Failure to exhaust administrative remedies fatal to employee's efforts for judicial review an alleged unfair practice charge filed with the Public Employment Relations Board

A school secretary [Plaintiff] formerly employed by the New York City Department of Education [DOE] told her union she had  been subjected to alleged harassment by her DOE supervisors. The union informed Plaintiff that it would not file a "special complaint" with DOE on her behalf. Plaintiff then filed an improper practice charge with the Public Employment Relations Board [PERB] contending that the union had violated of its duty of fair representation within the meaning of Civil Service Law §209-a by failing to file the "special complaint" with DOE.

A PERB administrative law judge held a hearing and subsequently dismissed Plaintiff's improper practice charge. Plaintiff next initiated a CPLR Article 78 action naming DOE and PERB as respondents. Supreme Court granted the Respondents' separate motions to dismiss Plaintiff's petition "for failure to exhaust her administrative remedies", and dismissed Plaintiff's Article 78 petition. Plaintiff appealed the Supreme Court's rulings.

Generally, a party who objects to the determination of an administrative agency is required to exhaust all available administrative remedies before seeking judicial review. As was noted by the Appellate Division in Amorosano-LePore v Grant, 56 AD3d 663, "... there are some exceptions to the rule requiring the exhaustion of administrative remedies, such as demonstrating that efforts to avail oneself of the available administrative procedures such as those that are set out in a statute or a collective bargaining agreement would be futile and thus excuse such failure to exhaust those remedies." The Amorosano-LePore court then opined that Amorosano-LePore failed to prove that efforts to exhaust her administrative remedies would have been "an exercise in futility."

In Plaintiff's case the Appellate Division said that administrative review of the ALJ's decision dismissing the charge of improper practice by PERB was available.*  Citing Jardim v New York StatePub. Empl. Relations Bd., 265 AD2d 329, the Appellate Division sustained the Supreme Court's rulings, explaining that Plaintiff, having failed to seek a review of the ALJ's decision by PERB, had failed to exhaust her administrative remedies.

The Appellate Division held that the Supreme Court had properly granted the  separate motions submitted by DOE and PERB to dismiss Plaintiff's petition insofar as asserted against each of them for failure to exhaust her administrative remedy by failing to appeal the ALJ's ruling to PERB and dismissed Plaintiff's appeal "with one bill of costs."

* See 4 NYCRR 213.2, 213.10.

Click HEREto access the Appellate Division's decision in instant case.

An Education Law §306 appeal to the Commissioner of Education will be dismissed if not properly served

The Petitioner in this appeal to the Commissioner of Education sought the removal of a member of the Board of Education [Member] alleging the Member uttered an obscenity in response to comments made by Petitioner.  

Petitioner's complainant alleged that Member directed “[u]nprofessional, rude, and vulgar language” toward her in response to her questions.  As redress, Petitioner asked the Commissioner [1] to remove the Member from the board; [2] bar the Member from running and serving on any school board in the future; and [3] give Petitioner a written apology for his unprofessional behavior.

Member, conceding that he used an obscenity but denied making the specific remark attributed to him by Petitioner, contended that Petitioner's appeal must be dismissed for a number of reasons including "improper service." 

The Commissioner agree that the appeal must be dismissed "for lack of personal service" as §275.8 (a) of the Commissioner’s regulations requires that "the petition be personally served upon each named respondent." Noting that Petitioner’s affidavit of service indicates that the petition was sent by U.S.mail and there was no evidence that Petitioner made any other attempt at effectuating service. Significantly, the Commissioner pointed out that "service by U.S.mail" does not constitute valid service of a petition pursuant to Education Law §306.

The Commissioner then noted that even assuming that Petitioner effected valid service on the district clerk, this would not constitute service on Member.  Citing 8 NYCRR 275.8[a], the Commissioner said that although a district clerk is authorized to accept service on behalf of the board of education, "the district clerk generally cannot do so for individual respondents."

Observing that Petitioner's application must be denied on procedural grounds, the Commissioner opined that Member’s conduct "was entirely inappropriate, particularly for a member of a board of education" and admonish Member “to comport himself in the future in a manner befitting a holder of public office.”

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

New York's Governor Kathy Hochul announces new senior administration appointments

On September 1, 2021, Governor Kathy Hochul announced two senior appointments to her administration. 

Kathryn Garcia has been appointed Director of State Operations. Previously, she served as the Commissioner of the New York City Department of Sanitation, leading its 9,700 uniformed and civilian employees. Over the course of more than six years at the helm, Ms. Garcia led the department through nearly 15 feet of snow, expanded environmental programs from e-waste collection to the largest curbside organics program and implemented innovative technology solutions to manage the both its personnel and fleet. In addition to her duties at the Department of Sanitation, she served as the City's Lead Czar, developing a plan to eliminate childhood elevated blood lead levels, and during the winter of 2019, she also stepped in as the interim Chair of the New York City Housing Authority to begin implementation of an agreement with the federal government. During the pandemic, Commissioner Garcia served as the COVID-19 Food Czar, delivering over 1 million meals a day to hungry New Yorkers. A lifelong New Yorker, Commissioner Garcia launched her career as an intern at the Department of Sanitation. Before returning to the Department as Commissioner, she served as Chief Operating Officer at the New York City Department of Environmental Protection, where she was responsible for the operation of the City's water supply, water and sewer system, and wastewater treatment plants. Prior to her service at DEP, Garcia was Vice President at Appleseed. Commissioner Garcia earned her B.A. at the University of Wisconsin-Madison.

Neysa Alsina, Esq. has been appointed Special Advisor on Pandemic Relief.

Ms. Alsina previously served as chief counsel to the New York City Comptroller, overseeing the Office's legal affairs and representing its interests in safeguarding the fiscal health of the City and the assets of the City's five public pension systems. Ms. Alsina previously served as Senior Policy Advisor to Congresswoman Nydia M. Velázquez in Washington, D.C. Prior to that role, she was the Counsel to the New York City Bar Association where she provided legal advice on a broad range of matters. Ms. Alisna also previously counseled on a variety of legal matters at Municipal Credit Union. Ms. Alsina received a J.D. from Fordham University School of Law and a B.A. and B.S. from Rutgers University.

Accolades submitted by current and former supervisors tempers the penalty recommended be imposed on a correction officer found guilty of using excessive force against an inmate

OATH Administrative Law Judge Ingrid M. Addison recommended a 60-day suspension without pay for a Department of Correction correction officer [CO] found guilty of disciplinary charges involving the use of excessive force against an inmate whom CO struck in the face and head on multiple occasions, submitting a false and misleading use of force report regarding the incident, and having another officer who was not his supervisor complete his report.

Judge Addison found the CO’s defense that he felt himself in imminent danger of serious bodily injury to be incredible, making his use of deadly force unjustified. The ALJ also found that CO mischaracterized the inmate’s posture in his report and at his interview, in an attempt to justify his own reaction.

ALJ Addison, however, recommended that CO be suspended for 60 days without pay in lieu of termination because of numerous accolades from current and former supervisors at the Department as well as from his former supervising Coast Guard official, suggesting that CO's behavior in this case was a significant departure from his norm.

Click HERE to access Judge Addison findings and recommendation.

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A Reasonable Disciplinary Penalty Under the Circumstances- The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE.

 

Former Economic Advisor to President Obama to Become New York's Top Financial Regulator

On August 31, 2021, Governor Kathy Hochul announced that Adrienne Harris, Esq.  has been nominated to lead the New York State Department of Financial Services as its next Superintendent. Formerly a top economic advisor to President Obama, Ms. Harris will become the state's top financial regulator tasked with overseeing the banking and insurance industries and their compliance with state laws as New York works to rebuild its economy in the wake of the COVID-19 pandemic, if confirmed by the Senate.

Ms. Harris began her career as an Associate at Sullivan and Cromwell LLP in New York City representing a number of U.S. and non-U.S. based corporations in various forms of litigation and regulatory matters, before accepting a position at the United States Department of the Treasury under President Obama. While at the Treasury Department, Ms. Harris served as a Senior Advisor to both Acting Deputy Secretary and Under Secretary for Domestic Finance, Mary Miller, and Deputy Secretary, Sarah Bloom Raskin. As Senior Advisor, Ms. Harris focused on a number of financial policy issue areas which were, and continue to be, critical to the advancement of the national economy. This work ranged from helping jumpstart national financial reform efforts to finding ways to advance fintech, identifying solutions to the student loan crisis, analyzing the nexus between foreign investment and national security, and working to promote financial intelligence and health in communities throughout the country.

Following her time at the Treasury Department, Ms. Harris then joined The White House, where she was appointed as Special Assistant to the President for Economic Policy, as part of the National Economic Council. In this role, Ms. Harris managed the financial services portfolio, which included developing and executing strategies for financial reform and the implementation of Dodd-Frank, while also continuing to advance fintech initiatives, consumer protections for the American public, cybersecurity and housing finance reform priorities.

Since leaving the White House in January 2017, Ms. Harris went on to serve as General Counsel and Chief Business Officer, and presently as Advisor at States Title, Inc. (now DOMA), which provides title insurance and settlement services in a number of state throughout the nation. Ms. Harris also currently serves as a Professor and Faculty Co-Director at the Gerald R. Ford School of Public Policy's Center on Finance, Law and Policy at the University of Michigan, as well as a Senior Advisor at the Brunswick Group in Washington D.C. where she advises multinational corporations on mergers and acquisitions, stakeholder communications and management, future-proofing and policy intelligence.

Ms. Harris graduated from Georgetown University with a Bachelor of Arts degree and subsequently earned her Juris Doctor from Columbia Law School and a Master's in Business Administration from New York University.