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

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

Stack v City of Glens Falls, 2019 NY Slip Op 01286, Appellate Division, Third Department

The City of Glens Falls [City] served disciplinary charges upon one of its employees [Appellant]. The hearing officer had found Appellant guilty of two disciplinary charges and recommended termination as the penalty to be imposed. 

At a special meeting on October 3, 2016, the City's Common Council adopted the hearing officer's findings and imposed the recommended penalty of termination on Appellant. Subsequently a letter was sent to Appellant by the City's Mayor on October 11, 2016 reporting the Common Council's action. When Appellant filed an Article 78 petition in Supreme Court challenging the City's determination on February 10, 2017, the City moved to dismiss Appellant's petition as time barred.* Supreme Court grant the City' motion and Appellant appealed the ruling to the Appellate Division.

The Appellate Division reversed the lower court's ruling. Noting that a special proceeding such as the one brought by Appellant "must be commenced within four months after the determination to be reviewed becomes final and binding in its impact upon a petitioner", the court explained that the party asserting the statute of limitations defense must establish that clear notice of the determination was given to the petitioner "more than four months prior to" the commencement of his or her Article 78 proceeding. Further, any ambiguity in the communications claimed have constituted such notice "must be resolved in favor of the petitioner."

The Appellate Division's decision states in this instance neither the Appellant, who had been suspended without pay pending the outcome of the disciplinary proceedings, nor Appellant's attorney, received any notification of the City's determination. After learning from a newspaper reporter that the Common Council had held a special meeting on October 3, 2016 to consider the hearing officer's report and recommendation regarding the disciplinary action taken against Appellant, Appellant's attorney demanded to know Appellant's status. The City provided a newspaper article that described the determination and quoted Appellant's counsel as promising legal action.

In the words of the Appellate Division, "the confusion of [Appellant] and her counsel is evident in their emails during this period, with [Appellant] noting on October 7, 2016 the 'odd' absence of any 'word from City Hall about [her] status' and [her] counsel complaining to [the City Attorney] on October 11, 2016 that the City had still not provided 'any notification' of the determination and demanding to know [Appellant's] status." Appellant, in an affidavit, stated that "she was befuddled by [the City's] silence and did not realize that she had been terminated as of October 3, 2016 until she received the October 11, 2016 letter" from the Mayor.

The Appellate Division ruled that Appellant did not receive an "unambiguous" and "certain" final determination that would trigger the running of the statute of limitations for perfecting the filing of a CPLR Article 78 action until October 11, 2016. Accordingly, the Appellate Division said that what has been demonstrated is "uncertainty caused by [the City's] inaction that must be resolved against [the City]."

Finding that Appellant commenced this proceeding less than four months after receiving clear notice of the City's determination as reflected in the Mayor's letter dated October 11, 2016, the Appellate Division held that Appellant's Article 78 action was timely filed. Reversing the Supreme Court's decision on the law, the matter was remitted to the lower court to permit the City to serve an answer on Appellant within 20 days of the date of the Appellate Division's decision.

* As a general rule a statute of limitations for bringing a timely action begins to run when the party receives oral or written notice, or when the party knows or should have known, of the adverse determination.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_01286.htm

Some procedural consideration relevant to efforts to vacate an arbitration award

Some procedural consideration relevant to efforts to vacate an arbitration award

Yates v County of Nassau, 2019 NY Slip Op 01219, Appellate Division, Second Department

The employee [Respondent] in this action was terminated from his position with the County of Nassau [Nassau]. He filed a grievance challenged his dismissal pursuant to a collective bargaining agreement between Appellant and the Civil Service Employees Association and the matter proceeded to arbitration. The arbitrator [1] issued an "opinion and award" in 2013 and [2] about a year later issued a "final award" and [3] ultimately issued a "consent award" dated July 15, 2015.

In February 2017 Respondent initiated this CPLR Article 75 proceeding in an effort to vacate the final award and to "reopen" the 2013 opinion and award.* Nassau moved to dismiss Respondent's Article 75 petition, arguing that the proceeding was time-barred. The Supreme Court denied Respondent's petition, dismissing the proceeding as time-barred. Supreme Court, however then confirmed the "awards of the arbitrator" and Nassau appealed from so much of the Supreme Court's order as confirmed the three arbitration awards.

The Appellate Division said that the Supreme Court, after denying the petition and dismissing the proceeding as time-barred, should not have confirmed the three awards.

The court pointed out that:

1. Neither the Respondent nor Nassaucommenced a proceeding or moved to confirm any of the three awards;

2. Although CPLR 7511(e) provides, in relevant part, that "upon the denial of a motion to vacate or modify, [the court] shall confirm the award," this directive applies only where a party has filed an application to vacate or to modify an arbitration award and such action has been denied on the merits; and

3. Where the proceeding has been found to be time-barred, a court has no discretion to address the merits of the matter as to do so would have the practical effect of impermissibly extending the statutory time limitations set out in CPLR Article 75.

Finally, observed the Appellate Division, "to automatically confirm the three awards, when the proceeding to vacate/modify two of the awards is time-barred and there has been no application to confirm any of the awards, deprived  Nassau of an opportunity to object to confirmation."

* Respondent did not seek any relief from the 2015 consent award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01219.htm

A judge's vote in an unannounced opinion held not to survive his or her death

A judge's vote in an unannounced opinion held not to survive his or her death

Rizo v Yovino, 586 U. S. ____ (2019) [No. 18–272. Decided February 25, 2019]

Chief Judge of the United States Court Appeals for the Ninth Circuit Stephen Reinhardt wrote the court's en banc opinion in Rizo v Yovino. 

Judge Reinhardt, however, died on March 29, 2018 while the court's decision in the matter was not announced until April 9, 2018. A posthumous footnote in the opinion notes that "Prior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death."

By counting Judge Reinhardt’s vote, the Ninth Circuit deemed Judge Reinhardt’s opinion to be a majority opinion, thereby constituting a precedent that all future Ninth Circuit panels must follow.

The U.S. Supreme Court vacated the ruling, holding that should a judge vote and then die before the decision is announced, his or her vote with respect to the decision "does not count," explaining that a judge may change his or her position up to the moment when a decision is released.

Noting that "[w]ithout Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed," the Supreme Court ruled that:

1. "Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority; and

2. "That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death; and

3. "... federal judges are appointed for life, not for eternity."

The court granted the then pending petition for certiorari, vacated the Ninth Circuit's decision in Rizo v Yovino and remand the case "for further proceedings consistent with this opinion."  

The decision is posted on the Internet at:

https://www.supremecourt.gov/opinions/18pdf/18-272_4hdj.pdf

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

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

Joyce v New York City Dept. of Educ., 2019 NY Slip Op 01183, Appellate Division, First Department

In July 2012 the New York City Department of Education [DOE] rejected an educator's [Teacher] request for rescission of the resignation he had submitted in August 2011. Teacher the initiated an Article 78 action challenging DOE decision and in 2013 Supreme Court ruled in Teacher's favor directed DOE to accept Teacher's request for reinstatement. DOE appealed but the Appellate Division unanimously affirmed the Supreme Court's ruling.

For almost four years, however, DOE failed to reinstate Teacher, during which period there was litigation between the parties. However it was not until Teacher filed a motion for contempt did the Chancellor finally respond to, and deny, Teacher's request for reinstatement, apparently in consideration of Teacher's "unsatisfactory year-end performance rating for the 2010-2011 academic year."

To further confound the situation, Teacher's unsatisfactory year-end performance rating apparently relied on by the Chancellor was ultimately annulled by the Appellate Division in May of 2018 [see Matter of Joyce v City of New York, 161 AD3d 488].

Under the circumstances, the Appellate Division said that it found that "good faith and fairness demand that a decision on a request for rescission of resignation pursuant to Chancellor's Regulation C-205(29) be made within a reasonable time." In so doing, the court rejected DOE's "suggestion that the Chancellor has the discretion to wait more than three years before making such a decision, without providing a reason for the delay."

Noting that Supreme Court had directed DOE, in an order issued in May 2013, to follow its own stated procedure by accepting the rescission letter and reinstating Respondent, subject to the Chancellor's approval as provided in the regulation, the Appellate Division held that DOE's delay "was unacceptably long and effectively operated to subvert the court's order."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01183.htm

Disciplinary settlement agreements are typically subject to "narrow construction"

Disciplinary settlement agreements are typically subject to "narrow construction"

Marine Engineers' Beneficial Assn. v City of New York, 2019 NY Slip Op 01327, Appellate Division, First Department

The term "narrow construction" used to describe the application of a law, rule or regulation based on a literal and narrow interpretation of the text of the provision. Marine Engineer's is an example of "narrow construction" in the interpretation and application of the terms and conditions set out in  a disciplinary settlement agreements.

A Chief Marine Engineer [CME] of a Staten Island ferryboat was found asleep on duty during his shift. The CME's union and the City of New York [City] entered into an agreement to settle the matter in which the CME agreed to a 30-day suspension without pay "in full satisfaction of the disciplinary matter."

Upon returning to work following the suspension without pay, the CME was told that he could not work as a Chief Marine Engineer aboard vessels in service and could not bid for job assignments in his title. Although CME retained his CME title and hourly rate of pay for regular and overtime duty, the number of overtime hours available to him with respect to his assignments in the lower title to which he was permitted to bid was limited. CME objected to the City's action and ultimately the union submitted the matter to arbitration.

The arbitrator found that the City's restricting CME's bidding rights after his suspension constituted a de factodemotion and violated the section of the controlling collective bargaining agreement that provided as follows:

"Per annum Licensed Officers shall have the right to bid for jobs on the basis of seniority. Such bid will be permanent for one year. Changes may be made before the expiration of the year by mutual consent of the Licensed Officers, subject to prior approval by the Employer. Such approval shall not be unreasonably withheld."

City filed an appeal pursuant to CPLR Article 75 seeking an order vacating the arbitration award. Supreme Court denied the City's motion and granted the union's motion to confirm the award. Subsequently the Appellate Division unanimously affirmed the Supreme Court's rulings.

The City had contended that the arbitration award, which found that the CME had the right to bid and work as a full-duty CME without regard to the incident that gave rise to the settlement agreement, violated public policy with respect to maritime passenger safety.

The Appellate Division, citing Matter of Local 333, United Mar. Div., Intl. Longshoreman's Assn., AFL-CIO v New York City Dept. of Transp., 35 AD3d 211, rejected this argument, explaining that the City's safety concerns, "albeit important, are not 'embodied in constitutional, statutory or common law [that] prohibit a particular matter from being decided or certain relief from being granted by an arbitrator.'"

The court also rejected City's claim that its action was consistent with its "management prerogative pursuant to New York City Administrative Code §12-307(b) as well as its reliance on 18 USC §1115 [Misconduct or neglect of ship officers], explaining neither could be read "to bar or add to the actions taken by the parties' representatives to resolve this disciplinary matter."

Another decision illustrating limitations imposed by a disciplinary settlement agreement with respect to action by the appointing authority is Taylor v Cass, 122 A.D.2d 885.

The disciplinary settlement agreement controlling in Taylor provided that the appointing authority could summarily terminate the employee without a disciplinary hearing if, in the opinion of Taylor's superior, Taylor's "job performance was adversely affected by his intoxication on the job during the next six months.”

Taylor was terminated during this six month period without a hearing "for failing to give a fair day’s work and sleeping during scheduled working hours." However, there was no allegation that Taylor had been intoxicated on the job listed among the reasons alleged for his being summarily terminated from his position by the appointing authority.

Taylor challenged his termination and won reinstatement with back salary. The Appellate Division said that Taylor's dismissal without notice and hearing was improper because he had not been terminated for the sole reason specified in the disciplinary settlement agreement - "intoxication on the job during the next six months."

The CME's decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01327.htm

Amendment to Title 22 NYCRR codifying the practice that a witness may have counsel present during a Commission hearing

State Commission on Judicial Conduct

PROPOSED RULE MAKING - NO HEARING(S) SCHEDULED

Counsel for Witnesses at Hearings

Source: New York State Register, item I.D. No. JDC-08-19-00006-P

PURSUANT TO THE PROVISIONS OF THE

State Administrative Procedure Act,

NOTICE is hereby given of the following proposed rule:

Proposed Action: Addition of §7000.6(i)(3) to Title 22 NYCRR. Statutory authority: Judiciary Law, §42(5)

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.

Text of proposed rule and any required statements and analyses may be obtained from: Marisa E. Harrison, Commission on Judicial Conduct, Corning Tower, Suite 2301, Empire State Plaza, Albany, New York 12223, (518) 453-4600, email: harrison@cjc.ny.gov

Data, views or arguments may be submitted to Marisa E. Harrison at harrison@cjc.ny.gov

Public comment will be received until: 60 days after publication of this notice.

Regulatory Impact Statement

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.

Workers' Compensation Leave is not an available to an employee who has suffered a permanent job related injury or disease

Workers' Compensation Leave is not an available to an employee who has suffered a permanent job related injury or disease

OATH Index No. 1774/18

The appointing authority served disciplinary charges against an employee pursuant to §75 of the Civil Service Law alleging "medical incompetence  based on the employee's  "excessive use of sick leave due to job-related injuries." The penalty sought: termination.

The employee argued that the disciplinary charges should be dismissed and that the matter  converted to a disability leave proceeding within the meaning of §71 of the Civil Service Law. §71 mandates that leaves of absence, typically referred to as Workers' Compensation Leave, is to be given to an individual absent from work as the result of the individual having suffered an occupational illness or disease for specified cumulative limited periods of time "unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position." [Emphasis supplied.]

Noting that the employee had filed for "permanent disability retirement" benefits, OATH Administrative Law Judge Faye Lewis concluded that §71 leave was not an available option under the circumstances and that the appointing authority could proceed with disciplinary action.*

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.

* In Dickinson v New York State Unified Court System, 99 AD3d 569, the Appellate Division unanimously confirmed the termination of an employee found guilty of “certain disciplinary charges” that alleged, among other things, incompetency due to excessive absenteeism and lateness. As to the penalty imposed, dismissal, the court said that the penalty did not shock its sense of fairness as “[b]eing present at work is an essential job function.”

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1774.pdf

NYC Commission on Human Rights adopts new rules addressing transgender, non-binary, and gender non-conforming individuals discrimination

NYC Commission on Human Rights adopts new rules addressing transgender, non-binary, and gender non-conforming individuals discrimination

Source: Amanda M. Gomez, Esq., Employment, Labor & Workforce Management at the  New York office of Epstein Becker Green. 

The New York City Commission on Human Rights (the “Commission”) has adopted new rules (“Rules”) which establish broad protections for transgender, non-binary, and gender non-conforming individuals. The Rules, which define various terms related to gender identity and expression, re-enforce recent statutory changes to the definition of the term “gender,” and clarify the scope of protections afforded gender identity status under the New York City Human Rights Law. New York Statealso just added gender identity and expression as protected classifications under the state Human Rights Law, following the adoption of the Gender Expression Non-Discrimination Act.

The text of Ms.Gomez's article is posted on the Internet at"

https://www.natlawreview.com/article/nyc-commission-human-rights-adopts-rules-establishing-broad-interpretation-laws?utm_content=21dff93cbf4b8883f6a723f068dbc0fa&utm_campaign=Labor%20and%20Employment%20News2-21-2019&utm_source=Robly.com&utm_medium=email

Challenging the credibility of the witness

Challenging the credibility of the witness

Ghastin v New York City Dept. of Educ., 2019 NY Slip Op 01152, Appellate Division, First Department

The Plaintiff in this action asked Supreme Court to vacate an Education Law §3020-a arbitrator's award that found the individual guilty of certain disciplinary charges and imposed a penalty of suspension without pay for four weeks. Supreme Court granted the New York City Department of Education's motion to dismiss Plaintiff's petition and Plaintiff appealed. 

The Appellate Division sustained the lower court's ruling.

Plaintiff had objected to the hearing officer's "credibility determinations" with respect to the testimony of the Department's witnesses at the hearing. The Appellate Division said that the fact that the hearing officer found the testimony of the Department's witnesses more credible than Plaintiff's testimony does not serve to demonstrate that the hearing officer's determination was arbitrary and capricious.*

As to the penalty imposed by the hearing officer, the court observed that Plaintiff  failed to demonstrate how a four-week suspension without pay is so shockingly disproportionate to the offenses involved that it constitutes an abuse of discretion "given her proven misconduct which could have resulted in violence."

Noting that the Plaintiff had some 19 years of service at the time of the hearing with no known disciplinary record before the incident, the Appellate Division said that the record shows that Plaintiff failed to acknowledge the gravity of her misconduct, continued to deny any wrongdoing and showed a lack of remorse for her actions.

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.

* The Appellate Division described the testimony of the Department's witnesses as "interlocking and closely corroborating".

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01152.htm

Reports and audits issued by New York State Comptroller Thomas P. DiNapoli

On February 15, 2019 New York State Comptroller Thomas P. DiNapoli announced the following audits were issued.

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Procurement of Electricity and Natural Gas through Aggregators (2018MS-5)

Local governments and school districts did not always evaluate procurement options or make comparisons to benchmark rates to ensure they received the lowest prices for electricity and natural gas. Five of seven entities reviewed (city of Albany; counties of Broome, Cortland and Oneida; and North Syracuse Central School District) spent approximately $2.4 million more for electricity than the benchmark rate used by auditors.

Bainbridge Fire District – Board Oversight (Chenango County)

The board established adequate controls to help safeguard assets, and the legally required procurement policy, investment policy and code of ethics were in place. The treasurer’s financial records and reports accurately and properly accounted for all financial activities. Although the board did not perform a formal annual audit of the treasurer’s records, it reviewed reports each month and performed a thorough audit of claims before they were paid to ensure they were supported and funds were used for legitimate expenditures.

Town of Hyde Park – Payroll and Time Records (Dutchess County)

Controls over payroll and time records were adequate to ensure the accuracy of payroll and time records.  While the town has a good system in place, it could be further improved by filing approved time sheets electronically instead of printing them out only to have paper copies on file in order to save the time and expense of printing. 

Town of Lyons – Real Property Tax Exemptions Administration (Wayne County)

The assessor granted a total of 633 non-New York State School Tax Relief Program property tax exemptions for non-municipal owned property on the 2017 assessment roll, collectively reducing the town’s 2018 taxable assessed value by more than $34 million. The assessor granted exemptions without applications, renewal forms or supporting documentation and did not correctly calculate granted exemptions.

Town of Moravia – Real Property Tax Exemptions Administration (Cayuga County)

The assessor granted 306 non-NYS School Tax Relief Program exemptions on non-municipal owned property on the 2017 assessment roll, which collectively reduced the town’s 2018 taxable assessed value by more than $12 million. Auditors reviewed 85 exemptions totaling $9.3 million and identified issues with 68 exemptions totaling $6.9 million (74 percent). The files related to the 85 granted exemptions and found that 68 exemptions (80 percent) totaling $6.9 million in town-exempt assessed value lacked one or more required supporting documents to determine eligibility or verify the accuracy of the exemption calculation.

Town of Solon – Financial Management (Cortland County)

The board did not adopt a fund balance and reserve policy or create comprehensive multiyear financial and capital plans. From Dec. 31, 2014 through Dec. 31, 2017, general fund unrestricted fund balance increased by $106,230 (110 percent). Over the same three-year period, highway fund unrestricted fund balance increased by $50,007 (24 percent).

On February 15, 2019 New York State Comptroller Thomas P. DiNapoli announced the following audits were issued.

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Procurement of Electricity and Natural Gas through Aggregators (2018MS-5)

Local governments and school districts did not always evaluate procurement options or make comparisons to benchmark rates to ensure they received the lowest prices for electricity and natural gas. Five of seven entities reviewed (city of Albany; counties of Broome, Cortland and Oneida; and North Syracuse Central School District) spent approximately $2.4 million more for electricity than the benchmark rate used by auditors.

Bainbridge Fire District – Board Oversight (Chenango County)

The board established adequate controls to help safeguard assets, and the legally required procurement policy, investment policy and code of ethics were in place. The treasurer’s financial records and reports accurately and properly accounted for all financial activities. Although the board did not perform a formal annual audit of the treasurer’s records, it reviewed reports each month and performed a thorough audit of claims before they were paid to ensure they were supported and funds were used for legitimate expenditures.

Town of Hyde Park – Payroll and Time Records (Dutchess County)

Controls over payroll and time records were adequate to ensure the accuracy of payroll and time records.  While the town has a good system in place, it could be further improved by filing approved time sheets electronically instead of printing them out only to have paper copies on file in order to save the time and expense of printing. 

Town of Lyons – Real Property Tax Exemptions Administration (Wayne County)

The assessor granted a total of 633 non-New York State School Tax Relief Program property tax exemptions for non-municipal owned property on the 2017 assessment roll, collectively reducing the town’s 2018 taxable assessed value by more than $34 million. The assessor granted exemptions without applications, renewal forms or supporting documentation and did not correctly calculate granted exemptions.

Town of Moravia – Real Property Tax Exemptions Administration (Cayuga County)

The assessor granted 306 non-NYS School Tax Relief Program exemptions on non-municipal owned property on the 2017 assessment roll, which collectively reduced the town’s 2018 taxable assessed value by more than $12 million. Auditors reviewed 85 exemptions totaling $9.3 million and identified issues with 68 exemptions totaling $6.9 million (74 percent). The files related to the 85 granted exemptions and found that 68 exemptions (80 percent) totaling $6.9 million in town-exempt assessed value lacked one or more required supporting documents to determine eligibility or verify the accuracy of the exemption calculation.

Town of Solon – Financial Management (Cortland County)

The board did not adopt a fund balance and reserve policy or create comprehensive multiyear financial and capital plans. From Dec. 31, 2014 through Dec. 31, 2017, general fund unrestricted fund balance increased by $106,230 (110 percent). Over the same three-year period, highway fund unrestricted fund balance increased by $50,007 (24 percent).

Tenure may be acquired by estoppel

Tenure by estoppel 

Wilson v Department of Educ. of the City of N.Y., 2019 NY Slip Op 01161, Appellate Division, First Department

An employee may attain tenure by estoppel as the result of the appointing authority's failing to provide the individual with timely notice that his or her services will not be continued beyond his or her probationary period.*

Citing McManus v Board of Educ. of Hempstead Union Free School District, 87 NY2d 183, the Appellate Division affirmed a Supreme Court's ruling that annulled New York City Department of Education's [DOE] discontinuing Petitioner's employment and directed the educator's reinstatement to her former position as a tenured teacher with back salary.**

DOE had appointed Petitioner as a teacher in 2011 and her initial 3-year probationary period was set to expire in 2014. Prior to the date on which Petitioner probationary period was to expire, she and DOE entered into a written agreement extending her probation through September 8, 2015. 

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 June 15, 2016, DOE notified Petitioner that "it was discontinuing her probationary service as of July 15, 2016."

The Appellate Division explained that a probationary teacher typically acquires tenure by estoppel when a school board fails to take the action required by law to either [1] grant or deny tenure to the individual prior to the expiration of the teacher's probationary term and [2] accepts the continued services of an educator in his or her position. Here, said the Appellate Division, Petitioner obtained tenure by estoppel at the end of her extended probationary period as the result of DOE's failure to deliver the notice of it's decision to terminate her on or before September 8, 2015.

In addition, the court noted that DOE failed to advise Petitioner that the temporary assignment to perform clerical duties would not count toward her satisfying her probationary term of service. Accordingly, Petitioner's decision to accept the temporary reassignment did not "serve to disrupt" Petitioner's  probationary period nor did it result in an automatic extension  of her probationary term for a period equal in length to the period of her service in a clerical capacity.

Having attained tenure in her position as an educator by estoppel, which is sometimes referred to as tenure by acquiescence or tenure by default, Petitioner could only be removed from her position for cause, after notice and hearing.

In contrast, for the purposes of determining the duration of the probationary period, if a teacher is absent during his or her probationary period, the appointing authority may take appropriate action to extend the probationary period for a period of time equal to such absence.

The same is true with respect to absence during the probationary period of employees in the classified service.*** However, with respect to employees in the classified service, the appointing authorities may be given discretion to waive a limited period of such absence pursuant to the rules of the responsible civil service commission. Otherwise the minimum and maximum periods of the probationary term of the employee are extended by the number of workdays of such absences not counted as time served in the probationary term” [see, for example, 4 NYCRR 4.5(g), “Absence during probationary term”].

Another element to consider is the extension of the probationary period in the event an employee is given a “light duty” or some other alternate assignment while serving his or her probationary period [see Boyle v Koch, 68 NY2d 60].

* If the notice of termination of the employee's service is timely given, the last day of service need not coincide with the last day of his or her probationary period. If the termination date of service of the individual is made effective within a reasonable time of the last day of his or her probationary period, such as to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel as the result of the “carryover” [see Mendez v Valenti, 101 AD2d 612].

** The Supreme Court's ruling was subsequently amended to provide that amount earned by the Plaintiff from a specified date to a later specified date would be deducted from the amount of back pay owed to Plaintiff by the Department of Education.

*** The positions of teachers and school administrators are typically in the Unclassified Service [see Civil Service Law §35, subdivisions g through and including k].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01161.htm

National emergency at the US-Mexico border declared

National emergency at the US-Mexico border declared

Source: New York Time news report, February 12, 2019

[This post was updated February 18, 2019]

On February 12, 2019 the New York Times published a news article reporting that President Trump "declared a national emergency at the border ... to access billions of dollars to build a border wall [and] would sign the declaration to protect the country from the flow of drugs, criminals and illegal immigrants coming across the border from Mexico, which he characterized as a profound threat to national security."

A joint statement concerning the Emergency Powers Act by members of Western Michigan University Cooley Law School’s Constitutional Law Department is set out below:

“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.”    

Constitutional Law Professors at WMU-Cooley include:

Professor Gerald Tschura – Auburn Hills campus

Assistant Dean and Professor Devin Schindler – Grand Rapids campus

Associate Dean and Professor Michael McDaniel – Lansing campus

Professor Brendan Beery – Tampa Bay campus

The Brennan Center for Justice at New York University School of Law has assembled a listing of relevant provisions of federal law that may be cited as authority for actions taken in the event of a declaration of a national emergency is issued and has posted this information on the Internet at https://www.brennancenter.org/analysis/emergency-powers.

The Brennan Center has summarized the basics with respect to a President's declaring a national emergency as follows:

50 USC §§1601-1651 - National Emergencies Act (1976): "With respect to acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency”.

The Center's analysis continues: "The National Emergencies Act imposes procedural requirements on the President’s exercise of emergency powers. It has governed the declaration of multiple emergencies. For a complete list of emergencies declared under this statute, see here."

  50 U.S. Code §1622 - National emergencies

The provisions of 50 U.S. Code §1622, addressing the termination of a national emergency, are set out below:

(a) Termination methods

Any national emergency declared by the President in accordance with this subchapter shall terminate if—

(1) there is enacted into law a joint resolution terminating the emergency; or

(2) the President issues a proclamation terminating the emergency.

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) any action taken or proceeding pending not finally concluded or determined on such date;

                (B) any action or proceeding based on any act committed prior to such date; or

                (C) any rights or duties that matured or penalties that were incurred prior to such date.

(b) Termination review of national emergencies by Congress

Not later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, each House of Congress shall meet to consider a vote on a joint resolution to determine whether that emergency shall be terminated.

(c) Joint resolution; referral to Congressional committees; conference committee in event of disagreement; filing of report; termination procedure deemed part of rules of House and Senate

(1) A joint resolution to terminate a national emergency declared by the President shall be referred to the appropriate committee of the House of Representatives or the Senate, as the case may be. One such joint resolution shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee, unless such House shall otherwise determine by the yeas and nays.

(2) Any joint resolution so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents) and shall be voted on within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays.

(3) Such a joint resolution passed by one House shall be referred to the appropriate committee of the other House and shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee and shall thereupon become the pending business of such House and shall be voted upon within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays.

(4) In the case of any disagreement between the two Houses of Congress with respect to a joint resolution passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such joint resolution within six calendar days after the day on which managers on the part of the Senate and the House have been appointed. Notwithstanding any rule in either House concerning the printing of conference reports or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than six calendar days after the conference report is filed in the House in which such report is filed first. In the event the conferees are unable to agree within forty-eight hours, they shall report back to their respective Houses in disagreement.

(5) Paragraphs (1)–(4) of this subsection, subsection (b) of this section, and section 1651(b) of this title are enacted by Congress—

             (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

                (B) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.

(d) Automatic termination of national emergency; continuation notice from President to Congress; publication in Federal Register

Any national emergency declared by the President in accordance with this subchapter, and not otherwise previously terminated, shall terminate on the anniversary of the declaration of that emergency if, within the ninety-day period prior to each anniversary date, the President does not publish in the Federal Register and transmit to the Congress a notice stating that such emergency is to continue in effect after such anniversary.

(Pub. L. 94–412, title II, § 202, Sept. 14, 1976, 90 Stat. 1255; Pub. L. 99–93, title VIII, § 801, Aug. 16, 1985, 99 Stat. 448.)