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N.B. §22 of the New York State General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL follows this protocol.
February 28, 2019
Notice of the final administrative decision must be unambiguous and properly delivered in order to triggering the running of the statute of limitations for bringing an Article 78 action
February 27, 2019
February 26, 2019
Judge Reinhardt, however, died on
Where a regulation permits an employee to rescind his or her resignation the appointing authority's decision should made within a reasonable period of time
February 25, 2019
Disciplinary settlement agreements are typically subject to "narrow construction"
February 23, 2019
Amendment to Title 22 NYCRR codifying the practice that a witness may have counsel present during a Commission hearing
Subject: Counsel for witnesses at hearings.
Purpose: To codify the practice that a witness may have legal counsel present during a commission hearing. Text of proposed rule: A new paragraph of subdivision (i) of §7000.6 is added to read as follows: (3) At a hearing, counsel for a witness may be present while his or her client is testifying and may request permission of the referee to consult with the client, but may not object to questions, examine or cross-examine witnesses or otherwise participate in the proceedings.
1. Statutory authority: Judiciary Law, §42(5).
2. Legislative objectives: The proposed change would clarify that counsel for a witness may be present while his or client is testifying at a Commission hearing, and may request permission of the referee to consult with the client, but may not object to questions, examine or cross-examine witnesses or otherwise participate in the proceedings.
3. Needs and benefits: The proposal seeks to clarify ambiguities and better reflect actual Commission practice that allows a witness to have counsel present during Commission hearings.
February 22, 2019
Workers' Compensation Leave is not an available to an employee who has suffered a permanent job related injury or disease
As the evidence in the record indicated that the employee had been absent for almost "300 sick days over a 21 month period," which Judge Lewis found was sufficient to establish an excessive use of sick leave, the ALJ found the employee guilty of the charges and specifications and recommended that the penalty of dismissal be imposed by the appointing authority.
The decision is posted on the Internet at:
February 21, 2019
NYC Commission on Human Rights adopts new rules addressing transgender, non-binary, and gender non-conforming individuals discrimination
Another issue raised by Plaintiff: Did the hearing officer have jurisdiction to decide the matter. However, Plaintiff first raised this issue in the petition filed in Supreme Court. The Appellate Division, citing Matter of DeMartino v New York City Department of Transportation, 67 AD3d 479 said that raising the question of the jurisdiction of the hearing officer was of "no moment" as Petitioner is deemed to have "waived the issue" when it was not raised in the course of the arbitration.
February 20, 2019
February 19, 2019
Tenure by estoppel
In March 2015, DOE temporarily reassigned Petitioner to perform certain clerical duties. Significantly, DOE did not advise Petitioner concerning its decision regarding her status as a probationary teacher upon her reassignment. In March 2016, DOE discontinued Petitioner's clerical assignment and directed her to resume performing her teaching duties. The Appellate Division's decision reports that after resuming her teaching duties Petitioner was involved in an incident with her school principal and she "took an unapproved leave of absence." On
February 15, 2019
A joint statement concerning the Emergency Powers Act by members of
“Over the years, Congress has delegated expansive powers to the President to declare national emergencies. This delegation of emergency powers poses a threat to the delicate separation of powers between Congress and the President set forth in the Constitution. The President’s declaration of an “emergency” allowing him to fund the border wall is the latest test of the emergency powers statute and will surely lead to a dramatic expansion of presidential powers if left unchecked.”
Any national emergency declared by the President shall be terminated on the date specified in any joint resolution referred to in clause (1) or on the date specified in a proclamation by the President terminating the emergency as provided in clause (2) of this subsection, whichever date is earlier, and any powers or authorities exercised by reason of said emergency shall cease to be exercised after such specified date, except that such termination shall not affect—
(A) as an exercise of the rulemaking power of the Senate and the House of Representatives, respectively, and as such they are deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in the House in the case of resolutions described by this subsection; and they supersede other rules only to the extent that they are inconsistent therewith; and
Penalty of termination imposed on a employee found to have been conducting private business activities "on company time"
The decision is posted on the Internet at:
February 14, 2019
*** §36 of the Public Officer Law sets out the procedures for the removal of a town, village, improvement district or fire district officer other than a justice of the peace. Typically, such officers may be removed from office for misconduct, maladministration, malfeasance or malversion in office by the filing of an application for such removal with the Appellate Division have jurisdiction.
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