Filing disciplinary charges against an employee where the absence is due to an injury or disease

Filing disciplinary charges against an employee where the absence is due to an injury or disease

OATH Index No. 648/17

An appointing authority may serve an employee of the State* as the employer  with disciplinary charges alleging he or she is guilty of "excessive absence." It is typically inappropriate to do so, however, when the employee is eligible for Workers' Compensation Leave pursuant to §71 of the Civil Service Law or Leave for Ordinary Disability pursuant to §72 of the Civil Service Law.

Civil Service Law §71 provides for leaves of absence in the event an employee’s injury or disease is “work connected” and is typically referred to as “workers’ compensation leave. §72 of the Civil Service Law provides for leaves in situations where the employee’s injury or disease is not job related and is usually designated “leave for ordinary disability.” §73 of the Civil Service Law provides for the termination of an employee absent on §72 leave while termination of leave in §71 situations is authorized by §71 itself.**

Significantly neither termination pursuant to §71 nor §73 is pejorative in nature and the individual is eligible for reinstatement to his or her former position, or a similar position, upon timely application once the underlying cause of his or her absence abates.

a. Workers’ Compensation Leave, §71 of the Civil Service Law, “stands alone” with respect to placement on such leave and termination from, and subsequent reinstatement following such termination from §71;

b. Civil Service Law §72, Leave for Ordinary Disability, provides for such leave and reinstatement from such leave while §73 of the Civil Service Law provides for termination from a §72 leave and subsequent reinstatement after such termination; and

c. Termination from §71 or §72 leave once the minimum periods of such leaves are satisfied is at the discretion of the appointing authority.

It should be noted that although the employee must be absent on leave pursuant to §72 continuously for period of one year to trigger the appointing authority’s ability to elect to terminate the individual pursuant to §73, the appointing authority may, as an exercise of discretion, terminate an employee absent on §71 Worker’s Compensation Leave after he or she has been absent on such leave due to the same injury or disease for an “accumulative period” of one year or longer.

Further, where an employee is placed on §71 Workers’ Compensation Leave because of a disability resulting from an assault sustained in the course of his or her employment, he or she is entitled to a leave of absence for an “accumulative period” of at least two years.

In any event, neither §71 nor §72 requires the termination of the employee after he or she has been absent for the requisite minimum period of such a leave. Such termination effected as the result of an appointing authority's exercising a right of discretion to do so.

This issue was recently addressed by New York City Office of Administrative Tribunals and Hearings [OATH] Administrative Law Judge Kara J. Miller as the result of a New York City construction worker being charged with incompetence pursuant to §75 of the Civil Service Law due to "excessive absence."

The record, however, established that the employee's absence was due to an occupational injury which resulted in his being "out on worker’s compensation" for more than one year. ALJ Miller recommended that the worker be separated from employment pursuant to Civil Service Law §71 because his extended absence resulted exclusively from an occupational injury.

Indeed, in Gooshaw v Village of Massena, 216 AD2d 819, the Appellate Division said that it is inappropriate to file disciplinary charges against an individual who is unable to report for work because of his or her conceded disability.

* Although not all employees of the State are State officers, all officers of the State are employees of the State.

** See 4 NYCRR 21.3(e) and 4 NYCRR 21.8, both of which apply to employees of the State as an employer. Many local civil service commissions and personnel officers have adopted similar rules or regulations.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-648.pdf

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Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html

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Applying the doctrine of primary jurisdiction

Applying the Doctrine of Primary Jurisdiction

2017 NY Slip Op 02192, Appellate Division, Fourth Department

In 2003 the petitioner-plaintiff [Petitioner] was notified by her employer,  Erie 2-Chautauqua-Cattaraugus Board of Cooperative Educational Services [BOCES], that her position as a tenured teacher of gifted and talented elementary school students had been abolished. Petitioner's name was then placed on a preferred eligible list for reappointment to the same or a similar position in accordance with Education Law §3013(3)(a).

Petitioner subsequently learned that BOCES had created a teacher position in a universal prekindergarten [UPK] program in one of the BOCES' component school districts. Despite declining offers of that position in December 2007 and June 2008, Petitioner brought this "hybrid plenary action and CPLR Article 78 proceeding"

In her petition-complaint, Petitioner advanced various theories alledging that BOCES violated her "recall from the preferred list" rights under the Education Law and sought "reappointment to the UPK teacher position, with back pay and benefits and restored pension credit, retroactive to 2005," at which time BOCES had allegedly established the UPK position. Supreme Court, after granting Petitioner's motions to reargue, dismissed her petition in its entirety based on the Doctrine of Primary Jurisdiction.* The court had concluded that the issue of whether the former and new positions are similar for the purposes of §3013(3)(a) is for the Commissioner of Education to resolve in the first instance. Petitioner appealed Supreme Court's decision to the Appellate Division.

The Appellate Division sustained the lower court's rulings with respect to Petitioner's motions to reargue, which had been granted, holding that Supreme Court, in the person of the newly assigned Individual Assignment System (IAS) Judge, properly entertained and granted Petitioner's motion for leave to reargue. The Appellate Division then said the Supreme Court, after granting Petitioner motions to reargue, properly dismissed her petition relying on the Doctrine of Primary Jurisdiction.

The Appellate Division explained that in this instance the Commissioner of Education "has the specialized knowledge and expertise" to resolve the factual issue of whether Petitioner's former position with BOCES  as a teacher of gifted and talented elementary school students and the new UPK teacher position are similar within the meaning of §3013(3)(a) of the Education Law.

Citing Hessney v Board of Education of Public Schools of Tarrytowns, 228 AD2d 954, the Appellate Division held that Supreme Court properly dismissed Petitioner's action as she had failed to timely appeal the matter to the Commissioner of Education.

* Applying the Doctrine of Primary Jurisdiction permits a court to refer an issue to an administrative agency for its determination when the issue is within the agency's purview and expertise. Should a party challenge the administrative determination, the administrative agency's decision may be, if timely appealed, addressed by the court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02192.htm

Selected reports posted in Employment Law News by WK Workday

Selected reports posted in Employment Law News by WK Workday

Source: Wolters Kulwer

Selected reports posted by WK Workday August 29, 2017

Click on text highlighted in color  to access the full report

Firing due solely to wife’s jealousy might be gender bias under NY state, city law

By Joy P. Waltemath, J.D.

Is firing an at-will employee at the urging of an employee’s spouse due to sexual jealousy sex discrimination? It could be, said a New York state appellate court, reversing the dismissal of a sex discrimination complaint under state and city law filed by the fired employee of a chiropractic and wellness clinic who alleged that she was fired by the clinic’s husband and wife co-owners after the wife texted her to “stay the [expletive] away from my husband and family!!!!!!! And remember I warned you” (Edwards v. Nicolai).

City of LA was a market participant, not a regulator, in imposing ‘labor peace agreement’ at LAX

By Ronald Miller, J.D.

As proprietor of Los Angeles International Airport (LAX), the City of Los Angeles could require businesses at the airport to accept a contractual condition imposing a “labor peace agreement” in licensing agreements for service providers, ruled a divided Ninth Circuit panel. A trade association representing service providers at LAX had standing to challenge the city’s actions, the appeals court determined. Nevertheless, because the city was acting as a market participant, and there was no indication that Congress intended to preempt actions taken by state and local governments in this capacity, the Ninth Circuit affirmed the district court’s dismissal of the complaint. Judge Tallman filed a separate opinion concurring in part and dissenting in part (Airline Service Providers Association v. Los Angeles World Airports).

Ordinance regulating solicitation by day laborers unconstitutionally restricted commercial speech

By Ronald Miller, J.D.

A federal district court correctly held that a city ordinance ostensibly designed to regulate solicitation of work by day laborers was an unconstitutional restriction of commercial speech in violation of First Amendment, ruled a divided Second Circuit in a 2-1 decision. The appeals court held that an advocacy group that counseled day laborers at “shape-up sites” within the town demonstrated a sufficient injury-in-fact to confer standing to challenge the ordinance. On the merits, it agreed with the lower court that the ordinance restricted speech based on its content and was therefore subject to the First Amendment; the ordinance failed the Central Hudson test because it is an overbroad commercial speech prohibition. Judge Jacobs filed a separate dissenting opinion (Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, [New York]).

Coach suspended for praying on football field spoke as public employee

By Lorene D. Park, J.D.

Affirming the denial of preliminary injunctive relief for a football coach seeking reinstatement and to be allowed to pray on the 50-yard line immediately after games, the Ninth Circuit held that he spoke as a public employee, not as a private citizen, when he kneeled and prayed in school logoed-attire while in view of students and parents. The panel also expressed that he used his position to press his particular views on impressionable and captive minds. Because his demonstrative speech fell within his typical job duties, he spoke as a public employee, and the district was allowed to order him not to speak in this manner, he could not show a likelihood of success on the merits of his First Amendment retaliation claim and was not entitled to a preliminary injunction (Kennedy v. Bremerton School District).

Reducing or discontinuing a NYSHIP participating employer's contributions towards a retired employee's health insurance premium

Reducing or discontinuing a NYSHIP participating employer's contributions towards a retired employee's health insurance premium

Weaver, et al, v Town of N. Castle, 2017 NY Slip Op 05960, Appellate Division, Second Department

On June 27, 2012 the Town Board of the Town of North Castle adopted a resolution establishing a "Compensation and Benefits Manual" [Manual]. The Manual provided that, effective July 1, 2012, the Town would not contribute towards the cost of health insurance benefits on behalf of current or former Board members enrolled in the Town's health insurance plan, the New York State Health Insurance Program [NYSHIP],* although such elected officials could continue their coverage in the NYSHIP by paying 100% of the total cost of the premium for their participation in NYSHIP.

Following the Town's informing the affected individuals of the increased premium rates they would be required to pay in order to continue their participation in NYSHIP, a number of such persons [Petitioners] initiated an Article 78 action challenging the Board's action, seeking a court order declaring the Board's resolution "null and void."

Supreme Court dismissed the Petitioners' complaint, affirmatively declaring that the Town Board's resolution "was not null and void," and, in effect, held that the Petitioners [1] did not have a vested contractual interest in retirement health insurance benefits, [2] that the doctrine of promissory estoppel did not bar the reduction of Town's contribution to the Petitioners' health insurance premiums and [3] the Board's resolution, "insofar as it provides that the Town of New Castle will not contribute toward retirement health insurance benefits of former members of the Town Board of the Town of New Castle who retired prior to July 1, 2012, does not violate Civil Service Law §167(2)."

The Petitioners appealed and the Appellate Division modified the Supreme Court's judgment "on the law," declaring that the resolution, insofar as it provided that the Town of New Castle "will not contribute toward retirement health insurance benefits for former members of the Town Board of the Town of New Castle who retired prior to July 1, 2012, violates Civil Service Law §167(2)."

The Appellate Division said that although Supreme Court properly determined that [1] the Board was entitled to reduce the Petitioner's retirement health insurance benefits granted by its October 13, 1983 resolution,* as "A municipal resolution is, in general, a unilateral action that is temporary in nature and, thus, does not create any vested contractual rights" and [2] the Town was not barred by the doctrine of promissory estoppel from reducing the appellants' retirement health insurance benefits,** Supreme Court erred in determining that the Town was not required to contribute any amount for the retirement health insurance benefits of former Board members who retired prior to July 1, 2012."

The court noted that Civil Service Law §167(2) provides, in relevant part, that participating employers, such as the Town, are required to contribute 50% of the cost of premiums for retired employees, and 35% of the cost of coverage for their dependents. The Appellate Division then ruled as Petitioners were individuals who has become enrolled in [NYSHIP] as an employee and whose coverage is being continued after his or her withdrawal from the active service within the meaning of 4 NYCRR 73.1[e], the Town may not reduce its contribution rates "below the legally mandated minimums set out in §167(2) of the Civil Service Law."

The matter was then remitted to Supreme Court for a determination as to damages for the amounts paid by the retired appellants "which were part of the legally mandated minimums and for the entry of an appropriate amended judgment thereafter."

* Civil Service Law §167(2), in pertinent part, provides that "Each participating employer shall be required to pay not less than fifty percentum of the cost of premium or subscription charges for the coverage of its employees and retired employees who are enrolled in the statewide only or the statewide and comparable supplementary health benefit plans established pursuant to this article. Such employer shall be required to pay not less than thirty-five percentum of the cost of premium or subscription charges for the coverage of dependents of such employees and retired employees. Such employer shall contribute toward the premium or subscription charges for the coverage of each employee or retired employee who is enrolled in an optional benefit plan and for the dependents of such employee or retired employee the same dollar amount which would be paid by such employer for the premium or subscription charges for the coverage of such employee or retired employee and his or her dependents if he or she were enrolled in the statewide health benefit plan, but not in excess of the premium or subscription charges for the coverage of such employee or retired employee and his or her dependents under such optional benefit plan. Such employer shall not be required to pay the cost of premium or subscription charges for the coverage of unpaid elected officials, or unpaid board members of a public authority, or their dependents, provided, however that no unpaid board member of a public authority shall be eligible to participate in such benefit plan until he or she has served in such position for at least six months. Subject to such regulations as the president may prescribe, any participating employer may elect to pay higher rates of contribution for the coverage of employees, retired employees and their dependents ...."

** The Town's 1983 resolution proved that it would pay "either 100% or 85% of the NYSHIP premium for health insurance depending on the amount of years of service set forth in current collective bargaining agreements for retirees."

*** The Appellate Division noted that to establish promissory estoppel, a party must prove a clear and unambiguous promise, reasonable and foreseeable reliance by the party to whom the promise is made, and an injury sustained in reliance on that promise.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05960.htm

Determining an educator's seniority for the purposes of layoff

Determining an educator's seniority for the purposes of layoff

Decisions of the Commissioner of Education, Decision No. 17,140

Education Law §§2510(2) and 3013(2) provide that when a board of education 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.”  Further, in determining which position within a tenure area is to be abolished "seniority credit shall be awarded for time served in a position for which the teacher did not hold proper certification, at the time, because certification is not controlling in determining seniority credit for this purpose." 

In this appeal to the Commissioner of Education the Petitioner alleged that she was improperly excessed from her position in violation of Education Law §2510 as she had spent at least 50 percent of her time teaching social studies in both the 2008-2009 and 2009-2010 school years and thus she had greater seniority than another social studies teacher and that teacher should have been excessed. Petitioner requested that the Commissioner declare the school board’s actions excessing her null and void and to direct the school board to reinstate her to her former position "with full seniority rights, benefits and pay retroactive to September 1, 2014."*

The school district, in rebuttal, contended that the earliest Petitioner could begin to accrue seniority in the tenure area of social studies was the date upon which she received certification in social studies. Accordingly, the school district argued Petitioner was the least senior teacher in the social studies tenure area and that its decision to terminate her services was proper. In so doing the school board cited the Appellate Division's decision in Abdallah v. Bd. of Educ. of Massena Cent. Schools, 61 AD2d 1096, in support of its action.

In Abdallah the court held that the petitioners in that case, nurse-teachers whose positions were abolished and replaced by registered nurse positions, "were not certified in the tenure area of the position abolished" and thus they “could not possibly have gained tenure and seniority in those tenure areas.” However, the Commissioner opined that this statement by the Appellate Division in Abdullah was not intended to overrule Matter of Lynch v. Nyquist, 41 AD2d 363, affirmed, 34 NY2d 588. In Lynch the court held that an uncertified teacher cannot be given seniority credit towards tenure and thus become tenured even though uncertified.

The Commissioner said "it is unclear" whether the school district ever affirmatively determined the authorized tenure area(s) to which Petitioner’s position should be classified or reclassified and then determined her  seniority within such tenure area(s) as it is required to do. Rather the school district, relying on Abdallha, "erroneously asserted that it could not reclassify Petitioner’s duties because she could not accrue seniority credit in the abolished position for the time period that she did not hold a proper certification." However, noted the Commissioner, the Appellate Division's ruling in Lynch indicated that a school 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" is still binding precedent.

Accordingly, the matter was remanded to the school board for its determination of Petitioner’s seniority rights with respect to [1] performing duties in the social studies tenure area, and [2] whether she is entitled to back pay and retroactive benefits from September 1, 2014 through October 13, 2014, in accordance with 8 NYCRR 30-1.1 and this decision.

It should be noted that the Education Law and the rules and regulations promulgated thereunder addressing seniority, tenure and layoff with respect to educators apply to those positions in the Unclassified Service as defined in §35(g) of the Civil Service Law.

In contrast, §80 [positions in the competitive class of the Classified Service]** of the Civil Service Law, subject to certain statutory exceptions, provide that "suspension or demotion, as the case may be, among incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs, subject to the provisions of subdivision seven of section eighty-five of this chapter; provided, however, that the date of original appointment of any such incumbent who was transferred to such governmental jurisdiction from another governmental jurisdiction upon the transfer of functions shall be the date of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction from which such transfer was made."

Further, as the Appellate Division held in City of Plattsburgh v Local 788, 108 AD2d 1045, the statutory rights set out in §80 of the Civil Service Law may not be abrogated by the terms of a collective bargaining agreement as an individual’s seniority for the purposes of layoff may neither be diminished or nor impaired by the terms of a collective bargaining agreement.

* The record indicated that Petitioner was reinstated to her former position on October 14, 2014 and that she has continued in that position to date with full salary and benefits. Accordingly, said the Commissioner, the only issue to be addressed is "Petitioner’s request for reinstatement with back pay, interest, benefits, seniority, tenure and other emoluments of office for the period September 1, 2014 through October 13, 2014."

** See §80-a of the Civil Service Law, which provisions control with respect to positions in the non-competitive class of the Classified Service of the state as the employer in the event of a layoff of such personnel.

The decision is posted on the Internet at: 

http://www.counsel.nysed.gov/Decisions/volume57/d17140

_________________________ 

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews 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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New York State Comptroller Thomas P. DiNapoli announced the following report was issued during the week ending August 26, 2017

 
New York State Comptroller Thomas P. DiNapoli announced the following report was issued during the week ending August 26, 2017

Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

Comptroller DiNapoli and A.G. Schneiderman Announce Sentencing of Former West Ghent Volunteer Fire Company Treasurer Who Embezzled Funds to Bankroll Personal Business

Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the sentencing of Gail E. Cesternino, the former West Ghent Volunteer Fire Company treasurer, for embezzling fire company money to bankroll her personal business. Cesternino was sentenced to 30 days in jail followed by five years’ probation, and ordered to pay $58,000 in restitution and a $5,000 fine.

Selected reports posted in Employment Law News by WK Workday

 

Selected reports posted in Employment Law News by WK Workday

Source: Wolters Kulwer

Selected reports posted by WK Workday distributed August 25, 2017

Click on text highlighted in color  to access the full report

Sweeping ‘don’t talk about K9 unit’ mandate was prior restraint on troopers’ free speech

Moonin v. Tice, By Lisa Milam-Perez, J.D.

Officer could be fired for derogatory Facebook post and texts about Trayvon Martin

Snipes v. Volusia County, By Kathleen Kapusta, J.D.

Supervisor’s heterosexuality wouldn’t bar jury from finding she sexually desired female subordinate

Watkins v. Illinois Central School Bus, LLC, By Lorene D. Park, J.D.

The Doctrine of Collateral Estoppel bars relitigating an issue raised and decided by a judicial tribunal in a prior action or proceeding involving the same parties

The Doctrine of Collateral Estoppel bars relitigating an issue raised and decided by a judicial tribunal in a prior action or proceeding involving the same parties

2017 NY Slip Op 06264, Appellate Division, Second Department

In an action to recover damages for alleged unlawful discrimination, unlawful retaliation, and maintaining a hostile work environment in violation of Executive Law §296 [NYSHLR] and §8-107 of the Administrative Code of the City of New York [NYCHRL], Supreme Court determined that the plaintiff's claims under color of NYSHRL and NYCHRL were barred by the doctrine of collateral estoppel.

The plaintiff appealed the court's ruling, contending that the court erred in dismissing his claims brought under NYCHRL. The Appellate Division, citing Ryan v New York Tel. Co., 62 NY2d 494, sustained the lower court's decision, explaining that the doctrine of collateral estoppel bars a party from "relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity [to such party], whether or not the tribunals or causes of action are the same."

Noting that a  party seeking to invoke the doctrine of collateral estoppel has the burden to show the "identity of the issues," while the party trying to avoid application of the doctrine must establish "the lack of a full and fair opportunity to litigate," the Appellate Division explained that four conditions must be met to trigger application of the Doctrine:

(1) The issues in both proceedings must be identical;

(2) The issue in the prior proceeding must have been actually litigated and decided;

(3) There was a full and fair opportunity to litigate in the prior proceeding; and

(4) The issue previously litigated was necessary to support a valid and final judgment on the merits.

Further, said the Appellate Division, in the event a federal court declined to exercise jurisdiction over a plaintiff's state law claims, collateral estoppel may still bar litigating those state claims in state court if the federal court decided issues identical to those raised in the plaintiff's state claims.

In plaintiff's earlier federal action, a federal District Court determined that the defendant-employer had legitimate, nondiscriminatory reasons for its employment actions, it was not motivated by retaliatory animus, its reasons were not a pretext for discrimination, and the plaintiff was not treated differently than other employees. The District Court's determinations in this regard were affirmed by the U.S. Circuit Court of Appeals.

Accordingly, the Appellate Division found that "the determinations rendered by the federal courts are dispositive of the plaintiff's claims under NYSHRL and NYCHRL, even under the broader standard of NYCHRL" and concluded that Supreme Court properly determined that the plaintiff's claims under NYSHRL and NYCHRL were barred by the doctrine of collateral estoppel.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06264.htm

The New York State Department of Civil Service has announced the availability of 500 new State Government Internships

The New York State Department of Civil Service has announced the availability of new State Government Internships

Source: New York State Department of Civil Service

On August 23, 2017 the New York State Department of Civil Service announced the availability of more than 500 new student internships for the upcoming 2017 Fall Semester throughout New York State government.  

N.B. The application deadline is September 12, 2017.

Student internships are available across a wide array of State agencies – both upstate and downstate – and include opportunities in finance, environmental conservation, criminal justice, health care, engineering, and a host of other professional disciplines. A current list of available internships for the Fall 2017 Session is posted on the Internet at: https://nysinternships.cs.ny.gov/nnyl/main/viewinternships.cfm

Student internships are available to undergraduate and graduate students at colleges and universities throughout New York State, as well as New York residents enrolled elsewhere. Opportunities include paid and unpaid positions and internships may provide academic credit depending on the policy of the intern’s educational institution. Each intern works in a particular area within an Executive Branch agency or department and internships are designed to provide participants with hands-on program experiences.

New York State’s one-stop website – nysinternships.cs.ny.gov– allows applicants to view job descriptions, create profiles, specify occupational interests, and upload resumes, writing samples, and letters of recommendation. Students can apply for multiple internships at the same time..

The Student Intern Program is administered by the Department of Civil Service and is one component of Governor Cuomo’s New New York Leaders Initiative and focuses on attracting new and highly-skilled individuals to the State workforce through both internship and fellowship programs.

Processing appeals to the Commissioner of Education seeking the removal of a member of a Board of Education

Processing appeals to the Commissioner of Education seeking the removal of a member of a Board of Education

New York State Commissioner of Education MaryEllen Elia has issued decisions in three appeals submitted to her by various parties seeking the remove Carl Paladino and others as a member of the Board of Education of the City School District of the City of Buffalo and certain other board members and administrative officers employed by the school district.

Appeal 1 by teachers and others:

Decisions of the Commissioner of Education, Decision No. 17,148 (August 17, 2017) 

In this appeal Petitioners, Joseph R. Montante, Sophia Howard-Johnson, Maria A. Baker, Rachel Lyons, and Ruyvette Townsend, sought the removal of Carl Paladino [respondent] as a member of the Board of Education of the City School District of the City of Buffalo.

Petitioners are teachers, residents, parents, taxpayers, and “members of the Buffalo educational community” in respondent’s district.  Paladino was elected to a three-year term as a member of the board on May 21, 2013 and was subsequently re-elected on May 17, 2016. 

The Commissioner concluded that Paladino should be removed as a member of the Board of Education as "[t]he record demonstrates that [Paladino] disclosed confidential information regarding collective negotiations under the Taylor Law which he gained in the course of his participation as a board member in executive session, and that his disclosures constituted a wilful violation of law warranting his removal from office pursuant to Education Law §§306 and 2559...."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17148

Appeal 2 submitted by certain parents:

Decisions of the Commissioner of Education, Decision No. 17,149 (August 17, 2017)

Petitioners are the parents and guardians of students in the City School District of the City of Buffalo.  Petitioners contended that respondent Paladino published comments in a December 23, 2016 edition of Artvoicemagazine which disrupted district operations and caused “psychological and emotional harm” to district students.  Petitioners further argue that respondent board and respondent Cash’s failure to “act to eliminate or address the extremely” harmful conduct constitutes cause for removal pursuant to Education Law §306.  Petitioners sought an order removing respondents from office pursuant to Education Law §§306 and 2559 as well as the appointment of a receiver “until new elections are held in 2018.” 

The Commissioner dismissed this appeal explaining "On this record, petitioners failed to effectuate personal service of the application upon the individuals of whom they seek removal and, therefore, did not secure jurisdiction over any of the respondents.  Accordingly, the application must be denied for failure to join the individual respondents as necessary parties."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17149

Appeal 3, submitted by certain organizations and others:

Decisions of the Commissioner of Education, Decision No. 17,150 (August 17, 2017)

Petitioners in this application consisted of the Buffalo Parent Teacher Organization (“BPTO”), NAACP Buffalo Branch, Lawrence Scott, the Reverend Mark Blue, Eve Shippens, Katherine S. Haq, Rahwa Ghirmatzion, Gretchen Cercone, Chanda O’Donnell de Ramirez, and Rachel Dominguez, seek the removal of Carl Paladino (“respondent”) as a member of the Board of Education of the City School District of the City of Buffalo (“board”).

The record indicated that petitioner BPTO is a non-profit organization based in Buffalo, with over 2,000 members, including parents, guardians, or “other adult standing as a parent for a student” in the district.  Petitioner Scott is a co-chair of the BPTO, taxpayer and resident in the Buffalo City School District.  Petitioner NAACP Buffalo Branch is a non-profit organization based in Buffalo that primarily serves the African-American community in the Buffalo area.  Petitioner Blue is the president of the NAACP Buffalo Branch.  Petitioner Shippens is a co-chair of the BPTO, a district teacher and parent.  Petitioner Haq is a BPTO secretary and parent.  Petitioner Ghirmatzion is the deputy director of PUSH Buffalo, an organization that serves approximately 2,000 district youths per year. Petitioner Cercone is a parent, resident and taxpayer in the district.  Petitioner O’Donnell de Ramirez is a BPTO member, parent and former educator in the district.  Petitioner Dominguez is a BPTO member, parent, resident and taxpayer in the district. 

The Commissioner said that the application must be denied as moot as only matters in actual controversy will be considered by her and decisions are not rendered on a statement of facts which no longer exist or which subsequent events have laid to rest.

Commissioner Elia then noted that Petitioners had requested that the "respondent be permanently removed from his position on the board" and took administrative notice of her  August 17, 2017 decision in Application of the Board of Education of the City School District of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147, in which respondent was removed from office for wilful violation of General Municipal Law §805-a by disclosing confidential information which he obtained in the course of his official duties.

Thus, said the Commissioner, "Petitioners’ application for respondent’s removal, therefore, is moot."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17150

_____________________ 

 

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more information click on http://booklocker.com/books/5215.html

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Selected reports posted in Employment Law News by WK Workday

Selected reports posted in Employment Law News by WK Workday

Source: Wolters Kulwer

Selected reports posted by WK Workday distributed August 23, 2017

Click on text highlighted in color  to access the full report

No absolute right to presence of union representative in investigatory hearing
 
OK to deny union representation in peer review meeting, but denying union info about peer review unlawful  

No work from home for pregnant employee who taught, met with patients, supervised staff

Abolishing a position for economic reasons

Abolishing a position for economic reasons

Decision of the Commissioner of Education, Decision No. 17,142

The Director of Athletics and Physical Education [Petitioner] was granted tenure in this tenure area in 2008. In May 2013 the superintendent of schools advised the Petitioner that his position was to be abolished for economic reasons and at its meeting held on June 20, 2013, the School Board approved the superintendent’s recommendation to abolish the Petitioner position effective June 21, 2013.  

Petitioner appealed the School Board's action to the Commissioner of Education contending that [1] his position was improperly excessed in violation of §135.4 of the Commissioner’s regulations, which regulation requires all public school districts with a high school to employ a director of physical education and [2] he was terminated in bad faith because the district created several new positions after he was terminated. He asked the Commissioner of Education to direct that the School Board reinstate him to his former position, with back pay and benefits. 

In response, the School Board alleged that it had the statutory authority to abolish Petitioner’s position for sound economic and budgetary reasons and that it acted in good faith in its decision to abolish Petitioner’s position.  In addition, the School Board asserted that no new employee has been hired to replace Petitioner and that, instead, the his duties had been distributed "among three long-standing employees; none of who are performing more than 50% of Petitioner’s former duties."*

The Commissioner ruled that Petitioner request that he be reinstated to this prior position was moot as he had earlier been reinstated to his former position.**

However, the Commissioner declined to dismiss Petitioner's claim that the School Board acted arbitrarily and “without a rational basis” in abolishing his position. With respect to the merits of this claim, the Commissioner noted that it was "well-settled that the authority to create and/or abolish positions rests with the board of education, which may abolish and/or consolidate positions for sound economic reasons, so long as the decision is not motivated by bad faith."

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 the superintendent said that the decision to abolish Petitioner’s position was driven by budgetary constraints and her affidavit explained that "the district paid three current administrators a small stipend to carry out a portion of Petitioner’s former duties, instead of paying Petitioner’s high salary, which resulted in a cost savings to the district of approximately $144,975." The School Board contended that it is permissible for a board of education, acting in good faith, to abolish a position for economic reasons and fractionalize its duties among multiple other existing positions.

The Commissioner ruled that Petitioner [1] failed to refute respondent’s assertion that his position was abolished in order to realize cost savings from fractionalization of his duties and [2] failed to demonstrate that by abolishing the Director of Athletics and Physical Education position, the School Board violated 8 NYCRR §135.4(c)(4)(iii).

The Commissioner said that the record indicated that the school district continued to employ a Director of Physical Education [40%] following the abolition of Petitioner’s position, ruling that this complied with this regulation.  The Commissioner commented that "even if more than 50% of the duties of Petitioner's former position involved his responsibilities as Director of Athletics and Physical Education, the regulation does not prescribe a particular percentage of duties that must be dedicated to the responsibilities of a Director of Physical Education."

Petitioner also alleged that the School Board acted in bad faith as evidenced by its creating new positions, including a Director of Social Studies, Director of Science, Technology and Engineering, Director of Science and an Assistant Superintendent for Special Education position.  

The Commissioner said that the burden of proving bad faith is on the party asserting it, and indicated that the fact that other new positions unrelated to Petitioner’s former position were created at the same time or after the abolition of a position for economic reasons does not in and of itself support finding that the School Board acted in bad faith. The Commissioner ruled that "[o]n the record before me, Petitioner has not met his burden of proving that his position was abolished in bad faith."

In addition, Petitioner did not establish that the duties of the new positions he cited were similar to those of his former position.  Rather the duties of Petitioner’s former position "were fractionalized and re-distributed among three current employees."  As Petitioner’s position was abolished for fiscal reasons and none of "the current three employees" were assigned more than 50% of the duties of his former position, the Commissioner found that the School Board had properly abolished his position, which action resulted in his being excessed and his name being placed on a preferred list.

* In Currier v Tompkins-Seneca-Tioga BOCES, 80 AD2d 979, the Appellate Division ruled that the reassignment of the work of the incumbent of an abolished position among five other (retained) employees, none being assigned more than 50% of the duties of the abolished position, was lawful.

** Petitioner was reinstated as Director of Athletics, Physical Education, Health and Chairperson District-wide Health and Safety Team from the relevant preferred eligible list effective August 31, 2015 

 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17142

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