ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

January 31, 2023

Characteristics of a hostile work environment for the purposes of litigating claims brought pursuant to 42 U.S.C. §1983

To prevail in a “hostile work environment” action brought pursuant to 42 U.S.C. §1983  the Plaintiff must set out claims alleging racial discrimination, retaliation, and a hostile work environment and demonstrate that his “workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment.”  

The Circuit Court Appeals, Second Circuit held that Plaintiff’s hostile work environment claim was based on the same conduct underpinning his racial discrimination and retaliation claims: his being given work orders to change light bulbs and, from time to time, receiving work orders for items not in need of repair. 

The Circuit Court explained that such "identified conduct falls far short of the conduct required to sustain a hostile work environment claim." The Circuit Court then affirmed the District Court’s grant of summary judgment dismissing Plaintiff’s complaint.

The District Court had dismissed Plaintiff's claims, in part, because Plaintiff failed to identify any adverse employment action. The Circuit Court, agreeing with the District Court that the Plaintiff failed to identify an adverse employment action, affirmed the lower court's ruling and opined that it "need not address any of the other grounds identified by the District Court as supporting summary judgment". 

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

January 30, 2023

Applying the Doctrine of Res Judicata

Federal district court dismissed Plaintiff's cause of action pursuant to the doctrine of res judicata

The U. S. Circuit Court of Appeals, Second Circuit, affirmed the lower court's ruling explaining “res judicata bars re-litigation of a claim if :

    (1) the previous action involved an adjudication on the merits; [and]

    (2) the previous action involved the same parties or those in privity with them; [and] 

    (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.”

In this instance the Plaintiff and the Defendants were parties in both this case and the prior litigation and the prior action was decided on the merits through a motion to dismiss. 

The Circuit Court also noted that Plaintiff's current claims against Defendants could have been brought in the earlier action if they were not and, accordingly, the District Court properly determined that the claims against Defendants were barred by res judicata. 

As to another claim advanced by Plaintiff, the Circuit Court observed that "defamation claims against the attorneys relating to their work in the prior lawsuit are precluded by the common law litigation privilege," citing Martirano v. Frost, 25 N.Y.2d 505. The court opined that "a courtroom statement is absolutely privileged unless it is 'so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame'”. 

Click HERE to access the Circuit Court's decision.

January 27, 2023

Report by New York State Comptroller issued January 25, 2023 identifies school districts in fiscal stress

Fourteen school districts statewide were designated in some level of fiscal stress under State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System for the school year (SY) ending on June 30, 2022, down from 23 districts in fiscal stress the prior year. This is the lowest incidence of fiscal stress recorded for schools since the system’s inception in the 2012-13 school year.

“The number of districts designated in a fiscal stress category has fallen considerably over the past three years. This year there was a particularly steep drop because of significant increases in both federal and state aid,” DiNapoli said. “High need districts in urban and suburban areas, which typically have the highest incidence of fiscal stress, received some of the largest increases in aid. However, the federal aid is temporary so school district officials may face difficult operational and staffing decisions in determining how to best provide services to their students in the future.”  

The Comptroller’s Fiscal Stress Monitoring System was designed to identify issues that school districts, counties, cities, towns and villages are having with budgetary solvency, or the ability to generate enough revenues to meet expenses. The Comptroller releases fiscal stress scores for the various categories of government three times a year. School districts are given a fiscal stress score based on several factors: year-end fund balance, operating deficits and surpluses, cash position, and reliance on short-term debt for cash-flow. The higher the score the more severe the level of stress.

The monitoring system, which excludes New York City and the “Big Four” City School Districts of Buffalo, Rochester, Syracuse and Yonkers, found one school district in “significant fiscal stress,” which is the highest category - Mount Vernon City School District in Westchester County.

Five districts were designated as being in moderate fiscal stress. Only one of these, East Ramapo Central School District in Rockland County, saw a decrease in its stress score since last year. The remaining four – Arkport Central School District (Steuben County) Harrisville Central School District (Lewis County), New Suffolk Common School District (Suffolk County), and Roscoe Central School District (Sullivan County) – had score increases.

In response to the COVID-19 pandemic, the federal government passed three major multiyear grants of aid targeted to low-income school districts. In total, school districts included in FSMS reported receiving nearly $1 billion in temporary federal aid during SY 2021-22.

DiNapoli’s report also notes many school districts also saw a substantial increase in ongoing state aid. In State Fiscal Year 2021-22 Enacted Budget, the state committed to fully funding Foundation Aid for school districts by SY 2023-24. Total state aid reported by school districts (excluding New York City and the Big Four) increased from $13.8 billion in SY 2020-21 to $15 billion in SY 2021-22, an increase of $1.1 billion, or 8.5%.

Lists [Click on text set out in color to access the data.]

School Districts in Stress for Fiscal Year Ending 2022

Complete List of School District Fiscal Stress Scores

Report

Fiscal Stress Monitoring System: School Districts Fiscal Year 2012-22 Results

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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.

January 26, 2023

Amending the New York State Assembly maps

The Appellate Division, First Department, affirming an order entered by Supreme Court Justice Laurence L. Love which, to the extent appealed from, ordered New York State's Independent Redistricting Commission (IRC):

1. Initiate the constitutional process for amending the New York State Assembly maps;

2. Conduct public hearings consistent with Article III, §4(c) of the New York State Constitution; 

3. Make plans, data and information available for the public to view at least 30 days prior to the first public meeting; and

4. Submit to the legislature an Assembly redistricting plan or plans and implementing legislation by April 28, 2023.

This plan would be voted upon by the legislature in a single bill.

Justice Love further ordered that should either house of the legislature failed to approve the implementing legislation, or if the Governor vetoed such legislation," the IRC would, within 15 days and in no case later than June 16, 2023, prepare a second redistricting plan and implementing legislation.

In the event either the legislature failed to approve the second plan and implementing legislation, or if the Governor vetoed it, then the legislature would introduce such implementing legislation with any amendments deemed necessary.

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

January 25, 2023

New York State Comptroller Thomas D. DiNapoli releases audits

On January 24, 2023, following audits were issued by State Comptroller DiNapoli:

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

 

Department of Health: Medicaid Program – Improper Payments for Brand Name Drugs  (2020-S-62)

The audit identified $1.1 million in Medicaid overpayments for brand name prescription drugs where generic drugs were available but not substituted. In addition, the audit found $1 million in potential cost avoidance associated with 27,455 Medicaid fee-for-service claims for drugs that appear to be generic but were paid using brand name pricing methods. 

 

Department of Health: Medicaid Program – Claims Processing Activity October 1, 2021 Through March 31, 2022 (2021-S-28) 

OSC’s audit of Medicaid claims processing activity identified over $22 million in improper Medicaid payments for claims that were not processed in accordance with Medicaid requirements. About $9.9 million of the improper payments had been recovered by the end of the audit fieldwork. The audit also identified 11 Medicaid providers who were charged with or found guilty of crimes that violated laws or regulations governing certain health care programs. Upon being advised of the providers, the Department removed them from the Medicaid program. 

 

New York City Health and Hospitals Corporation: Controls Over Equipment (Follow-Up) (2022-F-19)

The initial audit, issued in January 2019, determined that the New York City Health and Hospitals Corporation’s (H+H’s) controls over its inventory of equipment needed improvement, as auditors found equipment tracking problems and record-keeping issues associated with relinquished, mass-retired, transferred and repaired assets. The follow-up found that H+H made some progress in addressing the issues identified. Of the six recommendations from the initial audit, H+H implemented two and partially implemented one; three recommendations were not implemented. 

 

Department of Civil Service: New York State Health Insurance Program – Payments by CVS Health for Pharmacy Services for Ineligible Members (Follow-Up) (2022-F-29)

The initial audit, issued in September 2021, found that nearly $30.7 million in pharmacy service claims were paid on behalf of ineligible members due to data transfer issues between the Civil Service and CVS systems and retroactive disenrollment of members. The follow-up found that Civil Service and CVS made progress addressing the issues identified in the initial audit; namely, Civil Service and CVS are working to develop a procedure for the recovery of these and future improper payments. Of the report’s six recommendations, two were implemented, three were partially implemented and one was no longer applicable. 

 

Department of Civil Service: New York State Health Insurance Program – Payments by UnitedHealthcare for Medical/Surgical Services for Ineligible Members (Follow-Up) (2022-F-30)

An audit issued in September 2021 found that United made a total of $5.7 million in improper payments for medical/surgical services on behalf of ineligible members. The follow-up found that Civil Service and United made significant progress in addressing the issues identified in the initial audit. United recovered about $500,000 of the $5.7 million in overpaid benefits originally identified, and Civil Service and United identified another $10.9 million in claims for ineligible members, of which about $4.9 million has been recovered. Of the initial report’s three audit recommendations, two were implemented and one was partially implemented. 

 

State Education Department: Oversight of Career and Technical Education Programs in New York State Schools (Follow-Up) (2022-F-17)

The initial audit, issued in December 2020, found that the department did not provide adequate oversight of CTE programs offered through the secondary school system to ensure they align with student goals and the needs of the State labor market – specifically, those occupations that are most in demand, fastest growing or highest salaried. Auditors also identified several common issues that are a deterrent to students’ enrollment in CTE and their successful completion of the program, further contributing to the lack of skilled employees in certain industries. The follow-up found that the department made limited progress in addressing the issues identified in the initial audit report. Of the initial report’s seven audit recommendations, three were implemented, one was partially implemented and three were not implemented. 

 

Department of Health: Improper Medicaid Payments for Misclassified Patient Discharges (Follow-Up) (2022-F-21)

The initial audit report, issued in August 2021, found the department did not have a process to identify and recover improper Medicaid payments for inpatient claims with incorrect patient status codes, resulting in $28 million in improper and questionable Medicaid payments for recipients who were reported as discharged from a hospital, but then admitted to a different hospital within 24 hours of the reported discharge (which often meets the definition of a transfer). The follow-up found that the department made some progress in addressing the problems identified in the initial audit report, but additional action is still required. Of the initial report’s four audit recommendations, one was implemented, two were partially implemented and one was not yet implemented.

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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.

January 24, 2023

Second Circuit Court of Appeals certifies a question concerning the NYCHRL and NYSHRL to the New York Court of Appeals

The federal district court in this action concluded that the New York City Human Rights Law and the New York State Human Rights Law "impact requirement could not be met by a nonresident Plaintiff whose only asserted geographical connection was that she was denied a promotion to a position in New York City and State."  Plaintiff appealed.

Explaining that this case presents an unresolved question of New York Law, the United States Circuit Court of Appeals, Second Circuit, reserving decision, and certified the following question to the New York Court of Appeals:


Whether a nonresident plaintiff not yet employed in New York City or State satisfies the impact requirement of the New York City Human Rights Law or the New York State Human Rights Law if the plaintiff pleads and later proves that an employer deprived the plaintiff of a New York City- or State-based job opportunity on discriminatory grounds?


The Circuit Court also observed that the New York Court of Appeals was not limited to the question as stated hereinabove. Rather, said the Circuit Court, "the New York Court of Appeals may modify the certified question as it sees fit and may direct the parties to address other issues that it deems relevant to the circumstances presented in this appeal."

The Clerk of the Circuit Court was directed to transmit to the Clerk of the New York Court of Appeals "a copy of the Circuit Court's opinion and a complete set of briefs, appendices, and the record filed by the parties" in the Circuit Court of Appeals and noted that "this panel will retain jurisdiction to decide the case once we have had the benefit of the views of the New York Court of Appeals or once that court declines to accept certification."

Click HERE to access the Circuit Court's decision.

January 21, 2023

All About Submitting a Resignation, Withdrawing a Resignation and Disregarding a Resignation

It appears to be simple enough. 4 NYCRR 5.31 provides that except as otherwise provide therein, "every resignation shall be in writing" while §31(2) of the Public Officers Law requires that "[e]very resignation shall be in writing addressed to the officer or body to whom it is made."

4 NYCRR 5.3, in general, applies to employees of the State as the employer in the Classified Service2 and the employees of public authorities, public benefit corporations and other entities for which the New York State Department Civil Service administers the Civil Service Law. In particular, 4 NYCRR 5.3(b) provides, in pertinent part, that “If no effective date is specified in the resignation, it shall take effect upon delivery to or filing in the office of, the appointing authority. If an effective date is specified in a resignation, it shall take effect on such specified date.3 [Emphasis supplied.]

§31(2) of the Public Officers Law is slightly different and provides that Every resignation shall be in writing addressed to the officer or body to whom it is made. If no effective date is specified in such resignation, it shall take effect upon delivery to or filing with the proper officer or body. If an effective date is specified in such resignation, it shall take effect upon the date specified, provided however, that in no event shall the effective date of such resignation be more than thirty days subsequent to the date of its delivery or filing. [Emphasis supplied.]

Newspaper articles concerning a state or municipal officer or employee resigning from his position4 frequently report that the appointing authority "accepted" the individual's resignation. This is not entirely accurate, however. Except where otherwise provided by law,5 rule, regulation or a provision set out in a collective bargaining agreement,6 approval or acceptance of an officer’s or an employee’s resignation is not required for the resignation to take effect.

All that is required for a resignation to become operative is its delivery to the appropriate appointing authority or to the appointing authority’s lawful representative or as otherwise required or permitted by law. In other words, "acceptance of the resignation" by the appointing authority is not required to validate the resignation and it would suffice for the appointing authority to merely “acknowledge the receipt" of the officer’s or the employee's resignation, an action consistent with good personnel practice.

What constitutes delivery of the resignation to the appointing authority? In Grogan v Holland Patent Central School District,7 the Appellate Division said that even though the school board had not met and had no opportunity as a body to consider the resignation, the “[d]elivery of the letter of resignation to the clerk of the board constituted delivery to the board.” Therefore, the resignation could not be withdrawn without the board’s consent.

In contrast, in Atkinson v Kelly8 the decision reports that the then serving appointing authority "authorized" Atkinson's supervisor to resolve a disciplinary issue by obtaining a letter of resignation from Atkinson. In so doing, the supervisor told Atkinson that if he did not resign from his position a formal disciplinary proceeding would be commenced against him. Atkinson tendered his resignation letter immediately after his meeting with his supervisor.9

The following day, however, Atkinson sent a letter to his supervisor rescinding his resignation. When Atkinson was advised that the appointing authority had rejected his effort to rescind his resignation, Atkinson commenced a CPLR Article 78 proceeding seeking a court order directing the appointing authority to [1] vacate his termination; [2] reinstate him to his former position; and [3] pay him "damages and back pay." Supreme Court granted Atkinson's petition and the appointing authority appealed.

The Appellate Division, conceding that 4 NYCRR 5.3(c) provides that "a resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority without the consent of the appointing authority," nevertheless sustained the Supreme Court's decision. The court explained that in this instance the appointing authority was not authorized to designate another individual to receive an employee's written resignation in lieu of the resignation being delivered to him.10

The Appellate Division's decision noted that although the heads of other departments in the jurisdiction were specifically authorized to delegate the power to receive the delivery of an employee's resignation to a designated individual,11 the powers and duties of the instant appointing authority "did not specifically provide for any such delegation [of this authority] to a subordinate."

Accordingly, the Appellate Division opined that Atkinson's supervisor "was without authority to receive delivery of Atkinson resignation letter" on behalf of the Department's appointing authority. As was no indication in the record that Atkinson's letter of resignation was delivered to the appointing authority or filed by, or on behalf of, Atkinson with the appointing authority's office prior to the Atkinson's request to rescind it, the appointing authority's consent to Atkinson withdrawal of his resignation was not required to validated Atkinson's withdrawal of his resignation. In the words of the court, Atkinson was not preclude from "unilaterally rescinding his resignation."

The Atkinson decision confirms that an individual is able to unilaterally void his resignation provided the written notice that he withdrew or rescinded his resignation is received by the appropriate official or body before his resignation was actually "delivered" to the appointing authority. Courts have typically ruled that the receipt of a withdrawal or cancellation of a resignation before the resignation itself is delivered to the appointing authority or a designated representative effectively voids the resignation.12

Absent a timely withdrawal or cancellation of a resignation, 4 NYCRR 5.3(c) controls and the officer or employee cannot withdraw his resignation after it is delivered to the appointing authority without the consent of the appointing authority. Again, as the court ruled in Hazelton v Connelly,13 all that is required for a resignation to become operative is its delivery to the appointing authority prior to the appointing authority's receipt of an employee’s request to withdraw or rescind the resignation. Again, approval or acceptance of the officer's or employee's resignation by the appointing authority is not required as a condition precedent for the resignation to take effect.14

An example of what the judiciary concluded was an ineffective effort to cancelled or amended a resignation after it was delivered to the appointing authority without the consent of the appointing authority is demonstrated in a decision handed down by the Appellate Division.15

A few months after his appointment, a Town Attorney [TA] sent a letter to the Town Supervisor notifying the Supervisor of his intent to resign from the position "as soon as my successor has been identified, and the Town Board is ready to appoint him or her." The Supervisor had TA's letter to delivered to the Town Clerk "who stamped and filed it in the regular course of business."

TA's subsequent attempts to rescind his resignation were unsuccessful and ultimately he commenced a CPLR Article 78 proceeding in which he contended that his resignation was ineffective and that he had been improperly terminated from his position as Town Attorney. Supreme Court granted the Town's motion to dismiss TA's petition, finding that: [1] TA's resignation was effective; and [2] TA never sought the consent of the Town Clerk to withdraw or cancel his resignation in accordance with Public Officers Law §31(4).

Affirming the Supreme Court's ruling, the Appellate Division explained that although TA's written resignation was presented to the Town Supervisor instead of the Town Clerk as required by the relevant provisions of Public Officers Law §31, this constituted substantial compliance with the statute when TA's resignation letter was delivered by the Town Supervisor's legislative aide to the Town Clerk, who then filed it in the regular course of business. Thus, concluded the court, TA's resignation satisfied the requirements of the law.

In addition, the Appellate Division agreed with the Supreme Court's dismissal of the proceeding based on TA's failure to exhaust his administrative remedies in that TA did not asked the Town Clerk to disregard his resignation.

Smith v Kunkel16 is a case involving an effort to have a court consider an employee's attempt to withdraw his written resignation prior to its effective date.

Smith had submitted his resignation, indicating that he had done so for "personal reasons." The resignation was dated August 21 and was to take effect the September 3, next following. On August 29 Smith wrote Kunkel, the agency's Administrative Officer, "seeking to withdraw and rescind" his resignation. Kunkel declined to approve Smith’s request to withdraw his resignation, citing 4 NYCRR5.3(c) of the rules.

Smith sued the agency contending that Kunkel's refusal to permit him to withdraw his resignation was arbitrary and capricious and that 4 NYCRR 5.3(c) was unconstitutional as it deprived him of his public employment without notice and hearing.

Addressing Smith's constitutional challenge to 4 NYCRR 5.3(c), the Appellate Division rejected Smith's argument noting his contention overlooked a crucial fact -- Smith had not been terminated by the appointing authority but rather had voluntarily resigned from his position. The court indicated that the "voluntariness of [Smith's] resignation is not vitiated by the fact that Kunkel rejected his withdrawal request prior to the effective date of his resignation."

The Appellate Division concluded that Smith, having by his own action relinquished his position, did not retain any constitutionally protected property interest in it.

Another issue that is sometimes raised in connection with an attempt to withdraw a resignation is a claim that the employee resigned as the result of coercion in that his resignation had been obtained under duress because he had been threatened that unless he submitted his resignation from his position, disciplinary charges would be filed against him.

However, as the Court of Appeals explained in Rychlick v Coughlin,17 where an appointing authority has the right to take disciplinary action against an officer or employee, "it was not duress to threaten to do what one had the legal right to do."

Further, in the event an officer or an employee has submitted his resignation after being served with disciplinary charges, or in expectation of being served with disciplinary charges, 4 NYRR 5.3(b) authorizes the appointing authority, as a matter of the exercise of discretion, to disregard the individual's resignation and proceed with the disciplinary action.

Where so otherwise entitled, the individual is then to be provided with "administrative due process" whereby he is given notice of the charges and specifications alleged against him. A disciplinary hearing would be then conducted in accordance with law or a disciplinary procedure set out in a collective bargaining agreement negotiated pursuant to Article 14 of the Civil Service Law, typically referred to as the Taylor Law.

Should the individual fail or refuse to participate in the disciplinary hearing, the appointing officer could elect to withdraw the disciplinary charges or, in the alternative, proceed to hold a disciplinary hearing in absentia.

If the appointing authority elects to go forward with a disciplinary action and hold the hearing in absentia, making the necessary record, and the individual is found guilty of one or more of the charges and specifications served on him and the penalty imposed is dismissal from his employment, 4 NYCRR 5.3(b) provides that individual's termination shall be recorded as a dismissal rather than as a resignation.

The decision in Mari v Safir18 sets out the general standards applied by the courts in resolving litigation challenging an appointing officer's electing go forward with  disciplinary hearing to be held in absentia and demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him by refusing to appear at the disciplinary hearing.

Decisions of the Commissioner of Education, Decision No. 17,007, provides an insight into a variation of an appointing authority's authority to act upon its receipt of a resignation submitted by an employee.

In this appeal to the Commissioner of Education, a probationary teacher challenged a school board’s rejection of his resignation from his position and the board's decision to terminating him from his position, presumably for failure to satisfactorily complete the probationary period.

The teacher asked the Commissioner to direct the school board to either rescind his appointment as a probationary employee or, in the alternative, to accept his previously tendered letter of resignation from his position. The Commissioner said that as a general rule, "... a board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason, unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription or decisional law.”

Addressing the merits of the teacher's appeal, the Commissioner said that “[i]n an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.” Finding that the teacher failed to allege that his termination from his probationary appointment was for an unconstitutional reason or in violation of any statute, the Commissioner ruled that the teacher had “failed to meet his burden” and dismissed his appeal. 

In this instance the school district "technically" elected to ignore Petitioner's resignation rather than refuse to accept it as an appointing authority may not “refuse to accept” a resignation tendered by an officer or an employee and the resignation becomes operative upon its delivery to the appointing authority. Presumably the school district’s records would record the educator’s separation from employment as a “probationary termination” rather than a “resignation” from the position.

In any event, the appointing authority should be mindful of the decision in Matter of Vinluan v Doyle, 60 AD3d 237, where the court held that except under "exceptional circumstances," an employer cannot refuse to permit an individual to resign from his position.

On occasion the terms set out in a written resignation submitted by an individual may prove troublesome as was the case in Plainedge UFSD v Raymond, Decisions of the Commissioner of Education, Decision No. 14,644.

Early in the school year a school board member announced that he was resigning from his position effective the June 30 next following. The school board decided to include the “soon to be vacant” board seat on the ballot of its annual school election in order to save the school district the cost of conducting a special election, approximately $7,000. The winning candidate in election then sought to be seated  immediately but was told that the seat would not become vacant until June 30, the designated effective date of the sitting board member's resignation.

The school district's attorney, however, advised the school board that an oral resignation does not satisfy the requirements of Public Officers Law §31(2) and, therefore, the recently elected candidate could not take office because no vacancy then existed as the then sitting member of the school board was still a member of the board because he had not submitted a lawful written resignation from the school board.   

Addressing the newly elected candidate's appeal, the Commissioner of Education agreed and held that an announcement of an intention to resign at a board meeting did not constitute a valid resignation from the board. In support of his ruling, the Commissioner cited an opinion of the Attorney General19 in which the Attorney General opined that a member of a school board, whether elected or appointed, is a public officer and thus his resignation is subject to the mandates set out in §31 of the Public Officers Law.

The Commissioner's decision also noted that Public Officers Law §31(2) provides that "in no event shall the effective date of such resignation be more than thirty days subsequent to the date of its delivery or filing."

Had the resigning board member submitted his written resignation at the same time he orally announced his intention to resign indicating in his written resignation that the effective date of the his resignation was to be June 30 next, his resignation would have taken effect thirty days after his written resignation was submitted,  notwithstanding the fact that its terms clearly set out the fact that he intended that it not take effect until the next June 30. Simply said, the board member's resignation would have been deemed to take effect 30 days after its delivery "by operation of law."

Another aspect of a school board's processing of an educator's resignation that must be considered is that the resignation may subject to the provisions of §1133.1 of the State Education Law.

§1133.1 provides that a school administrator or superintendent "shall not make any agreement to withhold from law enforcement authorities, the superintendent or the commissioner, where appropriate, allegations of child abuse in an educational setting by an employee or volunteer within the meaning Article 23-Bof the Education Law" in return for the resignation or voluntary suspension of the individual from his position. Presumably an appointing authority could apply the rational in the event of an employee's “retirement” from his position under similar circumstances.20

Turning to yet another element flowing from a resignation from public service, sometimes a former officer or employee will seek to be reinstated to his former position following his retirement. With respect to officers and employees in the Classified Service, such reinstatement is controlled by the provisions of 4 NYCRR 5.4.

4 NYCRR 5.4 authorizes the appointing authority of the State as the employer to reinstate a former "permanent employee" to his former position, if vacant, or to any position to which he was eligible for transfer or reassignment, within one year of the date of the individual's resignation.21  Further, "for good cause shown and where the interests of the government would be served," the civil service commission or personnel officer having jurisdiction may authorize the reinstatement of a former officer or employee more than one year after the effective date of the former employee's resignation.

It should be noted, however, in the event a resignation is submitted while an employee of the State as the employer is on leave of absence without pay, such resignation, for the purpose of 4 NYCRR 5.4, is deemed to be effective as of the effective date of the commencement of his absence without pay. In such cases, however, the actual date of resignation for the purposes of 4 NYCRR 5.4 will be determined in consideration of "any time spent in active service in the military or naval forces of the United States or of the State of New York, and any time served in another position in the civil service of the same governmental jurisdiction ...."

Another potential situation to be considered is an employee's "abandoning his position."

Former 4 NYCRR 5.3(d), repealed effective February 27, 1979, provided that a state officer or employee absent for a period of ten or more days without an explanation would be deemed to have resigned from his position.22 In Bernstein v Industrial Commissioner,23 4 NYCRR 5.3(d) was held to violate the employee's right to due process.

Notwithstanding Bernstein, such a provision has been held lawful if the parties had agreed to memorializing such a term or condition of employment in a collective bargaining agreement as a result negotiations within the meaning of Article 14 of the Civil Service Law. Typically the courts will decline to void the provisions of such agreements except in cases involving a violation of a strong public policy.

Turning to another aspect of the State's "table of organization of personnel", it should be remembered that the public service of the State of New York consists of both a "civil service" and a "military service."

Thus far this article has addressed situations involving the resignation of individuals in the civil service of the State. With respect to personnel serving in the State's "Organized Militia"24, §77 of New York's Military Law provides for the resignations of personnel serving in the State's military service as follows:

1. A commissioned officer of the organized militia may tender his resignation at any time to the governor. If the governor shall accept the resignation, the officer shall receive an honorable discharge but if the officer tendering his resignation shall be under arrest or if charges have been preferred against him for the commission of an offense punishable by a court-martial, he may be given a discharge in such form as the governor may direct.

2. Enlistment in the regular army, air force, navy, marine corps or coast guard of the United States shall be deemed a resignation by the person so enlisting of all commissions in the militia held by him.

3. The acceptance of a commission in the organized militia shall be deemed a resignation by the person accepting the same of any other commission held by him in the militia.


Endnotes

1  4 NYCRR, in general, applies to officers and employees in the Classified Service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service. Municipal Civil Service Commissions and Personnel Officers typically have adopted similar rules and regulation pursuant to §20 of the Civil Service Law.

2 Although not all public employees are public officers, all public officers are public employees.

3 4 NYCRR 1.1, Application of Rules. Many local civil service commissions and personnel officers serving in lieu of a civil service commission have adopted similar rules or regulations pursuant to §20 of the Civil Service Law.

4 §22 of New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL follows this protocol.

5 For example, §2111 of the Education Law provides that an officer of a school district may "resign at a district meeting" or, in the alternative, the officer "shall also be deemed to have resigned if he filed a written resignation with the district superintendent of his district and such superintendent endorses thereon his approval and files the same with the district clerk."

6 Decisions of the of Education, Decision No. 17,688 where a collective bargaining agreement, in pertinent part, provided that teachers who are absent for 20 consecutive school days without notice shall be deemed to have resigned unless they have reasonable cause for failure to notify.

7 262 AD2d 1009, motion for leave to appeal denied, 94 NY2d 756.

8 175 AD3d 1406.

9 It should be noted that payments to an employee to induce him or her to resign rather that being served with charges not included in final average salary calculation [Horowitz v NYS Teachers' Retirement System, 293 AD2d 861].

10 See City of Mount Vernon Charter Article X, §§114-116.

11 See City of Mount Vernon Charter Article X, §§Articles VIII, VIII-s and IX.

12 Grogan v Holland Patent CSD, 262 AD2d 1009.

13  25 NYS2d 74.

14 In contrast, the Appellate Division rejected an educator's motion to rescind a settlement agreement resolving a disciplinary action because the educator had a change of mind, Nobile v Board of Educ. of the City Sch. Dist. of the City of N.Y.,166 AD3 527.

15 Shadur v Town of Pawling, 2020 NY Slip Op 01175.

16 152, AD2d 893, appeal dismissed, 74 N.Y.2d 944.

17  63 NY2d 643.

18 291 AD2d 298, motion for leave to appeal denied, 98 NY2d 613.

19 1971 Opinions of the Attorney General 12.

20  Mari v.Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 61.

21 In determining this one-year period, credit is given for time spent in active military service and, or, in service with the State or another political subdivision of the State.

22 Formerly Rule 37.4 of the Rules for the Classified Service. See, also, Stutson v O'Connell,276 AD 602.

23 59 AD2d 678.

24 The State's "Organized Militia" consists of the New York National Guard, the New York Air National Guard, the Naval Militia and the New York Guard.


 

January 18, 2023

Selected recent quasi-judicial decisions issued by the Commissioner of Education

Issuing a Certification of Good Faith pursuant to Education Law §3811[1]

An Education Law §3811[1] Certification of Good Faith requested by a Respondent in connection with an appeal to the Commissioner of Education is issued solely for the purpose of authorizing a board of education to indemnify such a Respondent for costs incurred in defending himself* in a proceeding arising out of the exercise of the Respondent’s powers or the performance of the Respondent’s duties as a board member, officer, employee or other actor described in §3811(1) unless the record establishes that the particular individual requesting such a certification acted in bad faith. Click on the URL below to access this decision posted on the Internet.

http://www.counsel.nysed.gov/Decisions/volume62/d18201 

* §22 of New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” Case summaries posted in NYPPL reflect this protocol.

School district officers and school district employees distinguished

The Petitioner in this Education Law §306 appeal sought the removal of the school district's records access officer [RAO]. Noting that the Commissioner of Education is authorized to remove “any trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officer,” i.e.  an “elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system”,  the Commissioner explained that the RAO is not a “school officer” listed in §306(1) but rather a school district employee. Accordingly, the Commissioner of Education has no authority to remove the RAO from the position under color of §306(1). Although all public officers are public employees, not all public employees are public officers.

Click HERE to access this Decision of the Commissioner of Education

Discontinuing the services of a probationary teacher

The New York City Department of Education may discontinue the employment of a probationary teacher pursuant to Education Law §2573(1)(a) at any time and for any reason absent the teacher's establishing that "the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith”* (Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 765 [1988]; see Education Law §§ 3012-c [1], 3012-d [9]; 8 NYCRR § 30-2.1 [b]; Kahn v New York City Dept. of Educ., 18 NY3d 457 [2012]; Appeal of H.H., 56 Ed Dept Rep, Decision No. 17,033; Appeal of Nicholaou-Guirguis, 32 id. 439, Decision No. 12,879).  The Commissioner has defined “bad faith” as “[d]ishonesty of belief, purpose, or motive” (Appeals of Prisinzano, 62 Ed Dept Rep, Decision No. 18,195, citing Black’s Law Dictionary [11th ed. 2019]). Click on the URL below to access this decision posted on the Internet:

http://www.counsel.nysed.gov/Decisions/volume62/d18212

* In contrast see http://www.counsel.nysed.gov/Decisions/volume62/d18211, reporting the decision of the Commissioner of Education in an appeal in which the Commissioner found that the record supported a finding that the educator's probationary appointment was discontinued in bad faith. 

Election of remedies

Petitioner’s originally commenced a proceeding pursuant to Article 78 of the Civil Practice Law and Rules in Supreme Court. Supreme Court dismissed the Article 78 proceeding based on the understanding that Petitioner would have an opportunity to pursue her claim via an Education Law §310 appeal to the Commissioner of Education. The court had deferred to the Commissioner of Education and denied the Article 78 petition "without prejudice to renew [the claim] before the Commissioner of Education.” The Commissioner ruled that "[given] this language, it would be inconsistent with the court’s decision to dismiss this Education Law §310 appeal based on an election of remedies [argument as the school district] successfully moved to dismiss the Article 78 petition on the ground of primary jurisdiction and filed its motion approximately four months after petitioner’s union declined to pursue a grievance." In the words of the Commissioner, the school district "... had the opportunity to move to dismiss the Article 78 petition based on election of remedies but chose not to do so" and declined to dismiss Petitioner's §310 appeal based on the school district's election of remedies argument at this stage of the dispute. Click on the URL below to access this decision posted on the Internet:

http://www.counsel.nysed.gov/Decisions/volume62/d18216

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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