service Law, provides, in pertinent part, that “[i]n those cases where a penalty is imposed, such penalty may be a written reprimand, a fine, suspension for a fixed time without pay, or dismissal"


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Challenging Adverse Personnel Decisions - A 752-page e-book focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://nypplarchives.blogspot.com/

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Monday, December 19, 2016

Redacting certain content in a public record when responding to a Freedom of Information request


Redacting certain content in a public record when responding to a Freedom of Information request
Laveck v Village Bd. of Trustees of the Vil. of Lansing, 2016 NY Slip Op 08150, Appellate Division, Third Department

Responding to a Freedom of Information [FOIL] request, the Village of Lansing redacted certain information, including names and addresses of individuals contained in the record, contending that such redaction was necessary "to protect information that would, if disclosed, result in an unwarranted invasion of personal privacy and could, if disclosed, endanger the life and safety of persons."

The Appellate Division, explaining that under FOIL, "[a]ll government records are . . . presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law §87(2)," said that these exemptions are construed narrowly and the burden rests on "the public agency to demonstrate that 'the material requested falls squarely within the ambit of one of the statutory exemptions,'" and must provide a “'particularized and specific justification' for not disclosing requested documents."*

As to the personal privacy exemption, the Appellate Division said that the Village “failed to demonstrate that the redacted information fell into any of the categories of information that the Legislature has specifically determined would qualify as an unwarranted invasion of personal privacy if disclosed.” In the absence of such evidence, the court said it was necessary to evaluate whether disclosure would constitute an unwarranted invasion of personal privacy "by balancing the privacy interests at stake against the public interest in disclosure of the information."

Here, said the court, the Village “failed to establish that disclosure of the … names, home addresses or other personal identifying information would constitute an unwarranted invasion of personal privacy.”

Further, said the Appellate Division, the Village did not demonstrate that disclosure of the redacted information "could endanger the lives or safety" of the individuals listed in the documents.

The Village, having failed to establish the applicability of a statutory exemption, was held to have “improperly redacted the names, addresses and other identifying information” in the records and was directed to respond to the FOIL request “with unredacted copies of the requested documents, in electronic form if possible.”

The release of some public records pursuant to a FOIL regquest, however, may be  limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, submitting a formal FOIL request is not a condition precedent to obtaining public records where access is not barred by statute. Submitting a formal FOIL request becomes necessary only in the event the custodian of the public record[s] sought declines to simply provide the information or record requested. In such cases the individual or organization must file a formal FOIL request in order to obtain the desired record or information. 

It should also be noted that there is no bar to the custodian of the public record providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the statutory exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded. 

In some instances, however, a statutory exception may have “sublimated” as the Appellate Division observed in DeFreitas v New York State Police Crime Lab.,2016 NY Slip Op 05676, quoting Matter of Lesher v Hynes, 19 NY3d 57. In DeFreitas the court said “the exception in Public Officers Law §87(2)(e)(i) [interfere with law enforcement investigations or judicial proceedings] no longer applies [after the individual’s] criminal proceedings and judicial review have concluded.”

Saturday, December 17, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending December 17, 2016


New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending December 17, 2016 
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR.


Waterville Central School District praised in State Comptroller's audit 

 Waterville Central School District, located in Oneida County, is conducting necessary background checks and fingerprinting of employees prior to allowing them to work with students, according to an audit released by New York State Comptroller Thomas P. DiNapoli.

 
 DiNapoli calls for state procurement reform 

On December 13, 2016 New York State Comptroller Thomas P. DiNapoli proposed changes to New York state’s procurement practices in the wake of criminal charges and allegations of corruption in the awarding of contracts for state economic development projects.

“The alleged contracting and kickback schemes uncovered by federal and state prosecutors show lax oversight over economic development spending,” DiNapoli said. “The state funneled taxpayer money to quasi-government organizations, avoiding scrutiny and sidestepping usual procurement practices. This created an environment ripe for self-dealing and abuse. New York State must take credible steps to reestablish the public’s faith in government and address the broader problems.”

By state law, the Comptroller’s office is responsible for reviewing and approving state agency contracts above $50,000 and certain contracts over $1 million for state public authorities. The Comptroller’s independent oversight helps ensure that the process is fair and gets the best value for taxpayer dollars. In 2015, the Comptroller’s office reviewed 21,381 contract transactions totaling $169.2 billion.

In recent years, executive and legislative actions have eroded the Comptroller’s contract oversight. In 2011, this oversight was eliminated for construction and construction-related services contracts, among other purchases, issued by the State University of New York (SUNY) and City University of New York (CUNY). In 2012, the Comptroller’s oversight of Office of General Services (OGS) centralized contracts was removed.

In 2015, state agencies issued over $6.8 billion in contracts without Comptroller review.

DiNapoli’s comprehensive package of reforms increases independent oversight of contracts, prohibits the state from using state-affiliated not-for-profits to do state business, makes procurement requirements uniform, and toughens ethics and transparency rules. Specific proposals include:

• Restore the Comptroller’s independent oversight for SUNY, CUNY and OGS centralized contracts. Recent allegations show widespread weaknesses in SUNY’s procurement process and lax oversight of its affiliated not-for-profits. Restoring systemic checks and balances taken away from the Comptroller can help prevent future abuses and ensure that everyone is following the same rules.
 
• Prohibit the use of not-for-profits to bypass procurement laws and transparency. All contracts for state spending should either be held directly by a state agency or public authority and subject to independent oversight. SUNY’s affiliated not-for-profits had lax oversight and poor processes in place that appear to have been manipulated in multiple ways, allowing a non-competitive contracting process to occur and business to be directed to preferred contractors. These entities should not be used for state business or to bypass the routine and well-tested rules and regulations that state agencies follow.

• Require state public authorities to follow the same procurement requirements as state agencies. The procurement rules and approval process are not the same for every entity entrusted with taxpayer funds. Public authorities can adopt their own internal guidelines and do not have to follow state agency requirements clearly set out in law. Having everyone follow uniform requirements helps give assurance of competition, fairness and best value for taxpayers.

• Review contracts over $1 million for the Research Foundation of SUNY.Currently, the Research Foundation is not required to have any independent review of its contracts, which DiNapoli would change. He proposes that his office review contracts over $1 million funded with state dollars.

• Create tougher ethics requirements and penalties for those who abuse the procurement process. DiNapoli would strengthen disclosure of conflicts for employees of state agencies or public authorities, as well as board members and others, engaged in the process. He also wants to prohibit vendors who have violated procurement law from getting state business and create a code of ethics for vendors doing business with the state.

• Increase transparency. To assure a level playing field for all potential vendors, DiNapoli would require state agencies, public authorities and their affiliates to publish in the State Contract Reporter all potential business opportunities, including notice of single or sole-source procurements.

In early November, 2016, DiNapoli took administrative actions related to the bid-rigging and fraud scandal. He put the Empire State Development Corp. (ESD) on notice that any SUNY Polytechnic Institute contracts transferred or assigned to ESD must be submitted to his office for review. He made a series of recommendations to improve the payment process for economic development projects to help prevent against fraud and address the long delays that have occurred with payments made by ESD for projects. He lowered the threshold requirements for review of contracts from $250,000 to $50,000 for SUNY Poly’s contracts and put public authorities on notice of his plan to watch them closely.

As government contracting has grown in size, scope and complexity, the Comptroller’s oversight, which was established more than 100 years ago, has become more important than ever. While DiNapoli’s office legally has 90 days to review contracts, on the average the decision to approve or reject a proposed contract is issued within nine days. The Comptroller's
office is also committed to a high level of transparency and releases a monthly press release disclosing major state contracts and spending approved by his office. It also issues a detailed annual report, “State Contracts by the Numbers,” to inform the public and policymakers of actions taken.

Read DiNapoli’s letter to executive and lawmakers, or go to: http://www.osc.state.ny.us/reports/economic/cuomo_procurement_legislation.pdf

Read the bill memo, or go to: http://www.osc.state.ny.us/legislation/2015-16/oscb_nyspia_memo.pdf



Daughter sentenced for stealing her deceased father's retirement benefits 

New York State Comptroller Thomas DiNapoli and Attorney General Eric T. Schneiderman announced that Renee Kanas, a resident of Tamarac, Florida, was sentenced in Albany County Supreme Court to 6 months incarceration and 5 years of probation for stealing over $148,000 in New York state pension benefits.  Kanas pleaded guilty to Grand Larceny in the Third Degree, a class D felony, in June 2016.  

Kanas had concealed her father’s death in March 2010 from the New York State and Local Employees Retirement System, and continued to collect his pension benefits for over four years.  Kanas was sentenced for stealing pension benefits intended for her father, Jacob Yudenfreund, from March 2010 through January 2015.  In total, Kanas stole $148,092.24 by accessing a joint bank account she held with her deceased father, liquidating all but $1,207.55 from the account. During this time period, Kanas lived off of the stolen money and, among other things, took multiple cruises, including to the Caribbean.

In May 2016, Kanas was arrested on a warrant by the city of Tamarac Road Patrol and Broward County Sherriff’s in Florida.  After being brought to Albany County, New York to face these charges, in June 2016, Kanas pleaded guilty before Honorable Thomas A. Breslin in Albany Supreme Court. Today, she was sentenced to 6 months incarceration and 5 years of probation, $45,000 in restitution to New York State, and signed a confession of judgment for the remaining amount stolen of $103,092.24.

The investigation was conducted by the New York State Comptroller’s Division of Investigations and the Attorney General. This case is the latest joint investigation under the Operation Integrity partnership of the Attorney General and Comptroller, which to date has resulted in dozens of convictions and more than $11 million in restitution.  Attorney General Schneiderman and Comptroller DiNapoli thank the city of Tamarac Road Patrol and Broward County Sheriff’s in Florida for their assistance.

The Comptroller’s investigation was conducted by the Comptroller’s Division of Investigations, working with the New York State and Local Retirement System. 

The Attorney General’s investigation was conducted by Investigator Mark Spencer, Investigator Casey Quinlan and Deputy Chief Antoine Karam. Forensic accounting was performed by Associate Forensic Auditor Meaghan Scovello. The Investigations Bureau is led by Chief Dominick Zarrella. The Forensic Audit Section is led by Chief Auditor Edward J. Keegan.

This case was prosecuted by Assistant Attorney General Philip V. Apruzzese of the Criminal Enforcement and Financial Crimes Bureau.  The Criminal Enforcement and Financial Crimes Bureau is led by Bureau Chief Gary T. Fishman and Deputy Bureau Chief Stephanie Swenton. 


Audits and Reports
 

Auditors examined whether the costs claimed by the Association for Neurologically Impaired Brain Injured Children Inc. were valid and consistent with contract terms and were properly allocated among the various programs funded by New York City, New York state, and other sources. For the three fiscal years ended June 30, 2013, auditors identified $493,172 in claimed costs that did not comply with state requirements and recommend such costs be disallowed. Among the ineligible charges identified were: $208,063 in facility-related costs for shared space, $152,500 for unallowable payments for lobbyist services; and $48,802 for unsupported and duplicate payments to a contractor.


Department of Health (DOH): Facility Structure, Safety, and Health Code Waivers (Follow-Up) (2016-F-11)
An initial audit issued in June 2015 found DOH’s waiver practices did not effectively ensure that safety and structural risks related to physical plant standards at health care facilities were appropriately addressed. In a follow-up report, auditors determined DOH officials have made significant progress in addressing the problems identified in the initial audit. The initial report’s four recommendations were all implemented.
An initial audit report released in January 2015 identified 5,571 Medicare Part C claims that either had unreasonably high patient cost-sharing amounts or indicated UnitedHealthcare did not cover the service. Auditors reviewed 125 Medicaid claims totaling $151,069 and found Medicaid overpaid 54 claims (43.2 percent) by $61,711. In a follow-up, auditors determined DOH officials have made progress implementing the recommendations made in the initial audit, which included recovering overpayments and instructing providers to bill Medicare Part C claims in accordance with the existing requirements.

 
Department of Health: Improper Payments to a Physical Therapist (Follow-Up) (2016-F-7)
An initial audit issued in December 2014 found that Medicaid overpaid a physical therapist $146,225 for 3,837 claims that were submitted to the Medicaid program with incorrect Medicare payment information. In addition, the audit questioned the propriety of 5,634 claims totaling $158,990 because the therapist submitted claims using his National Provider Identifier for services that were rendered by other clinicians. 

In a follow-up report, auditors found DOH officials made some progress implementing the recommendations made in the initial audit report. Those efforts included certain steps to recover $116,298 in overpayments. However, at the time auditors completed follow-up fieldwork, none of the overpayments were actually recovered and additional actions were still needed.

 
Department of Motor Vehicles (DMV): Traffic Ticket Surcharges (Follow-Up) (2016-F-12)
An initial audit report issued in August 2015 concluded that, on an overall basis, the DMV consistently accounted for and reported all traffic ticket surcharge revenue. However, auditors identified certain areas where the DMV could make greater use of the data it maintains to better manage and improve its operations. In a follow-up report, auditors found DMV officials have made progress in implementing the recommendations identified in the initial report. However, additional improvements are still needed.

 
For access to state and local government spending and more than 50,000 state contracts, visit www.openbooknewyork.com. The easy-to-use website was created by DiNapoli to promote openness in government and provide taxpayers with better access to the financial workings of government.


Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

Caution:

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