School District's motion to dismiss the causes of action alleging a student was sexually molested by an employee of the school district denied

In this action to recover damages, the complainant [Plaintiff] alleged that he was sexually molested by his guidance counselor, who was an employee or special employee of the defendant [School District].  Supreme Court denied School District's motion to dismiss the causes of action alleging "negligence, gross negligence, negligent hiring, retention, supervision, and direction, and breach of fiduciary duty insofar as asserted." 

The School District appealed the Supreme Court's ruling.

Explaining that on a motion to dismiss for failure to state a cause of action under CPLR §3211(a)(7) the Appellate Division said that a court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" and denied School District's appeal.*

The amended complaint alleged, among other things, that the School District had prior notice of the guidance counselor's propensity to sexually molest students and that the School District "nevertheless permitted the guidance counselor to meet one-on-one with students, including the Plaintiff, and that the School District thereby negligently failed to prevent the guidance counselor from sexually molesting the Plaintiff."

Further, said the Appellate Division, Supreme Court properly found that the Plaintiff sufficiently pleaded causes of action alleging negligence, gross negligence, and negligent hiring, retention, supervision, and direction, citing Moskowitz v Masliansky, 198 AD3d 637 and other decisions.

* The Appellate Division noted "[c]auses of action alleging negligent hiring, negligent retention, or negligent supervision are not statutorily required to be pleaded with specificity".

Click HEREto access the Appellate Division's decision.

Government Technology Webinars scheduled to be held during the week ending September 3, 2022

Wednesday, August 31 | 1:00pm Eastern

Enhancing Voice and Digital Engagement with Communications Platform as a Service Solutions 

The ability to reach and respond to constituents and students where they are, on whatever device they’re using, in real time is a differentiating factor that elevates the engagement experience for state and local government and education. Communications Platform as a Service (CPaaS) solutions help agencies build upon their existing applications to create access to all the popular communication methods the public wants to use. Join us for a 30-minute webinar on how organizations can use CPaaS solutions to integrate new communications tools into their workflow quickly and easily.

Click here to Register to attend 

 

Wednesday, August 31 | 2:00pm Eastern

Heightened Visibility is Key to Efficient Threat Detection and Risk Mitigation 

Local and state governments must constantly reevaluate their security strategies to ensure they’re up to the task of combatting today’s evolving threat landscape. Recent survey results demonstrate what agencies are most concerned about and what they are doing to mitigate risks. To unpack the results of the latest research, register to reserve your spot!

Click here to Register to attend 

 

To view upcoming and on-demand webinars, visit webinars.govtech.com.

For assistance with registration, contact Jeremy Smith, jsmith@erepublic.com (916) 932-1402 direct.

Application to remove an individual serving as "trustee and president" of the school board

An applicant sought to have the Commissioner of Education remove the President of the school board for a number of reasons including "consistently arguing with parents at almost every [board] meeting” and for "abstaining from a school board vote."

Commissioner Rosa dismissed the appeal for two procedural reasons. 

First Dr. Rosa ruled that the application must be dismissed for improper service.

§275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. In this instance the Commissioner found that the record indicates that Petitioner failed to properly serve the petition upon the President, who is the sole respondent in the application but left the petition with a “receptionist” at the school board’s district office whom the Petitioner knew to be “responsible for receiving district mail.” §275.8(a), however, of the Commissioner’s regulations applicable to removal proceedings pursuant to Commissioner’s regulation §277.1, requires that the petition be personally served upon each named respondent. 

The President contended that she was never personally served with a copy of the petition and Petitioner did not challenge this contention.  Accordingly the Commissioner ruled that the petition "must be dismissed for improper service," citing Decision of the Commissioner of Education No. 17,391. 

In addition Dr. Rosa held that the application must be dismissed for lack of the specialized notice required by §277.1 (b) of the Commissioner’s regulations. This regulation, said the Commissioner, sets out "the specific notice required for removal applications pursuant to Education Law §306, which is distinct from the notice required under §275.11(a) for appeals pursuant to Education Law §310."

The Commissioner explained that the notice of petition "secures jurisdiction over the intended respondent and alerts the respondent that he or she must appear in the removal proceeding and answer the allegations contained in the application." Accordingly, the Commissioner held that such situations "a removal application that does not include the specific notice required by 8 NYCRR 277.1(b) is fatally defective and must be denied."

Click HEREto access the text of the Commissioner's decision.

Tax Information for Federal, State and Local Governments

Internal Revenue Service [IRS] increases mileage rate for remainder of 2022 

The IRS announced an increase in the optional standard mileage rate for the final 6 months of 2022 in recognition of recent gasoline price increases. Taxpayers may use the optional standard mileage rates to calculate the deductible costs of operating an automobile for business and certain other purposes, effective July 1, 2022. 

 

2023 inflation adjusted amounts for Health Savings Accounts 

Revenue Procedure 2022-24 provides the 2023 inflation adjusted amounts for Health Savings Accounts (HSAs) as determined under Section 223 of the Internal Revenue Code and the maximum amount that may be made newly available for excepted benefit health reimbursement arrangements (HRAs) provided under Section 54.9831-1(c)(3)(viii) of the Pension Excise Tax Regulations.

For calendar year 2023, the annual limitation on deductions for:

Individual with self-only coverage under a high deductible health plan is $3,850;

Individual with family coverage under a high deductible health plan is $7,750.

 

Election workers: Reporting and withholding

Each election year, thousands of state and local government entities hire workers to conduct primary and general elections. To understand the correct tax treatment of these workers, employers need to be aware of specific statutes that apply to them as well as whether they are covered by a Section 218 Agreement.

Who are election workers? Election workers are individuals hired by government entities to perform services at polling places in connection with national, state and local elections. An election worker may be referred to by other terms and titles, for example, poll worker, moderator, machine tender, checker, ballot clerk, voting official, polling place manager, absentee ballot counter or deputy head moderator. These workers may be employed by the government entity exclusively for election work or may work in other capacities as well.

Compensation paid to election workers is includible as wage income for income tax purposes and may be treated as wages for Social Security and Medicare (FICA) tax purposes.

Election workers may be compensated by a set fee per day or a stipend for the election period. The election period may include attending training or meetings prior to and after the election. Election workers may also be reimbursed for their mileage or other expenses. To be excludable from wages, expense reimbursements must be made under an accountable plan.

For more Information see Election Workers: Reporting and Withholding.

 

 

 

Audits and reports issued by the New York State Comptroller during the week ending August 19, 2022

New York State Comptroller Thomas P. DiNapoli announced the audits listed below for School Districts and Municipalities issued during the week ending August 19, 2022

Click on the text highlighted in color to access the complete audit report.

School District

Indian River Central School District – Financial Condition Management (2022M-92) The Board and District officials did not adequately manage the District’s financial condition and the current findings and recommendations are similar to our November 2016 Financial Condition audit report. While the Board and officials made some progress in implementing the prior audit recommendations, they must continue to improve their management of financial condition, otherwise more taxes will be levied than are needed to fund operations.

Click here to read complete report - pdf

 

Minisink Valley Central School District did not maximized Medicaid reimbursements -- The District did not maximize Medicaid reimbursements by claiming for all eligible Medicaid services provided.

• Claims were not submitted for reimbursement for at least 3,083 eligible services totaling $187,932. Had these services been claimed, the District would have realized revenues totaling $93,966 (50 percent of the Medicaid reimbursements).
  
• Between July 1, 2020 and December 31, 2021, the District paid a third-party vendor (vendor) $54,996 to process the District’s Medicaid claims. However, officials did not provide the vendor with all of the documentation needed for the vendor to properly file all Medicaid claims and did not adequately oversee the vendor to ensure Medicaid reimbursements were maximized.

Click here to read complete report - pdf

Wynantskill Union Free School District – Purchasing (2022M-85)

District officials could not always support competition was sought when purchasing goods and services that fell below the statutory bidding thresholds. Officials did not:

• Develop clear guidance in procedures to seek competition for purchasing goods and services that were not required to be competitively bid.
• Follow the District’s purchasing policy for 25 purchases (83 percent) totaling $53,883.
• Adequately document they sought competition for 17 purchases totaling $27,231. Further, contract award and pricing information was lacking on seven purchases made through State contract vendors, and the District should have paid $1,028 less for three purchases.

Click here to read complete report - pdf

 

Municipalities

Town of Hempstead – Information Technology Access Controls (2021M-158)

Town officials did not establish adequate access controls to help safeguard IT systems against unauthorized access.

The Board and Town officials did not:

• Develop and adopt comprehensive IT policies and procedures addressing key IT security issues, such as breach notification, and those related to acceptable computer use, protection of PPSI, application and network controls, password security, and user access controls.
• Provide IT security awareness training to all IT users, so they understand IT security measures and their roles in safeguarding data and IT assets.

In addition, sensitive IT control weaknesses were communicated confidentially to officials.

Click here to read complete report - pdf

 

Applying the Rule of Three in selecting an individual from an eligible list for appointment to a position in the competitve class

How many names must be certified for appointment from an eligible list established as the result of a competitive examination to a position in the Competitive Class?

Prior to 1900 New York State civil service appointments from eligible lists were based on the rule of one, also referred to as "the rule of the list." This rule mandated the appointment of the candidate standing highest on the eligible list certified by the responsible civil service commission.

In 1900 the "rule of one" was struck down by the Court of Appeals as unconstitutional. The Court ruled that "if the civil service commissioners have power to certify to the appointing officer only one applicant of several who are eligible and whom they have, by their own methods, ascertained to be fitted for a particular position, and their decision is final ... then the civil service commission becomes and is the actual appointing power" [People v Mosher, 163 NY 32].

This decision prompted establishment of the so-called "rule of three," currently set out in Section 61.1 of the Civil Service Law. Section 61.1 permits the appointing authority to select from among the three candidates who stand highest on the eligible list and are interested in the appointment. The rule of three was held valid by the Court of Appeals in People v Gaffney, 201 NY 535, a case decided in 1911.

In applying the Rule of Three, tie scores allow the appointing authority to make its selection from among far more than three eligible candidates. For example, if the eligible list consists of one candidate having a score of 100, a second with a score of 99 and 60 candidates each with a score of 98, all 62 candidates will be deemed "reachable for appointment."

On the other hand, if there is but one vacancy to fill and 60 individuals attained a score of 100 while one eligible had a score of 99 and another eligible had a score of 98, the appointing authority could only select from among the "top 60" eligible candidates and may not consider either [or both] of the two lower scoring candidates for the appointment "until the 60 name certification is exhausted," i.e. reduced to two names or to one name.

Further, under certain circumstance, Section 60.1 of the Civil Service Law permits the responsible civil service commission to combine two eligible lists in order to provide a "mandatory list" -- a list consisting of at least three qualified candidates willing to accept appointment to the position.

Although courts have ruled that a civil service commission cannot mandate a rule of one, the appointing authority itself may elect to be bound by such a rule. This has not been viewed as offending public policy because the appointing authority has merely truncated its ability to exercise discretion with respect to selecting candidates for appointment. Such a truncation is typically the reflection of a term or condition set out in a Collective Bargaining Agreement or a Memorandum of Understanding negotiated pursuant to Article 14 of the Civil Service Law, the so-called "Taylor Law".

There is, however, a provision in the Civil Service Law addressing "preferred lists; certification and reinstatement therefrom" which mandates appointments in accordance with the "Rule of One". Subdivision 2 of Section 81 of said law provides, in pertinent part, that "the names of persons on a preferred list shall be certified therefrom for reinstatement to a vacancy in an appropriate position in the order of their original appointments [emphasis supplied]." Further, Subdivision 4 of Section 81 provides that "no person suspended or demoted prior to the completion of his probationary term shall be certified for reinstatement until the exhaustion of the preferred list of all other eligibles thereon" and upon such reinstatement, "such probationer shall be required to complete his probationary term."

 

 

School Districts Share ‘Lesson Plan’ for Boosting Cybersecurity

On August 22, 2022, GOVTECH reported that "K-12 school districts’ collections of student data, array of digital systems and limited defense budgets are just some of the factors that make them tempting targets for cyber attackers," citing speakers during a FedInsider panel on August 21, 2022. 

GOVTECH noted that "active threat monitoring, security awareness training, vetted cloud vendors and other strategies can help reduce the dangers." 

In the words of GOVTECH, "Valuable student data, many digital systems and devices frequently shuttled between homes and schools make K-12 districts vulnerable to cyber attack. But there are plenty of ways districts can armor up." 

Click here to READ MORE.

Webinars for the week of August 22, 2022 offered by Government Technology

Monday, August 22, 2022 | 1:00pm Eastern

How video and image analytics are driving smarter operations

Video and image analytics gives government agencies the ability to collect up-to-date information in the field without human labor and then respond proactively if action is needed. As a case in point, the state of Oklahoma has recently taken advantage of video and image analytics to notify drivers that they need vehicle insurance. This fascinating use case has allowed Oklahoma to increase the number of insured drivers on the road without the use of traffic stops or other assistance from law enforcement. Join Government Technology for a discussion on how video and image analytics can improve your agency’s operations.

Click here to Register to attend

 

Thursday, August 25, 2022| 1:00pm Eastern

How to De-Risk Major ERP Migration

Transforming legacy ERP systems – major initiatives related to finance, human capital, supply chain processes and other key functions – helps governments become more efficient and effective. But too many ERP migrations end in failure. With the right approach and the right solutions – including industry-leading practices like process mining – agencies can ensure successful ERP migrations. During this webinar you'll learn best practices and top strategies for a seamless, successful transformation of legacy ERP systems.

Click here to Register to attend

 

Friday, August 26, 2022 | 2:00pm Eastern

Cloud-Based Data Interoperability: A Game-Changer for Emergency Communications

Recent research indicates emergency response leaders grapple with various challenges revolving around data on a regular basis. To overcome many of these hurdles, policies will have to be rethought, networks will have to be kept secure and staff will have to learn how to use new digital tools. This discussion will share steps you can take to achieve superior data interoperability and enable faster access to potentially life-saving information.

Click here to Register to attend

To view upcoming and on-demand webinars, visit webinars.govtech.com.

For assistance with registration, contact Jeremy Smith at jsmith@erepublic.com (916) 932-1402 direct

Audit sought by New York State Nurses Association Benefit Fund held within the scope of the Supreme Court's ruling in Central States, Southeast and Southwest Areas Pension Fund v. Central Transport, Inc.

New York State Nurses Association Benefit Fund [Fund] sought an audit of the Nyack Hospital’s [Hospital] payroll and wage records. The Hospital objected, claiming that the Fund had the authority to inspect only the payroll records of employees the Hospital identified as members of the collective bargaining unit. The federal district court held that the Fund was entitled to the records of all persons the Hospital identified as registered nurses but not to the records of any other employees.

The Second Circuit Court of Appeals reversed in part and affirm in part.* To the extent the district court granted the Hospital’s cross-motion for summary judgment and denied the Fund’s motion for summary judgment, the Circuit Court reverse. To the extent the district court granted the Fund’s motion for summary judgment and denied the Hospital’s cross-motion for summary judgment, the Circuit Court of Appeals affirmed the lower court's ruling. 

The Circuit Court held that the audit sought by the Fund was authorized by the Trust Agreement. Further, the Circuit Court opined that the Hospital did not present evidence that the audit constituted a breach of the Fund’s fiduciary duty within the meaning of ERISA. 

Accordingly, the Circuit Court concluded that the audit was within the scope of the Fund trustees’ authority under the United States Supreme Court’s decision inCentral States, Southeast and Southwest Areas Pension Fund v. Central Transport,Inc., 472 U.S. 559.

*Judge Carney dissented in part in a separate opinion. 

Click HEREto access the Second Circuit's decision.

 

Union leader's arguments with fellow School District personnel held to have been made in his capacity as a School District employee and thus not within the ambit of the First Amendment

Plaintiff [Union Leader], in this appeal of an adverse decision by a federal district court to the Second Circuit Court of Appeals, contends that his employer [School District] violated his First Amendment rights by retaliating against him for speech he claims to have made in his capacity as a union leader. 

However, the Second Circuit observed that in his complaint filed with the federal district-court Union Leader merely alleged that he had argued with "a School District mechanic – and later, a few School District officials" – over the frequency with which bus safety issues should be reported." Union Leader, however, did not allege that the School District’s existing policy permitted unsafe buses to remain on the roads, nor did he allege that daily reporting would improve public safety. Thus the court concluded that Union Leader's claims "suggest nothing more than a workplace dispute between School District employees about internal reporting protocols." 

The Circuit Court explaining that Union Leader did not plausibly allege that he spoke as a citizen or that he spoke on a matter of public concern thus being engaged "in speech protected under the First Amendment," affirmed the district court’s dismissal of Union Leader's complaint.* 

Although Union Leader argued that the School District"infringed his right to engage in speech protected by the First Amendment" the Circuit Court, citing Garcetti v. Ceballos, 547 U.S. 410. noted that “when public employees make statements pursuant to their official duties ... the Constitution does not insulate their communications from employer discipline.” In contrast, said the court, the First Amendment "protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern,” [Id. at 417]. 

The specific details provided in the Complaint suggest that Union Leader's arguments with fellow School District personnel were made in his capacity as a School District employee, not as a private citizen,  noting that the Second Circuit has expressly rejected any categorical rule “that when a person speaks in his capacity as a union member, he speaks as a private citizen,” citing Montero v. City of Yonkers, 890 F.3d 386. 

Concluding that Union Leader "failed to establish that he engaged in protected speech, he cannot make out a prima facie case of First Amendment retaliation," the court affirmed the district court’s dismissal of Union Leader's complaint. 

* Judge Rosemary S. Pooler dissenting in a separate opinion. 

Click HEREto access the Second Circuit's decision.

 

Failure to "join" a necessary party in filing an appeal with the Commissioner of Education a fatal omission

An individual and, or, an entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party in filing an appeal with the Commissioner of Education pursuant to §310 of the Education Law and must be named in the petition as such. 

Dismissing this appeal seeking the termination of the superintendent of the school district, Commissioner of Education Betty A. Rosa noted that the petitioner's had failed to notify a necessary party of the filing of the appeal, the superintendent. The Commissioner explained that were the petitioner to prevail, superintendent's right "would be adversely affected" and thus the superintendent "is a necessary party and must be joined as such."

Citing Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331, and other decisions by the Commissioner, Dr. Rosa further explained that such "joinder" requires that the necessary party be clearly named in the caption of the appeal and served with a copy of the notice of petition and [the] petition".

As the petitioner failed to serve the superintendent with the copy of the petition and the superintendent’s contractual rights would be adversely affected by a determination in petitioner’s favor, the Commissioner ruled the petitioner's appeal "must be dismissed."

Click HEREto access the Commissioner's decision posted on the Internet. 

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 about this electronic handbook, click HERE.  Click to Read a FREE excerpt (requires Adobe Reader).  

 

Employee's request that his employer provide for his defense and indemnification in a civil action denied as the underlying act was beyond the scope of his employment

In this appeal to Commissioner of Education Betty A. Rosa, a former teacher [Educator] contended that the Board of Education of his former employer, a school district, should have granted his request for defense and indemnification with respect to a civil action initiated by a former student alleging, among other things, that Educator had sexually assaulted her while she was a student at the school district’s high school. 

Addressing the merits Educator's argument, the Commissioner Rosa said that Education Law §3811 identifies the circumstances under which a school district is required to defend and indemnify “member[s] of the teaching or supervisory staff” in civil “actions or proceedings.” Defense and indemnification, opined the Dr. Rosa, is only available if the alleged conduct arose out of the “exercise of [a teacher's] powers or the performance of [his or her] duties,” a phrase equivalent to the term “scope of employment.”

Citing N.X. v Cabrini Med. Ctr., 97 NY2d 247 and other decisions, the Commissioner noted that New York State's Court of Appeals has unambiguously held that sexual assault perpetrated by an employee is a “clear departure from the scope of employment, having been committed for wholly personal motives”. Thus, opined Commissioner Rosa, the Board of Education "appropriately denied [Educator's] request that the school district defend him against allegations of sexual assault."

The Commissioner also noted that "[t]he record does not reveal whether [the Board of Education had] adopted the protections of Public Officers Law §18" but concluding that this would not affect the outcome of this appeal as Public Officers Law §18(3)(a) imposes an identical “scope of employment” requirement, citing Matter of Dreyer v City of Saratoga Springs, 43 AD3d 586.

Click HEREto access the Commissioner's decision. 

 

Challenging the results of a school board election

In this appeal to the Commissioner of Education the Board of Education of the Monticello Central School District sought an order annulling the results its 2022 school district election to fill three "open seats" on the school board because the margin of victory for two of the three seats "was less than the total number of affidavit ballots", which valid affidavit ballots had not been included in the tally.

In the words of the Commissioner, to invalidate the results of a school district election, the petitioner, in this instance the Monticello Central School District's Board of Education, must either: "[1] establish not only that irregularities occurred but also that any irregularities actually affected the outcome of the election or were so pervasive that they vitiated the electoral process; or [2] demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law."

Concluding that the School Board failed to satisfy its burden "of demonstrating a clear legal right to the relief requested and establishing the facts upon which [it] seeks relief," the Commissioner dismissed the School Board's appeal.

Click the URL set out below to access the full text of the Commissioner's decision. 

http://www.counsel.nysed.gov/Decisions/volume62/d18167

  

Audits and reports issued by the New York State Comptroller during the week ending August 12, 2022

New York State Comptroller Thomas P. DiNapoli issued the following during the week ending August 12, 2022

Click on the text highlighted in color to access the complete audit report.

BOCES and School Districts

Clinton-Essex-Warren-Washington Board of Cooperative Education Services (BOCES) – Employee Benefit Plan Forfeited Funds (2022M-31) BOCES officials did not ensure the administrator returned forfeited funds from the health flexible spending arrangement (FSA), dependent care assistance program (DCAP) and health reimbursement arrangement (HRA) in a timely manner. As of Dec. 31, 2021, the administrator had not returned $83,068 (97%) in forfeited funds from the FSA, DCAP and HRA for the 2014-15 through 2020-21 plan years to BOCES. As a result, all forfeited funds were not annually available for BOCES’ use. Officials were not aware of the unreturned funds until auditors notified them in January 2022. BOCES lacked adequate procedures to ensure the administrator returned all forfeited funds from the FSA, DCAP and HRA in a timely manner.

East Rochester Union Free School District – Procurement (Monroe County)  District officials did not always procure goods and services in accordance with board policies and applicable statutory requirements. Of the $1.88 million in purchases tested from 25 vendors, district officials did not adequately document that they properly sought required competition for 18 purchases. The board and district officials did not develop adequate written purchasing policies and regulations and the board did not annually review the policies as required.

Kenmore-Town of Tonawanda Union Free School District – Change Orders (Erie County) The board and district officials did not properly manage project change orders. The board and district officials did not aggregate 31 change orders, totaling over $860,000 that were for the same or similar types of material or service. As a result, auditors question whether the change orders may have been split to avoid having to seek competitive bids for the additional work. Officials also did not properly approve 296 change orders totaling $3.9 million or comply with the district’s procurement policies and regulations.

Kenmore-Town of Tonawanda Union Free School District – Electronic Records and Reports (Erie County) District officials did not properly maintain electronic records (e-records) in accordance with applicable legal and regulatory requirements. The board and district officials did not ensure that e-records were preserved in their original format, intact, in a directory or filing system to maintain the records’ integrity, as required. They also did not adopt an adequate written policy that addressed the creation, maintenance, and storage of e-records, as required. Without a secure e-record storage system in place, there is a risk that unauthorized changes or modifications could be made without detection.

Lancaster Central School District – Financial Management (Erie County) The board and district officials did not properly manage fund balance and reserve funds. The board and district officials did not implement our prior audit’s recommendations to improve their budgeting practices and transparency with taxpayers. Officials overestimated budgetary appropriations by an annual average of $13 million (13%) and appropriated, on average, $2.8 million of fund balance that was not used. Reserves were not used in accordance with adopted budgets and were overfunded in two reserves by approximately $3.3 million. These practices resulted in real property tax levies that were higher than necessary.

 

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Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.

 

Standing to appeal a New York State school board's decision to abolish positions in the school district to the Commissioner of Education

After the school district's Board of Education voted to abolish a number of positions a resident [Petitioner] in the school district appealed Board's decision abolishing the position, among other things, to the Commissioner of Education, Betty A. Rosa. With respect to the abolishment of the positions at issue, Petition contended that the elimination of the positions was not in the best interests of students or taxpayers.  

Commissioner Rosa held that Petitioner’s claims concerning the abolition of the positions "must be dismissed for lack of standing." explaining an individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal, or property rights. In other words, the Commissioner opined that "[o]nly an individual who is directly affected by an action has standing to commence an appeal therefrom, citing Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333 and Appeal of Waechter, 48 id. 261, Decision No. 15,853.

Further, said Dr. Rosa, "Petitioner lacks standing to assert the rights of the employees whose positions were abolished" and merely residing within a school district does not, in and of itself, confer standing to challenge a board of education’s actions concerning its employees.

Click HERE to access the Commissioner's decision posted on the Internet.

 

School board's discontinuing probationary employee's services based on the school superintendent's recommendation appealed

In Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, the Court of Appeals ruled that the services of a probationary teacher may be discontinued at any time during the probationary period unless the teacher shows that a board terminated service "for a constitutionally impermissible purpose, in violation of a statutory proscription, or in bad faith."

In this appeal to Commissioner of Education, Commissioner Betty A. Rosa considered the application of Education Law §3031 with respect to the school superintendent's response to a probationary teacher’s [Probationer] request that the superintendent provide written reasons for her or his recommendation to the School Board that her services be discontinued.  In the words of Dr. Rosa, §3031 is “a procedural device to force the superintendent to lay bare the reasons for his [or her] recommendation so that [a] probationer [can] ascertain whether any were constitutionally or statutorily impermissible.”

Citing Rathbone v Board of Educ. of HamiltonCent. School Dist., 47 AD2d 172, [3d Dept 1975], affd 41 NY2d 825, Commissioner Rosa noted that "[t]he superintendent’s reasons must be sufficiently specific so that the teacher can submit “a reasonable and logical reply” thereto. In this instance, said Dr. Rosa, the superintendent recommended Probationer’s termination based on her (1) use of “controversial materials”; (2) “[f]ailure to utilize [the] approved curriculum”; and (3) “promot[ing] misinformation” but failed to provide any dates or specific details. This, opined Commissioner Rosa, deprived the Probationer of her ability to argue that her conduct was protected by the United States or New York Constitutions, explaining "[i]t is well settled that a board of education may not dismiss or refuse to grant tenure to an employee in retaliation for the exercise of constitutionally guaranteed freedoms or statute."*

The Commissioner remanded the matter to the superintendent for further proceedings, noting the procedure for doing so was described by the Appellate Division in Rathbone, [supra] at page 178, where the court instructed Rathbone's superintendent to "resubmit [the] statement of reasons for [the] recommendation of dismissal." Further, said the Rathbone court, "[i]f these reasons are subsequently demonstrated to be unlawful, or if they are not accepted by the Board of Education, [Rathbone] will then be entitled to her benefits from the date of the unlawful dismissal" but if adequate reasons are given "which in the superintendent’s view would have justified [Rathbone's] dismissal ... and the board, after [Rathbone] has had the opportunity to respond, chooses to accept the recommendation, [Rathbone] should not receive back pay or benefits …."

*The Commissioner declined to consider the more specific reasons for Probationer’s discontinuance that the superintendent articulated for the first time after Probationer's appeal to the Commissioner, explaining that time to provide the Probationer with these reasons "was at the local level and permitting the superintendent to proceed in this matter would effectively abrogate the protections of Education Law §3031."

Click HERE to access the Commissioner's decision posted on the Internet.

Parol evidence may not be used in challenging a written agreement that is complete, clear and unambiguous on its face

When parties set forth their agreement in a clear, complete document, the writing should be "enforced according to its terms," and "[e]vidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing" said the Court of Appeals in W.W.W. Assoc. v Giancontieri, 77 NY2d 157.

The relevant collective bargaining agreement [CBA] between Plaintiff's union [CSEA] and the County provided "[a]ny employee who retires on or after 1/1/08 and who is eligible for retiree health insurance benefits, and who opts out of such retiree health insurance due to other coverage, shall receive a cash payout equivalent to fifty (50%) percent of the value of Individual Coverage for the plan with the most active employee enrollees."

Prior to his retirement the Plaintiff in this CPLR Article 78 action had opted out of the County's health insurance benefits as he had other coverage and upon his retirement applied for the appropriate "cash payout equivalent".

The County denied Plaintiff's request for the payout equivalent contending that the Plaintiff was not eligible for retiree health insurance benefits because the NYSHIP Manual for Participating Agencies [NYSHIP] "provided that only an employee enrolled in the NYSHIP program or another employer-sponsored health plan at the time of retirement was eligible to continue coverage in retirement." The County argued that because the Plaintiff had opted out of the County's health insurance benefits prior to his retirement, he was not entitled to the payout for opting out of retiree health insurance benefits pursuant to the CBA.

Supreme Court granted Plaintiff's motion for summary judgment and County appealed.

The Appellate Division sustained the Supreme Court's ruling explaining that "[t]he fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent and the best evidence of what parties to a written agreement intend is what they say in their writing". Further, said the court, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms", citing Kolbe v Tibbetts, 22 NY3d 344 and other decisions.

Plaintiff, said the Appellate Division, had "established his prima facie entitlement to judgment as a matter of law by submitting, among other things, a copy of the relevant pages of the CBA" and the County failed to raise a triable issue of fact by submitting a copy of materials set out in the NYSHIP manual.

Click HEREto access Appellate Division decision posted on the Internet.

Attendance Rules for employees of the State as the employer designated management or confidential

Attendance rules officers and employees of the State of New York as the employer designated management or confidential within the meaning of Article 14 of the Civil Service Law, the so-called Taylor Law, were amended effective August 3, 2022 to increase the accumulation of sick leave credits from 15 to 25 days in one year. 

The Organization of Management Confidential Employees (OMCE) supported the amendment to the rule and noted that "it will extend family sick leave benefits to employees in managerial/confidential positions consistent with benefits provided to employees in represented positions."

The text of rule and required statements and analyses may be obtained from: Jennifer Paul, NYS Department of Civil Service, Empire State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, email: commops@cs.ny.gov.

Audits and reports issued by the New York State Comptroller during the week ending August 5, 2022

New York State Comptroller Thomas P. DiNapoli announced the audits listed below for School Districts and Municipalities were issued during the week ending August 5, 2022:

Click on the text highlighted in color to access the complete audit report.

School District Audits

North Syracuse Central School District – Professional Services (Onondaga County)

District officials did not always seek competition for professional services in accordance with district policy. As a result, services may not have been procured in the most economical manner and in the best interest of the taxpayers. District officials paid $1.2 million to six professional service providers without seeking competition and used a request for proposals (RFP) process to select certain professional service providers many years ago but did not seek new competition. Officials paid $2.1 million to six professional service providers who were selected based on RFPs issued in 2013 and 2014.

 

Somers Central School District – User Accounts and Software Updates (Westchester County)

District officials did not establish adequate controls over user accounts and software updates to help prevent against unauthorized use, access and loss. In addition, officials did not periodically review all network user accounts and permissions. Auditors found 58 network user accounts had unnecessary administrative permissions and 111 network user accounts were unneeded and should have been disabled. Officials also did not adopt an adequate comprehensive information technology contingency plan to minimize the risk of data loss or prevent a serious interruption of services.

 

Municipal Audits

Village of Waterford – Board Oversight (Saratoga County)

The board did not provide adequate oversight of financial operations. Specifically, the board did not establish compensation controls to address the lack of segregation of the treasurer’s duties. The board also did not request or receive adequate monthly reports from the treasurer to adequately monitor operations, ensure bank reconciliations were properly prepared, retained and reviewed or ensure all claims paid in advance were for allowable purposes. 

 

Town of Waterloo – Financial Management (Seneca County)

The board and supervisor did not effectively manage the town’s financial operations, and were unaware of the town’s true financial position, because the supervisor did not maintain accurate accounting records and reports. In addition, the board did not implement adequate corrective action to address prior audit findings and recommendations, which prolonged significant deficiencies, such as inadequate financial policies, procedures, records and reports. The board also did not conduct, or contract for, an annual audit of the supervisor’s records or establish written multiyear financial and capital plans to adequately manage fund balance.

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Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.

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New York State Comptroller Thomas P. DiNapoli also reported that a former Village of Sherman treasurer was arrested for an alleged theft of $20,000 of town funds, noting that residents’ cash tax payments were then spent at Dollar General, Walmart, QVC and Amazon.

Former Village of Sherman Treasurer Ann Gilbert faces felony charges for the alleged theft of more than $20,000 in cash paid by residents from 2012 to 2016 for village sewer, water and taxes, according to an investigation by State Comptroller Thomas P. DiNapoli, the Chautauqua County District Attorney Jason Schmidt and the Chautauqua County Sheriff’s Office. Gilbert, 54, who now resides in Florida, was charged with grand larceny in the third degree.*

“Ms. Gilbert allegedly betrayed her neighbors by pocketing tax payments to pay her personal expenses,” DiNapoli said. “I thank District Attorney Schmidt and the Chautauqua County Sheriff’s Office for partnering with my office to hold her accountable.”

“This is not a victimless crime,” District Attorney Schmidt said. “The Village of Sherman, like many of our local municipalities here in Chautauqua County, is engaged in an every-day battle to service its residents with precious little money. Every dollar stolen is a dollar not spent on the community. No one should use their public office for personal gain.”

Ms. Gilbert allegedly embezzled village funds to pay for her personal utility bills and purchases from QVC, Dollar General, Walmart, Amazon and Pampered Chef.

To conceal her crimes, she stopped recording cash village tax payments and, instead, pocketed the money. After the Village of Sherman’s Mayor Colleen Meeder discovered Gilbert’s alleged acts of "jobbery"**, she reported them to the State Comptroller and the District Attorney who commenced an investigation. Gilbert was the village treasurer from June 2007 until August 2016.

On April 22, 2022, the State Comptroller’s Office released an audit detailing financial mismanagement of cash receipts and making recommendations for improved internal controls.

Gilbert was arrested today pending arraignment in Chautauqua County Court before Judge Marilyn Gerace.

The arrest was a result of a joint investigation between the State Comptroller’s Office, the Chautauqua County District Attorney’s Office and the Chautauqua County Sheriff’s Office.

* The charges against the defendant are merely accusations and the defendant is presumed innocent until and unless proven guilty in a court of law.

** As noted in previous NYPPL reports of such alleged acts of such misconduct, there is a term for such breaches of the public trust, "jobbery." Mirriam-Webster defines jobbery as "the improper use of public office or conduct of public business for private gain".

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.ny.gov or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.