Conducting school district board and business meetings

Conducting school district board and business meetings

Appeal of Bruce, Decisions of the Commissioner of Education, Decision No. 17376

This decision by the Commissioner of Education addresses a number of significant issues involving properly conducting Board Meetings and district business meetings.

Among the issues addressed by the Commissioner are the following:

1. Several procedural issues with respect the Commissioner having jurisdiction

2. Conducting board and business meetings without notice to the public

3. Following the law and rules concerning initiating and completing capital construction projects.

4. Conforming with relevant building code requirements.

The Commissioner concludes her decision with the following admonitions to the respondents in this appeal:

Although I am constrained to dismiss the appeal on procedural grounds, this decision should not be construed as condoning respondent’s actions in failing to follow procedures required for capital projects in conducting the Black Box heater/classroom project.  The violations of law involved were serious, and the failure to treat the project as a capital project and submit the plans and specifications for the project, or a summary thereof, to SED for approval placed the health and safety of students and other occupants of the space at risk.  I also note that the record indicates that petitioner, who has an engineering background, observed deficiencies in the Black Box Theater space that he believed raised building safety concerns.  He raised those concerns with respondent and then contacted me, which led to the site inspection by SED, and ultimately to remediation of the building code violations that were found.  Whether or not members of respondent board appropriately chastised petitioner for acting independently of the board, the fact remains that petitioner’s decision to report the building code violations to SED resulted in the protection of the health and safety of students and others who occupied the Black Box Theater space.  

Decision No. 17,376

Appeal of KENNETH M. BRUCE from action of the Board of Education of the City School District of the City of Albany regarding the manner of conducting board meetings and district business.

Decision No. 17,376

(April 16, 2018)

Honeywell Law Firm, PLLC, attorneys for respondent, Jeffrey D. Honeywell, Esq., of counsel

ELIA, Commissioner.--Petitioner, a former board member^[1], appeals certain actions taken by the Board of Education of the City School District of the City of Albany (“respondent” or “board”).  While the petition is not clear, petitioner’s allegations stem from two actions undertaken by respondent: specifically, a meeting of other board members and counsel held on June 30, 2016, and construction of a theater/classroom referred to by petitioner as the “Black Box Theater.”  The appeal must be dismissed. 

The parties do not dispute that on June 30, 2016, all other members of the board and the school attorney, met, without providing notice to petitioner or the public.^[2]  

The parties also do not dispute that the theater/classroom project (“project”) that resulted in use of the space as the Black Box Theater was completed between June 2015 and March 2016 in the Abrookin Career and Technical Center, a school located within respondent’s district.   It is also undisputed that the project was erroneously treated as a minor maintenance project, even though it involved reconstruction at a cost in excess of $130,000. It appears from the record that the project did not follow the rules and procedures for capital projects as it was not approved by the voters as required by Education Law §416; plans and specifications for the project, or an outline thereof, were not submitted to the New York State Education Department (“SED”) for approval of the Commissioner prior to construction as required by Education Law §408(1); and it was constructed without an architectural plan and was used as a theater without a certificate of occupancy.^[3]  The parties also do not dispute that, in July 2016, SED conducted a site inspection and identified numerous areas of nonconformance with applicable building codes that needed to be remedied before the space could be used as instructional space.  In its answer, respondent admits that SED determined:

[T]he space was non-compliant with the Uniform Code and required an immediate fix which included 12 safety adjustments, including deconstructing the stage and the seating risers.

Respondent then determined that it would undertake the work needed to correct the cited building code violations identified by SED and the space would be returned to use as classroom space. Upon completion of the work, SED issued a certificate of occupancy for use of the space as classroom space commencing with the start of classes in September of the 2016-2017 school year.

The record indicates that respondent retained an attorney, James Evans, from Damon Barclay, LLP, the law firm that also served as bond counsel to the district, to conduct an “audit/investigation” of the project.  The record also indicates that respondent retained its “internal auditor,” Marvin & Co., “to support the audit/investigation” of the project.

As stated above, the petition is not clear, but it appears that petitioner challenges two sets of actions undertaken by respondent, specifically, a meeting of other board members and counsel held on June 30, 2016, and respondent’s various actions surrounding the construction  of the theater/classroom, including its audit/investigation of the project and response to such audit/investigation, culminating in a March 7, 2017 statement by respondent regarding changes in district procedures for evaluation and implementation of small facilities projects.

With respect to the June 30, 2016 meeting, petitioner argues that he was “involuntarily excluded” from the meeting and that his exclusion “violated [his] right as a duly elected board member.”  Petitioner further argues that he was never provided with “proof that this particular meeting was covered by one of the exemptions to [New York State] Open Meetings Law” (“OML”).  

With respect to respondent’s actions surrounding the construction and eventual demolition of a theater/classroom, petitioner alleges that it was built “without following any of the policies, procedures, statues or laws.”  Petitioner also alleges that the “board voted on multiple occasions, to overlook this situation ...” and “conduct[ed] a watered down investigation using investigators, who were not independent.”

Petitioner also alleges that “the rights of Albany residents have been violated” because of his “systemic exclusions from important debate and deliberations related to the business of the [school district]” and that the actions of the board are not only a “personal affront” but “disrespectful and insulting to Albany citizens.”

Petitioner does not include a request for specific relief, though the petition does contain specific allegations of violations of law committed by respondent.  He states that he could find “no similar situation within New York” and therefore, he has “no recommended remedy” and requests only such appropriate relief as the Commissioner deems just and proper. 

Respondent argues that the appeal must be dismissed as untimely, for mootness, for failure to state a claim, and because the petition is not properly verified.  Respondent also argues that certain claims should be dismissed.  With respect to petitioner’s claim that the June 30, 2016 meeting violated OML, respondent argues that the Commissioner lacks jurisdiction over OML claims and that, in any event, respondent acted lawfully.  With respect to petitioner’s claims on behalf of others, respondent argues that petitioner lacks standing.  Finally, respondent argues that “to whatever extent a claim may be made for removal of any member of the [b]oard,” petitioner has failed to name and serve necessary parties.

I will first address several procedural issues. Respondent alleges that the petition lacks proper verification. Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  The petition contains 127 paragraphs and the verification is on page five of the petition, after paragraph four.  Respondent argues that this “raises sufficient doubt” as to whether paragraphs five through 127 have actually been verified.  However, while there is a blank verification form on page 5 of the petition, the petition submitted to my Office of Counsel contains the required verification, which properly attests to all allegations in the petition.  A defect in the verification of the copy of a pleading served upon a party is insufficient to bar filing of a pleading, provided that the original pleading submitted to the Department for filing includes a proper verification (Appeal of K.M. and T.M., 57 Ed Dept Rep, Decision No. 17,095, pet. to rev dsmd sub nom Carthage UFSD v. Commissioner of Educ, et al. Sup. Ct. Albany Co. (Mott, J.) 11/28/17, n.o.r.; Appeal of Johnson, 46 id. 67, Decision No. 15,443; Appeal of O.W., 43 id. 150, Decision No. 14,949).  Accordingly, I decline to dismiss the petition for lack of proper verification.

I note that a petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (see 8 NYCRR §275.10).  Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Escobar, 57 Ed Dept Rep, Decision No. 17,256; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846; Application of Schenk, 47 id. 375, Decision No. 15,729).  Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (see, Appeal of Stepien, 48 Ed Dept Rep 487, Decision No. 15,926; Appeal of Darrow, 43 id. 394, Decision No. 15,029). 

The petition in this appeal consists of 62 pages with a narrative of events that involve alleged wrongdoing by respondent, but contains no request for relief as required by 8 NYCRR §275.10, and indeed specifically requests that I determine what relief should be granted.  In his reply, petitioner asserts that he is not seeking removal of any board members, which means that the petition is not intended as an application for removal under Education Law §306.  Thus, in declining to make any request for relief and affirmatively requesting that I determine what relief may be appropriate, petitioner is effectively asking that I investigate the matter and take appropriate action.  However, it is well settled that an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).  The Commissioner has previously ruled that where the sole relief sought is an investigation, the appeal must be dismissed (see, Appeal of Race, 53 Ed Dept Rep, Decision No. 16,567; Appeal of Levendusky, 52 id., Decision No. 16,455).  As described above, I am unable to discern the nature of the relief sought by petitioner, and thus cannot assess whether petitioner is entitled to any such relief. Respondent has been placed in the position of speculating about what relief is being sought and what possible defenses should be raised in light of such request for relief, which is prejudicial to respondent.   Thus, petitioner has violated 8 NYCRR §275.10 by failing to present a clear and concise statement of his claim, showing he is entitled to relief, and the appeal must be dismissed on that basis.

The appeal must also be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836). 

To the extent petitioner claims that respondent violated the Open Meetings Law with respect to the June 30, 2016 meeting, the appeal must be dismissed for lack of jurisdiction.  Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

All of the actions taken by respondent of which petitioner complains occurred in the past and have concluded, and there is no live controversy.  With respect to petitioner’s claims that he was unlawfully excluded from the June 30, 2016 meeting, has been systemically excluded thereafter from deliberations of the board of education and his ability to act as a board member has been thus impaired, the record indicates that petitioner resigned from the board in May 2017.  With respect to respondent’s actions relating to the Black Box theater/classroom project, the record indicates that the former Black Box Theater space was renovated in 2016 to convert it back to classroom space and bring it into compliance with applicable building code standards and that SED issued a certificate of occupancy prior to the start of the 2016-2017 school year.  The record also indicates that respondent has taken steps to prevent a recurrence of such treatment of small capital projects through changes in procedures, staffing and training.  Therefore, in both instances, no meaningful relief can be granted and such claims must be dismissed.

In light of the above, I need not address the parties’ remaining contentions.

   

Although I am constrained to dismiss the appeal on procedural grounds, this decision should not be construed as condoning respondent’s actions in failing to follow procedures required for capital projects in conducting the Black Box heater/classroom project.  The violations of law involved were serious, and the failure to treat the project as a capital project and submit the plans and specifications for the project, or a summary thereof, to SED for approval placed the health and safety of students and other occupants of the space at risk.  I also note that the record indicates that petitioner, who has an engineering background, observed deficiencies in the Black Box Theater space that he believed raised building safety concerns.  He raised those concerns with respondent and then contacted me, which led to the site inspection by SED, and ultimately to remediation of the building code violations that were found.  Whether or not members of respondent board appropriately chastised petitioner for acting independently of the board, the fact remains that petitioner’s decision to report the building code violations to SED resulted in the protection of the health and safety of students and others who occupied the Black Box Theater space. 

THE APPEAL IS DISMISSED.

 

---

[1]Petitioner was appointed to the board in July 2014 and then elected to a four-year term in November 2014.  He served a one-year term as president of the board from January 2016 through December 2016. The record indicates that petitioner resigned from the board effective May 4, 2017, and respondent accepted his resignation on May 5, 2017.

[2]Respondent contends that the “sole intent of the meeting was for the purpose of receiving legal advice” from board counsel.  Respondent further contends that the legal advice concerned their response to actions by petitioner that were believed to place the district “at legal risk.” 

[3]Petitioner also contends that the construction and procurement contracts for the project were unlawful in that they did not meet competitive bidding requirements, which is denied by respondent.  Other than making conclusory allegations in this regard, petitioner has submitted no proof of a violation of competitive bidding requirements.

Audits and examination reports issued April 17, 2018 by NYS Comptroller Thomas P. DiNapoli

Audits and examination reports issued April 17, 2018 by NYS Comptroller Thomas P. DiNapoli 

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

Village of Dansville – Water and Sewer Operations (Livingston County)
The board did not adequately segregate the water and sewer billing and collection process. In addition, the board does not properly monitor water loss.

Town of Moreau – Budgeting and Multiyear Planning (Saratoga County)
The budgeted revenues and appropriations of the town-wide general fund were reasonable as compared to the actual revenues and expenditures. However, the board adopted unrealistic estimates of revenues and appropriations in the part-town general, part-town highway, sewer and water funds.

New Hope Fire Department – Board Oversight (Cayuga County)
The board has not established written policies and procedures for cash disbursements or reviewed monthly bank reconciliations. Additionally, the board did not establish written policies and procedures for debit card usage or review the bank statements and supporting documentation to ensure debit card transactions are for appropriate department purposes.

Real Property Tax Exemptions Administration (2017MR-4)
Auditors examined real property tax exemptions in ten towns and found 51 percent of those reviewed lacked one or more pieces of supporting documentation to verify eligibility. Some exemptions lacked proper applications, renewal forms or supporting documentation. Auditors also found some town assessors misclassified or failed to grant properly supported exemptions.

Town of Shandaken – Employee Compensation and Benefits (Ulster County)
Town officials overpaid health insurance buyout incentives to two employees by more than $4,900 and underpaid incentives to two employees by $1,680 during the audit period. Town officials also did not properly withhold employee contributions for health insurance coverage.

Village of Spencer – Board Oversight (Tioga County)
The board does not periodically review bank statements, bank reconciliations or any other supporting records. Additionally, the board does not perform the required annual audit of the Clerk-Treasurer’s records and reports, further diminishing its ability to monitor the village’s financial operations

Village of Suffern – Budget Review (Rockland County)
Significant revenue and expenditure projections in the tentative budget are reasonable. However, the village budgeted $4.2 million in water meter and sewer revenue, but based on collections of water and sewer rents in prior years, auditors estimate the 2018-19 collections will be approximately $3.9 million.

City of Yonkers – Financial Operations (Westchester County)
City officials need to improve their planning and monitoring of capital projects and the use of bond proceeds. Auditors found officials did not ensure accounting records were accurate, supported and complete and they did not consistently apply accounting principles or adequately account for financial transactions that affected the city’s operations. Additionally, city officials did not perform internal audits or conduct assessments of internal controls as required.

Posting a parody of a Facebook page and Free Speech Rights

Posting a parody of a Facebook page and Free Speech Rights 
Novak v. The City of Parma, et al., 17-CV-2148 (N.D. Ohio)

Hodgson Russ, LLP, a law firm with offices in Albany, New York, Buffalo, New York, Saratoga Springs, New York and New York City, has called attention to a recent federal court decision highlighting the potential for tension resulting from posting a "parody" of a Facebook page on Facebook and the First Amendment rights of the individual doing the posting, particularly when the page involves a governmental entity.

The firm notes that the decision is especially timely, considering the proliferation of "fake Facebook pages has gained significant notoriety since the 2016 Presidential Election and resulting Russia investigation."

The full text of the Hodgson Russ article is posted on the Internet at:

http://www.hodgsonruss.com/newsroom-publications-10333.html

Judicial immunity

Judicial immunity

Burdick v. Town of Schroeppel, USCA, Second Circuit, 17-1169-cv

In the course of reviewing an appeal from a federal district court’s decision brought by Petitioner Steven D. Burdick, the United States Court of Appeals, Second Circuit the issue of  judicial immunity from lawsuit in which Burdick alleged that his constitutional rights were violated by actions of Schroeppel Town Justice Armen J. Nazarian, Oswego, New York and County Court Judge Donald Todd, the Town of Schroeppel, Oswego County, New York* in the course of their presiding over his 2013 state court criminal trial and subsequent appeal.

The Second Circuit addressed the question of judicial immunity from litigation, explaining:

1. Judges acting in their judicial capacity are absolutely immune from suit, even where the plaintiff asserts constitutional violations under §1983, citing Bliven v. Hunt, 579 F.3d 204.

2.  Absolute judicial immunity applies even if the judge allegedly acted in bad faith or with malice. and such judicial immunity can be overcome only if (1) the act is not taken in the judge’s judicial capacity, or (2) the act, “though judicial in nature, [is] taken in the complete absence of all jurisdiction,” citing Mireles v. Waco, 502 U.S. 9.

The challenged acts in this action included typical judicial acts arising out of Burdick’s 2013 criminal conviction and appeal and acts arising out of, or related to, individual cases before the judge are considered judicial in nature.

As the judicial officials named by Burdick had jurisdiction over the criminal conviction and appeal  the district court properly concluded that they were entitled to absolute judicial immunity.

* Burdick also named a criminal defense attorney and the Oswego County Commissioner of Jurors as defendants in the federal action.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/04eb7e6c-155e-4423-ad76-1c182410775b/13/doc/17-1169_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/04eb7e6c-155e-4423-ad76-1c182410775b/13/hilite/

Terminating the Special Counsel

In May 2017 Acting Attorney General Rod J. Rosenstein appointed Robert S. Mueller III, a former Director of the Federal Bureau of Investigation, as Special Counsel pursuant to the authority set out in 28 CFR 600. Mr. Mueller serves at the pleasure of Acting Attorney General.

Periodically there has been speculation in the media concerning possible efforts to terminate the Special Counsel from the position.

With respect to the removal of a Special Counsel, 28 CFR 600.7(d) provides as follows:

(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General [or, in the instant situation, Acting Attorney General Rosenstein or his successor, if any]. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

Subparagraph (d) of Mr. Rosenstein's "ORDER NO. 3915-2017"* to Mr. Mueller setting out the terms and conditions of his appointment as Special Counsel provides that "(d) Sections 600.4 through 600.10 of the Code of Federal Regulations are applicable to the Special Counsel."

Also, 28 CFR 600.9 Notification and reports by the Attorney General, in pertinent part, provides:

(a) The Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, with an explanation for each action -

            (1) Upon appointing a Special Counsel;

            (2) Upon removing any Special Counsel; 

* ORDER NO. 3915-2017 

APPOINTMENT OF SPECIAL COUNSEL

TO INVESTIGATE RUSSIAN INTERFERENCE WITH THE

2016 PRESIDENTIAL ELECTION AND RELATED MATTERS

By virtue of the authority vested in me as Acting Attorney General, including 28 U.S.C. §§509, 510, and 515, in order to discharge my responsibility to provide supervision and management of the Department of Justice, and to ensure a full and thorough investigation of the Russian government's efforts to interfere in the 2016 presidential election, I hereby order as follows:

(a) Robert S. Mueller III is appointed to serve as Special Counsel for the United States Department of Justice.

(b) The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:

            (i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; 

and

            (ii) any matters that arose or may arise directly from the investigation; 
and

            (iii) any other matters within the scope of 28 C.F.R. §600.4(a).

(c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.

(d) Sections 600.4 through 600.10 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.

Date 5/17/17                                   s/Rod J. Rosenstein

                                                          Acting Attorney General

Reassigning a member of the President's Cabinet to another Cabinet position

Reassigning a member of the President's Cabinet to another Cabinet position
Statutory Authority: Article II.2.2 of the Constitution of the United States  

Recently there has been speculation in the media that should the incumbent Attorney General be dismissed or the position otherwise becomes vacant, the President could appoint another member of the Cabinet to the position without having to submit the nomination to the Senate for its advice and consent.

It appears that such an effort would unconstitutional except with respect to a "recess appointment" as was demonstrated during Andrew Jackson's presidency.

Roger B. Taney, then serving as President Jackson's Attorney General [1831-1833] was appointed to, and then continued to serve in a recess appointment as Secretary of the Treasury [1833-1834].

Jackson subsequently nominated Taney to become Secretary of the Treasury, an appointment necessarily to be "by and with the Advice and Consent of the Senate." The Senate, however, did not consent to Taney's nomination.*

This supports the argument that "transferring" a member of the Cabinet to another position in the Cabinet requires "the Advice and Consent of the Senate" unless made as a "recess appointment" and if so made, will ultimately require affirmative action by the Senate for the individual serving pursuant to the authority of the recess appointment to be continued in the office to which he or she has be "transferred."

* Subsequently Taney joined the Supreme Court [March 15, 1836 - October 12, 1864] and served as Chief Justice, succeeding John Marshall.

The Commissioner of Education will dismiss an appeal submitted pursuant to Education Law §306, in whole or part, if there are procedural defects or omissions

The Commissioner of Education will dismiss an appeal submitted pursuant to Education Law §306, in whole or part, if there are procedural defects or omissions

Appeal of April Trojahn, Decisions of the Commissioner of Education, Appeal #17,360

The Commissioner of Education will dismiss an appeal submitted pursuant to Education Law §306, in whole or part, if there are procedural defects or omissions. Listed below are ten common procedural errors or omissions that will result in the Commissioner of Education  declining to consider the merits of a §306 appeal:

1. A notice of petition that fails to comply with 8 NYCRR §277.1(b) is a fatal defective and does not secure jurisdiction over the intended individual. Such notice of petition  alerts a party to the fact that he or she is the subject of a proceeding and the failure to comply with 8 NYCRR §277.1(b) necessarily results in a jurisdictional failure and requires dismissal of the application.

2. The claim is beyond the jurisdiction of the Commissioner in an appeal being  brought pursuant to Education Law §310.

3. The claim has been untimely filed and such the failure to timely file the application has not been excused. For example, if an appeal to the Commissioner must be commenced within 30 days from the making of a decision or the performance of the act complained of, a delay in filing the application may excused by the Commissioner for good cause shown.

4. The Commissioner lacks jurisdiction. For example, the Commissioner will not adjudicate claims which may be raised in a court of competent jurisdiction nor impose discipline on district employees as employee discipline is within a school district's exclusive jurisdiction and generally subject to procedures established in statute or in applicable collective bargaining agreements and/or employment contracts.

5. If a petition seeks to have the Commissioner discipline a named individual who is a "school district employee" rather than a "school officer," school employees are not subject to discipline by the Commissioner pursuant to Education Law §306.* The Commissioner lacks jurisdiction to impose discipline on BOCES and school district employees, which includes the placement of letters of reprimand in an employee’s file. Such employee discipline is within a BOCES' or school district’s exclusive jurisdiction and generally subject to procedures established in statute or in applicable collective bargaining agreements and, or, employment contracts.

6. A necessary party has not been served. A necessary party is one whose rights would be adversely affected by a determination of an appeal in favor of a petitioner and must be joined as such. "Joinder" requires that an individual be clearly named as a respondent in the caption of the appeal and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

7. In the event the appeal seeks the removal of a school officer, the notice accompanying a removal application must specifically advise the school officer that an application is being made for his or her removal from office. For purposes of Education Law §306, “school officers” include trustees, members of boards of education, clerks, collectors, treasurers, district superintendents, or “other school officer[s].” The Commissioner of Education lack jurisdiction to remove a school district employee who is not a school officer as so defined.

8. The petition submitted to the Commissioner's Office of Counsel has not been "verified."

9. There must be proper service of the petition and the affidavit of service must be filed with the petition indicating that the petition was served as required by 8 NYCRR §275.8(a). §275.8(a) is set out below:

(a) Petition.

A copy of the petition, together with all of petitioner's affidavits, exhibits, and other supporting papers, except a memorandum of law (unless the appeal is a charter school location/co-location appeal pursuant to section 276.11 of this Title, in which case the memorandum of law shall be served with the petition) or an affidavit in support of a reply, shall be personally served upon each named respondent, or, if a named respondent cannot be found upon diligent search, by delivering and leaving the same at the respondent's residence with some person of suitable age and discretion, between six o'clock in the morning and nine o'clock in the evening, or as otherwise directed by the commissioner.

If a school district is named as a party respondent, service upon such school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of such school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service.

If a board of cooperative educational services is named as a party respondent, service upon such board shall be made personally by delivering a copy of the petition to the district superintendent, to a person in the office of the district superintendent who has been designated by the board to accept service, or to any member of the board of cooperative educational services.

Pleadings may be served by any person not a party to the appeal over the age of 18 years.

If the last day for service of the petition falls on a Saturday or Sunday, service may be made on the following Monday; and if the last day for such service falls on a legal holiday, service may be made on the following business day.

10. Also it should be noted that the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310.

Below is a listing of the several Parts of 8 NYCRR addressing "Appeals and Other Proceedings Before the Commissioner." Below are links to these several Parts.

Part 275 Parties and Pleadings

Part 276 Rules of Practice

Part 277 Practice on Application for Removal of School Officers

Part 278 Practice on School District Reorganization Hearings

Part 279 Practice on Review of Hearings for Students with Disabilities

Part 280 Overlapping State and Federal Requirements

Part 281 Appeals to Commissioner Pursuant to Education Law Section 3020(3)

* Although all school officers are employees of the school district, not all school district employees are school officers.

The Trojahn decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17360

Some due process consideration in the event an employee is terminated from his or her probationary period

Some due process consideration in the event an employee is terminated from his or her probationary period

Marshall v Simon, 2018 NY Slip Op 02327, Appellate Division, Second Department

Terminated from his probationary employment as a correction officer, Evan Marshall, [Petitioner] challenged his dismissal, alleging, among other things, that his probationary period had ended prior to his termination and that he was therefore entitled to certain protections under the Civil Service Law as a "tenured" employee. In effect, Petitioner was contending that he had attained tenure by "tenure by estoppel,* sometimes referred to as "tenure by acquiescence" by operation of law.* 

Supreme Court denied Petitioner's claims and dismissed the proceeding. The Appellate Division affirmed, explaining "A probationary employee may 'be dismissed for almost any reason, or for no reason at all' [and] may be terminated without a hearing** and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."

It appears that Petitioner's probationary term was extended by the number of days that Petitioner had not perform the duties of the position due to absence from work. Citing Tomlinson v Ward, 110 AD2d 537, affirmed 66 NY2d 771, the Appellate Division observed that a probationary period "... is designed to enable the appointing officer to ascertain the fitness of the probationer and to give the probationer a reasonable opportunity to demonstrate the ability to perform the duties of the office [and] [t]he period should be measured by the number of days a probationer is actually working at the job".

For example, 4 NYCRR 4.5, which applies to Classified Service employees of the State as the employer, requires such an extension although it also permits an appointing authority to exercise discretion and consider a portion of such absence as probationary service. Although an appointing authority may be permitted to count part of such absences as time served in the probationary period, this is discretionary. In contrast, the State’s Military Law provides that a probationer who enters military service during his or her probationary period will be deemed to have satisfactorily completed his or her probationary period if honorably discharged from the service and timely returns to his or her position.

Finding that Petitioner's probationary period was properly extended for 25 days to reflect his absences from work, the court ruled that Petitioner's "termination therefore occurred while he was a probationary employee." Noting, further, that Petitioner did not demonstrate, or even adequately allege, that he was terminated in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law. the Appellate Division held that Supreme Court properly denied Marshall's petition and dismissed the proceeding.

* As the Court of Appeals ruled in McManus v Hempstead Union Free School District, 87 NY2d 183, a probationary employee may attain tenure by estoppel [sometimes referred to as “tenure by acquiescence”] when the appointing authority accepts the continued services of the individual, but fails to take the action required by law, rule or regulation to either grant or deny the individual tenure prior to the expiration of the employee’s maximum period of probation. One significant exception to this rule, in Mendez v Valenti, 101 AD2d 612, the Appellate Division held that in the event a probationary employee is continued on the payroll for a brief period after the expiration of his or her probationary period for administrative convenience, such as to coincide with the end of a payroll period, such continuation on the payroll does not automatically result in the individual attaining tenure by estoppel.

** After completing his or her minimum period of probation, a probationary employees may be discharged at any time without charges preferred, a statement of reasons given or a hearing held. A probationary employee so terminated, however, may be entitled to a "name-clearing" hearing where the basis for dismissal is of a "stigmatizing nature" as the individual so terminated is entitled to some due process to permit him or her to clear his or her name [see Matter of Stanziale, 55 NY2d 735]. In any event, absent a violation of a constitutional or statutory provision of law, reinstatement to his or her former position is not a remedy available to the individual should he or she prevail at his or her name-clearing hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02327.htm

An autopsy of a Freedom of Information request

An autopsy of a Freedom of Information request
Gartner v New York State Attorney General's Off., 2018 NY Slip Op 02381, Appellate Division, Third Department

New York State's Freedom of Information Law [FOIL] is based on the concept that all government records and document should be available to the public except where such disclosure is prohibited by law.* Indeed, there is no bar to providing information pursuant to a FOIL request, or otherwise, that could be denied pursuant to one or more of the exceptions set out in FOIL that the custodian could rely upon in denying a FOIL request, in whole or in part. 

Further, a formal FOIL request is not required as a condition precedent to obtaining public documents or records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a formal FOIL request to obtain the desired information or records. 

Barbara Gartnersubmitted a Freedom of Information [FOIL] request to the Office of the New York State Attorney General [OAG] seeking certain information.. The OAG told Ms. Gartner that it had located 505 pages that were responsive to her FOIL request and specified the cost and method of obtaining those documents.

Ms. Gartner sent a check in the amount specified but OAG then informed her that "due to a change in circumstances" in related litigation "the 505 pages that were identified for disclosure were now being withheld as exempt." In response to her administrative appeal challenging this decision, it was determined that Ms. Gartner was entitled to the 195 pages of documents that were already publicly available on the Attorney General's website and five pages of partial redacted documents but  OAG could withhold the remaining pages.*

A few months later, following resolution of the relevant litigation, Ms. Gartner resubmitted her FOIL request. OAG denied the request, concluding that all documents were exempt. Following the denial of her administrative appeal of this decision, Ms. Gartner initiated a CPLR Article 78 proceeding challenging that denial. The parties negotiated a settlement in which Ms. Gartner agreed to withdraw her petition without prejudice in exchange for the disclosure of 305 of the 310 pages that were not already publicly available. As part of the settlement, the Attorney General's Office confirmed that the 505 pages that had previously been identified as responsive represented "the entire universe of documents that respond to the subject FOIL request."

Ms. Gartner reviewed the 305 pages she had received and then realized that they referenced other documents that she had not received. She then commenced this second CPLR Article 78 proceeding seeking an order compelling OAG to conduct a diligent search for responsive documents, permitting her or an independent third party to examine the files maintained by OAG to determine whether they provided all of the responsive documents, compelling OAG to disclose all records withheld or redacted or submit them for an in camera review by the court, and awarding her counsel fees.

OAG then voluntarily supplied unredacted copies of all pages that had previously been disclosed and the remaining five pages of the original 505 pages and subsequently provided Ms. Gartner with 56 additional pages. OAG then provided the court with 949 additional pages that they withheld based on claimed exemptions for intra-agency materials, inter-agency materials and attorney work product for its review in camera together with an affidavit listing which exemption applied to each group of pages.

Supreme Court concluded that the 949 pages were properly withheld under the stated exemptions, but awarded Ms. Gartner  counsel fees based on the way that OAG "had handled the FOIL request." Ms. Gartner appealed the court's decision.

Addressing Ms. Gartner contentions that OAG "must be ordered to conduct a further diligent search for responsive records, provide a new certification of a diligent search and/or allow petitioner or an independent party to conduct such a search" the Appellate Division said:

1. "When faced with a FOIL request, an agency must either disclose the record sought, deny the request and claim a specific exemption to disclosure, or certify that it does not possess the requested document and that it could not be located after a diligent search".

2. Supreme Court did not err in determining that OAG had conducted and certified a diligent search, as required.

3. There is no legal authority to allow a petitioner or independent third party to conduct a search of an agency's records to locate responsive documents and such a search would be improper because it would inevitably permit the person to view agency records that were not responsive or that were exempt from disclosure.

As to the propriety of OAG withholding of document, FOIL presumes that government documents are available for inspection and copying unless they are statutorily exempt by Public Officers Law §87(2). The Appellate Division then addressed the authority of the custodian of the documents demanded to withholding them, noting that the agency resisting disclosure under FOIL bears the burden of showing that the responsive document "falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access.

With respect to OAG's reliance on the exemptions for intra-agency and inter-agency materials and attorney work product the court explained that "An exemption from FOIL disclosure exists for intra-agency and inter-agency materials, but there are exceptions — meaning that disclosure is permitted — if the document consists of, among other things, 'statistical or factual tabulations or data' [and] Factual data . . . simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making."

Upon the Appellate Division's in camerainspection of the documents, it concluded that "most of the pages alleged to be intra-agency materials are exempt because they contain ideas or opinions exchanged between employees of the Attorney General's Office." However, continued the Appellate Division "the documents on pages 1 and 286 contain factual information without any opinion, rendering them nonexempt" while certain other documents are not exempt because they deal with the scheduling of meetings, rather than any deliberative process."

OAG also claimed that FOIL exempts intra-agency materials applies to inter-agency materials and communications shared between different government agencies to assist a decision maker in one agency in reaching a determination, the communications between the OAG and counsel for another State Agency. Pointing out that OAG and agency counsel were "not interacting with the Attorney General's Office in that capacity," nor was it assisting the government entity but rather OAG was more akin to a separate party to the litigation than an advisor to the government entity.

The court then ruled that considering these circumstances and the positions of the parties in these interactions, the inter-agency exemption does not apply and will not preclude disclosure of communications between these entities and thus the documents OAG alleged fell within this FOIL exemption are subject to disclosure.

With respect to OAG's arguments found on its assertion that numerous documents are exempt from disclosure because they represent attorney work product the court agreed that Public Officers Law §87(2)(a) exempts from FOIL disclosure any materials "specifically exempted from disclosure by state or federal statute" privileged communications between attorneys and their clients exchanged in the course of obtaining legal advice or services. However, observed the Appellate Division, not every word written by a lawyer "enjoys the absolute immunity of work product" and "the exemption should be limited to those materials which are uniquely the product of a lawyer's learning and professional skills, such as materials which reflect his or her legal research, analysis, conclusions, legal theory or strategy."

Nor may OAG claim the attorney work product privilege for work done by a private law firm on behalf of a non-government client which documents were then sent to the OAG as the confidentiality and the related privilege is waived by intentionally sending the documents to a third party.

The Appellate Division concluded that OAG had failed to meet its burden of establishing that the relevant pages — "drafts of legal documents and the letters and emails sent to and from counsel for any party to the various court proceedings" and Ms. Gartner is entitled to disclosure of those pages. In contrast, said the court, "the handwritten notes prepared by an Assistant Attorney General, and apparently never shared with anyone outside that office, are exempt as attorney work product."

* Education Law, §1127 - [Confidentiality of records] and §33.13, Mental Hygiene Law [Clinical records; confidentiality] are examples of such statutory prohibitions. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02381.htm

Retired State employee, after admitting to "double dipping," required to make total restitution in the amount of $156,918.20

Retired State employee, after admitting to "double dipping," required to make total restitution in the amount of $156,918.20

Source: Office of the State Comptroller

On April 3, 2018 New York State Comptroller Thomas P. DiNapoli  reported that Diane M. Cecero admitted she had been unlawfully “double-dipping" thereby receiving state retirement benefits to which she was not entitled while employed by a political subdivision of the State. The practice of drawing retirement benefits while remaining a public employee is informally known as “double-dipping,” and is prohibited by §150 of the Civil Service subject to a few exceptions, none of which exceptions applied to Ms. Cecero.

State Comptroller Thomas P. DiNapoli said that Ms. Cecero had unlawfully taken $85,000 in state pension benefits in addition to her six figure salary as an employee of a SUNY community college and that Ms. Cecero had agreed to pay back those benefits, with interest, as part of a pretrial diversion agreement.

Ms. Cecero had been a State employee from 1982 until 1996 and had been earning retirement credits as a participant in the New York State and Local Retirement System [NYSLRS]. In 1996 she joined the staff of the community college and, although she was then receiving retirement benefits from NYSLRS, she joined the State University Optional Retirement Program. [ORP].

However, Education Law §390.3, in pertinent part, provides that "No person receiving a benefit by reason of his or her retirement from any retirement or pension system of New York state or any political subdivision thereof shall be eligible to elect the optional retirement program."*

Ms. Cecero admitted that while employed by the community college [1] she had falsely filled out an Application for Service Retirement dated April 3, 2008, which resulted in NYSLRS paying her approximately $85,000 in retirement benefits to which she was not entitled during the years 2008 through 2014 and [2] she that while drawing retirement benefits from NYSLRS, she also participated in SUNY ORP. In addition, the community college had contributed more than $100,000 to the ORP for her benefit during this period.

The United States Attorney’s Office filed a wire fraud charge against Ms. Cecero. As part of the pretrial diversion agreement, it agreed that it would dismiss the charge if, within 18 months, Ms. Cecero made total restitution of $156,918.20: $116,918.20 to NYSLRS and an additional $40,000 to the community college. As part of the agreement, "Ms. Cecero did not admit to committing fraud or to any criminal wrongdoing."

This case was investigated by the Office of the State Comptroller, Division of Investigations, and was prosecuted by Assistant U.S. Attorneys Michael Barnett and Cyrus P.W. Rieck.

* ORP is not a public retirement system of the State and the public employer not liable for payment of benefits within the meaning of Article V, Section 7, of the State Constitution in that §396 of the Education Law provides that "Neither the state, nor state university, nor any electing employer or its local sponsor shall be a party to any contract purchased in whole or in part with contributions made under the optional retirement program established and administered pursuant to this article. No retirement, death, or other benefits shall be payable by the state, or by state university, or by any electing employer or its local sponsor under such optional retirement program. Such benefits shall be paid to electing employees or their beneficiaries by the designated insurer or insurers in accordance with the terms of their contracts."