A “Class of One” is not available to an individual in litigation involving a public employer

A “Class of One” is not available to an individual in litigation involving a public employer
Appel v Spiridon et al, 531 F.3d 138*

A faculty member employed by Western Connecticut State University [WCSU] was told that she would be required to submit to a medical examination involuntarily as a condition of her being continued in her employment with the University.

She sued, bringing a “class action of one,” contending that this requirement violated her constitutional rights under the Free Speech Clause of the First Amendment and under the Equal Protection Clause of the Fourteenth Amendment. A federal district court judge granted her petition based on her “class of one” claim of a violation of the Equal Protection Clause of the Fourteenth Amendment.

The Second Circuit vacated the injunction issued by the district court and remanded the matter to the district court for further proceedings, citing Engquist v. Oregon Department of Agriculture, 128 S. Ct. 2146. 

In Engquist, the Circuit Court explained, the Supreme Court held that such a theory did not apply, as here, in the public employment context. 

According to the decision, “It appears …that [the faculty member] is the only WCSU faculty member ordered to undergo an involuntary psychological examination in order to continue teaching and receiving pay and benefits at WCSU.”

The Circuit Court commented that the only basis for the lower court’s granting a preliminary injunction in favor of [the faculty member], and while it, itself, heretofore recognized such “class of one” liability in the public employment context, the Supreme Court’s holding that the Equal Protection Clause does not apply to a public employee asserting a violation of the Clause under a “class of one” theory in Engquist, it must “overrule any precedent of this Circuit to the extent that it conflicts with the holding in that decision.”

The case was remanded to the district court for further action.*

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA2LTU3MjMtY3Zfb3BuLnBkZg==/06-5723-cv_opn.pdf#xml=http://www.ca2.uscourts.gov:8080/isysquery/irld5a2/14/hilite

* See Appel v. Spiridon, 463 F. Supp. 2d 255, posted on the Internet at: http://ct.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20110818_0000471.DCT.htm/qx

Estoppel is not available against an administrative agency for the purpose of ratifying an administrative error

Estoppel is not available against an administrative agency for the purpose of ratifying an administrative error

Appeal of Jennifer Geiger, Decisions of the Commissioner of Education, Decision #16,379

This decision illustrates that an individual’s actions in reliance on information provided by a school official that subsequently proves to be incorrect will not excuse the individual's not complying with statutory or regulatory requirements.

Jennifer Geiger filed a petition as a candidate for election to the school board.

Education Law §2608(1) proves that candidates for office of member of the board of education must file a nominating petition “in the office of the clerk of the board of education between the hours of nine a.m. and five p.m., on or before the twentieth day preceding the day of the annual election.” §2608(1) also provides that “[t]he clerk shall refuse to accept petitions ... which are not timely.”

With respect to the election in question, the statutory deadline for filing nominating petitions was five p.m. on April 25, 2012.  The school district admittedly had advised individuals seeking election to the board that nominating petitions were due by four p.m. on April 27, 2012. 

Ms. Geiger submitted her petition after five p.m. April 25, 2012, but prior to the district’s published deadline of four p.m. on April 27, 2012. The district clerk, however, rejected Geiger's nominating petition as untimely because it was not filed by the statutory deadline of five p.m. on April 25, 2012.

The Commissioner of Education dismissed Ms. Geiger’s appeal, pointing out that “Because Education Law §2608(1) requires that nominating petitions be filed in the office of the district clerk on or before the twentieth day preceding the day of the annual election, petitions may not be filed after the statutory deadline.” Further, said the Commissioner, the board’s incorrect statement of the filing deadline does not authorize school district officials to depart from the statutory filing requirements….”

The Commissioner’s ruling is consistent with Renaud v City of New York, 269 A.D.2d 283. In Renaud the Appellate Division said that "estoppel is not available against an administrative agency for the purpose of ratifying administrative error."

The Geiger decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume52/d16379.html

Less than 30-days notice of termination of a probationary educator does not always result in the payment back salary

Less than 30-days notice of termination of a probationary educator does not always result in the payment back salary
Vetter v Board of Educ., Ravena- Coeymans-Selkirk Cent. School Dist., 53 AD3d 847

A probationary teacher of physical education and health education employed by Ravena-Coeymans-Selkirk Central School District. During the school year, several students made written complaints that the teacher had walked through the middle school girls' locker room while females were changing their clothes. Placed on administrative leave while an investigation was conducted, the teacher was told by the Superintendent that she planned to recommend his termination at the June 19, 2006 Board meeting .The decision notes that although the Board terminated the teacher’s employment on June 21, 2006 effective July 21, 2006, it did not notify him of that fact in writing until a letter dated July 19, 2006 was sent to him.

The teacher sued, seeking a name-clearing hearing pursuant to US Constitution 14th Amendment and 42 USC §1983, payment of 30 days salary in accordance with Education Law §3019-a and an award of counsel fees pursuant to 42 USC §1988. Without conceding that the probationer was entitled to a name-clearing hearing, the district agreed to provide him with one. Supreme Court awarded the teacher counsel fees related to his attempt to secure the name-clearing hearing, but denied his request for 30 days salary. Both parties appealed those portions of the Supreme Court’s ruling respectively viewed as adverse to them.

Regarding the teacher’s demand for salary payment, the Appellate Division said that a school district terminating a probationary teacher that fails to provide the 30-days notice required by Education Law §3019-a, must provide "one day's pay for each day the notice was late." Although it is uncontroverted that the teacher was only given two days notice of his termination - 28 days less than the required 30 days notice – the court agreed with the district that because “the time during which salary would be paid on account of the late notice fell during the summer vacation a time” when the teacher did not work and, therefore, would not otherwise have been paid, he was not entitled to receive any pay based upon the district's failure to provide the requisite notice.

The court noted that there is no evidence that the probationary teacher would have been entitled to any pay during the period in question if he had not been terminated. Thus, under these circumstances, the payment of salary to him would, in effect, provide a windfall to him and would not serve the purposes for which such payment was intended.

As to Supreme Court’s awarding the teacher attorney fees, the Appellate Division said such fees were erroneously awarded to him. The United States Supreme Court has clearly held that a voluntary resolution of a matter "lacks the necessary judicial imprimatur" to warrant "an award of attorney's fees." In this instance the district decided to give the probationer the “name-clearing hearing” he demanded. As the hearing was the result of the voluntary actions of school district, which was not enforced by a consent decree or judgment of Supreme Court, the Appellate Division ruled that the award of counsel fees was improper.

NYPPL Comments: A name clearing hearing, however, serves only one purpose - to clear the accused individual's good name and reputation. It does not result in the individual obtaining any right to reemployment. This means that having been provided with a hearing and having cleared his name is, at best, all the relief an individual can expect. Prevailing at a name-clearing hearing does not require the individual to be reemployed by his or her former employer.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/less-than-30-days-notice-of-termination.html

Failure to produce a valid license required to perform the duties of the position bars individual’s employment

Failure to produce a valid license required to perform the duties of the position bars individual’s employment

NYC Department of Sanitation v Wright, OATH Index #1601/12

OATH Administrative Law Judge John B. Spooner found that the worker’s failure to possess a valid driver’s license barred him from continued employment as a sanitation worker. The Appointing Authority adopted Judge Spooner recommendation that the individual be terminated from his position.

The decision indicates that the worker “violated department rules by failing to have a valid driver’s license and not having the license reinstated after being notified of the need to do so.”

Where a valid license, permit or certification is required to lawfully perform the duties of the position, courts have ruled that an individual may be suspended without pay if he or she becomes unable to lawfully perform the duties of the position because of a lack of, or the loss of, the required license, certification or similar permit. “Summarily” in this context means without preferring disciplinary charges and providing a due process hearing once the individual has been given a reasonable opportunity to produce the required credential and has failed to do so.

Common examples of situations leading to a valid summary dismissal include the revocation of a truck driver’s permit to operate a motor vehicle on public roads, the loss of an attorney’s license to practice law and the expiration of a temporary permit to teach. All that appears to be necessary in such cases is for the appointing authority to make some reasonable inquiry to determine if the employee may lawfully perform the duties of the position.

Essentially courts have viewed employees who lack such a required credential as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. As the Court of Appeals indicated in New York State Off. of Children & Family Servs. v Lanterman, 14 NY3d 275, termination from the position because the individual does not possess a valid required license or certification is not a disciplinary termination.

Other examples include Meliti v Nyquist, 53 AD2d 951, affirmed 41 NY2d 183 (immediate suspension of teachers was lawful because their teaching licenses had expired) and O’Keefe v Niagara Mohawk Power Corp, 714 FSupp 622, (traveling company demonstrator was not discriminated against when a private sector employer terminated the individual after his driver’s license was suspended).

In contrast, in Martin ex rel Lekkas, 86 AD2d 712, the issue focused on the employer's requiring Lekkas, an Assistant Clinical Physician, to have a valid license to practice medicine while serving as an administrator, a position that did not involve Lekkas’ practicing medicine. The appointing authority had terminated Lekkas from his position because he did not hold a valid New York State license to practice medicine. The Appellate Division ruled that only in the event the duties of the position require the incumbent to be licensed may the lack of such a license serve as grounds for termination.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/12_Cases/12-1601.pdf

Employer’s duty to provide a safe place to work does not extend to hazards inherent in the duties of the position

Employer’s duty to provide a safe place to work does not extend to hazards inherent in the duties of the position

Consalvo v City of New York, 53 AD3d 521

A New York City Sanitation Department employee was instructed to remove a dead cat from a public roadway. While removing the animal for the roadway the employee was struck by a hit-and-run driver, and thereafter died. Diane Consalvo sued the City, alleging wrongful death claming the City was negligent. The Supreme Court denied the City’s motion for summary judgment dismissing the action. On appeal, the Appellate Division, Second Department reversed the lower court’s ruling.

The Appellate Division said that “The duty of an employer to provide its employees with a safe place to work does not extend to hazards which are part of or inherent in the very work which the [employee] is to perform [nor] to secure the safety of [an employee] against a condition, or even defects, risks or dangers that may be readily observed by the reasonable use of the senses, having in view the age, intelligence and experience of the [employee]”

In this instance, said the court, the City demonstrated it was entitled to judgment as a law by showing that the employee was an experienced sanitation worker, that it was part of his work to pick up dead animals from the roadway, and that the risks inherent therein, including the risk of being struck by a car, were readily observable.

Consalvo relied upon union rules, which the court said “were promulgated not as a safety measure, but to promote efficiency,” and upon the alleged "custom" of the Sanitation Department to dispatch two workers to collect garbage. However, said the Appellate Division, such evidence did not raise a “triable issue of fact” sufficient to defeat the City's entitlement to judgment as a law.

In another “safe workplace” case, Scharff v Sachem Cent. School Dist. at Holbrook, 53 AD3d 538, the court said that although Labor Law §240(1) affords special protection to workers who sustain personal injuries as a result of elevation-related risks such as falling from a height or being struck by a falling object that was improperly hoisted, the provision does not "encompass any and all perils that may be connected in some tangential way with the effects of gravity."

The injured worker testified that he slipped and fell onto the surface of a roof of a school while working. The school district, said the Appellate Division, met its burden of establishing its prima facie entitlement to judgment as a law by showing that the employee’s injury was not incurred as a result of an elevation-related risk. The Appellate Division also commented that “Supreme Court properly found that the [worker’s] affidavit, in which he alleged that he also slid down the roof, contradicted prior deposition testimony and was an attempt to create a feigned issue of fact.

The Consalvo decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/employers-duty-to-provide-safe-place-to.html

The Scharff decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/worker-injured-while-working-above.html

 

The Doctrine of Collateral Estoppel held to bar applicant’s claim for unemployment insurance benefits

The Doctrine of Collateral Estoppel held to bar applicant’s claim for unemployment insurance benefits

Matter of Redd (Commissioner of Labor), 2012 NY Slip Op 05886, Appellate Division, Third Department

Initially suspended without pay from her employment for alleged misconduct, an arbitrator ultimately found the employee guilty of misconduct and terminated from her position.

The individual then filed for unemployment insurance benefits. The Unemployment Insurance Appeal Board denied her claim for unemployment insurance benefits on the basis that she lost her employment through misconduct.

The Appellate Division affirmed the Board’s decision, holding that as “there was a full and fair opportunity to litigate the issue in the prior proceeding, collateral estoppel* effect must be given to the arbitrator's factual findings regarding claimant's misconduct.”

Further, said the court, upon review it concluded that "the Board properly took into account the arbitrator's factual findings regarding the events which led to claimant's dismissal and then went on to reach its own conclusion as to whether claimant's behavior constituted [disqualifying] misconduct under the Labor Law."

As the record before court provided substantial evidence to support the Board's conclusion that claimant engaged in disqualifying misconduct, the Appellate Division said that it found no basis to reverse the Board’s ruling.

* The Doctrine of Collateral Estoppel holds that the determination of the facts litigated between the parties to an earlier proceeding are binding and conclusive on those parties in any subsequent litigation involving the same issue[s] and parties.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05886.htm

Mode of payroll payment should not affect the employer’s being reimbursed for the salary paid an educator while he or she was receiving workers’ compensation benefits

Mode of payroll payment should not affect the employer’s being reimbursed for the salary paid an educator while he or she was receiving workers’ compensation benefits
Pawlewski v Buffalo Bd. of Educ., 53 AD3d 834

A teacher employed by the Buffalo Board of Education, was injured when she fell at work. She was still out of work at the time of the relevant workers' compensation hearings. The controlling provisions of the collective bargaining agreement between the Board and the educator’s union provide that the teacher was continue to receive her regular wages and benefits for up to two years and "the salary allowance paid [to her] under worker[s'] compensation [would] be assigned to the [employer]."

Buffalo paid the teacher her full salary during this period but when it sought reimbursement, the Workers' Compensation Board modified its hearing officer’s determination, finding that Buffalo was not entitled to reimbursement for payments it made to the teacher for the “summer recess” period during which she was “on disability leave.”

Buffalo and its workers' compensation carrier appealed.

The Appellate Division noted that Workers' Compensation Law §25 (4) (a) “provides, in pertinent part, that if an employer ‘has made payments to an employee in like manner as wages during any period of disability, [the employer] shall be entitled to be reimbursed out of an unpaid installment or installments of compensation due.’”

In this instance the teacher had received her full annual wages, which had been paid in the same manner as she had received them before her injury in accordance with the contractual terms providing that a teacher's total annual salary is paid over a period of 10 months. Under the circumstances, said the court, the Board erred in reversing that part of the ALJ’s determination that would have reimbursed Buffalo for the summer recess period.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/mode-of-payroll-payment-should-not.html

Waiving further administrative or judicial consideration of the resulting decision as a conditions of electing a particular administrative review procedure binding

Waiving further administrative or judicial consideration of the resulting decision as a conditions of electing a particular administrative review procedure binding

Colon v New York City Employees' Retirement Sys., 2012 NY Slip Op 05819, Appellate Division, Second Department

When the application for a performance-of-duty retirement disability pension was denied by the Board of Trustees of the New York City Employees' Retirement System, the applicant was advised that there were three different options to seek review of the determination available: (1) to commence a CPLR article 78 proceeding within four months of receipt of the denial letter; (2) to request review of her case by a Special Medical Committee consisting of three independent physicians; or (3) to refile for a disability pension.

The applicant elected to have her case reviewed by the Special Medical Committee and, as a condition of obtaining such a review, waived any right to further administrative or judicial review of the Board of Trustees' determination.

The Special Medical Review Committee concluded that while the applicant was, indeed, disabled, the disability was not the result of a job-related accident.

Board of Trustees adopted the Special Medical Review Committee's recommendation, again denying the application, and the applicant filed an Article 78 petition seeking to overturn the Board’s determination.

Denying the appeal, the Appellate Division said that by “electing to have her case reviewed by the Special Medical Review Committee and executing a waiver of her right to further administrative or judicial review, [the applicant] agreed to accept the Special Medical Review Committee's determination as binding and conclusive.”

Noting that the applicant did not allege that the waiver was the result of coercion or duress and its terms were “clear and unambiguous,” the court explained that "[W]hen a waiver is freely and knowingly made and not the product of coercion or duress, a party can waive his rights to seek review of an administrative proceeding and such determination is binding."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05819.htm

Limitations on the use of sick leave by police officers

Limitations on the use of sick leave by police officers
Economico v. Village of Pelham, 50 NY2d 120

Is it lawful to terminate a police officer on sick leave at full pay if he or she is unable to perform the duties of the position due to a non-work related injury or disease?

In contrast to the discontinuation of a police officer from the payroll while he or she is eligible for benefits pursuant to §207-c of the General Municipal Law,* a police officer placed on a leave of absence pursuant to §72 of the Civil Service Law because of an injury or disease that is not work-related may be terminated from his or her position pursuant to §73 of the Civil Service Law at the discretion of the appointing authority.

Notwithstanding a Taylor Law contract provision providing for “unlimited sick leave with pay” for police officers unable to work due to non-service related disabilities, the New York State Court of Appeals has held that a police officer so disabled could be terminated pursuant to §73 of the Civil Service Law. The Court distinguished Economico from the Yonkers teacher case (Board of Educ. v Yonkers Fedn. of Teachers, 40 NY2d 268) where the Court held there was no prohibition against the establishment of a limited job security clause in a collective bargaining agreement.

The State’s interest in maintaining the efficiency and continuity of its civil service was held to be a substantial one and §73 truncates the employee’s right to be continued in his or her position without limitation, even in the face of a contract provision to the contrary, at the discretion by the appointing authority. It should be noted, however, that a police officer eligible for General Municipal Law §207-c benefits would be subject to the provisions of §71 of the Civil Service Law while a police officer absent due to an injury or disease that was not job-related is typically granted leave, with or without pay, pursuant to §72 of the Civil Service Law.

In Dolan v Whalen, 49 NY2d 991, the Court of Appeals held that a hearing in connection with termination pursuant to §73 is required if there is “some factual dispute impacting upon the employer’s right to discharge” the employee.**

Although §73 speaks of “termination,” such a termination is not a “dismissal” in a pejorative sense as the individual has certain rights to reinstatement to his or her former position, or a similar position, upon his or her recovery from the underlying disability or, if there is no suitable vacancy available at that time, the placement of his or her name on a preferred list. The same it true with respect to an individual who is terminated from his or her position while on leave pursuant to §71 of the Civil Service Law.

The police officer injured in the line of duty is entitled to unlimited leave with pay and other benefits pursuant to General Municipal Law, Sections 207-c(1), which leave is at full salary until the disability ceases or the individual retires or is retired, as provided by law. 

Further, the police officer cannot be required to use any leave credits available to him (Op. St. Comp. 79-356). The Comptroller’s Opinion noted that “a municipality and its policemen may not agree through collective bargaining that a policeman injured in the performance of his duties apply accumulated sick leave or vacation credits to receive the full amount of his salary during the period of his [or her] disability.”

* An appointing authority may not summarily terminate an individual’s §207-c disability benefits [Kempkes v Downey, 53 AD3d 547].

** See Sheeran v New York State Dept. of Transp., 18 NY3d 61, a case addressing the rights of an individual who has voluntarily absented him or herself from work due to a non-work related injury of disease and seeks to return to his or her position.

=======================

General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/for additional information about this electronic reference manual.

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Reports and information published by New York State's Comptroller Thomas P. DiNapoli

Reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of July 30 - August 5, 2012 [Click on the caption to access the full report]

DiNapoli: Special Education Contractor Bilked Taxpayers Out of $2.6 Million

IncludED Educational Services, a Cedarhurst–based provider of special education services, inappropriately charged New York City’s Department of Education and others more than $2.6 million over a two–year period, including more than $850,000 in salaries paid to the sons and other relatives of its executive director, according to an auditreleased Wednesday by State Comptroller Thomas P. DiNapoli. The findings have been referred to the Manhattan District Attorney’s Office.

DiNapoli: Auditors Block $1.4 Million in Improper Unemployment Insurance Payments

State Comptroller Thomas P. DiNapoli prevented $1.4 million in inappropriate unemployment insurance payments or payment requests by the Department of Labor, including to recipients that were employed, deceased or unauthorized to work in the United States, according to a reportreleased Tuesday. The Comptroller’s Office also found nearly $1 million in improper payments, which had already been paid.

DiNapoli: Local Governments Facing New Fiscal Reality

The Office of the State Comptroller has released a reportentitled New Fiscal Realities Challenge Local Governments, which is now available on our website. This summarizes 60 audit reports released in fiscal year 2011–12 that identified local governments with inaccurate budgeting practices. The report also summarizes 23 budget reviews that OSC completed during the same time period. The report outlines the Comptroller’s commitment to ensuring that local officials develop budgets that provide transparency and accountability to taxpayers. The report can be accessed on the OSC website at http://www.osc.state.ny.us/localgov/pubs/fiscalrealities2012.pdf.

DiNapoli: MTA Gave Apple Inside Advantage For Grand Central Terminal Lease

The Metropolitan Transportation Authority (MTA) slanted a supposedly competitive process to fill prime retail space in Grand Central Terminal in Apple’s favor, according to an auditissued Monday by New York State Comptroller Thomas P. DiNapoli. Auditors and investigators found that the MTA worked exclusively with Apple behind the scenes on a lease for more than a year before issuing a request for proposals that resulted in only one response — from Apple.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Tuesday announced his office completed the following audits: the Town of German; the Town of Hurley; the Town of Ridgeway; Washington County; and, the Westfield Volunteer Fire Department.

An appeal to the Commissioner of Education must comply with all precedural requirements set out in the relevant Regulations of the Commissioner

An appeal to the Commissioner of Education must comply with all precedural requirements set out in the relevant Regulations of the Commissioner

Appeal of R.F. and D.F., on behalf of their son R.F., from action of the Board of Education of the East Meadow Union Free School District, Decisions of the Commissioner of Education, Decision #16,369

In this pro se appeal, R.F. and D.F. [the parents] appealed the suspension of their child, R.F., and asked the Commissioner to remove the Superintendent and the Board President from their respective positions.

The Commissioner denied the parents’ appeal on the merits but addressed a number of procedural matters that should be noted.

The School District contended that the appeal should be dismissed because the petition filed by the parents:

1. Failed to state a claim upon which relief may be granted;

2. Failed to join necessary parties; and

3. Was not verified. 

The School District also objected to parents’ response to its memorandum of law. On this point the Commissioner said: “Although labeled ‘Reply,’ it is unclear whether [the parents] intend this document to be a reply or reply memorandum of law …to the extent this ‘Reply’ was intended as a reply, it is untimely, because the parents failed to serve it within 10 days after service of the school district’s answer in accordance with §275.14(a) of the Commissioner’s regulations.”

 

If, however, the “Reply” was intended as a reply memorandum of law, the Commissioner pointed out that a reply memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings and may be accepted only with the prior approval of the Commissioner, citing 8 NYCRR §276.4.  Although the Commissioner said that the parents had “apparently contacted my Office of Counsel prior to their submission, it fails to comply with §276.4 of the Commissioner’s regulations pertaining to memoranda of law, or with §276.5 pertaining to additional affidavits, exhibits and other supporting papers.”

 

Accordingly, said the Commissioner, “I have not considered it.”

The School District also contended that the appeal must be dismissed because the petition is not verified.  8 NYCRR §275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  In the event a petition is not properly verified, the appeal must be dismissed.

The Commissioner, noting that the parents’ petition that was filed with his Office of Counsel included the required verification, ruled that dismissal on that basis is not warranted.

Turning to that portion of the parents’ appeal that challenged their child’s suspension from school and seeking to expunge any report of the incident from his school record, the Commissioner said that he 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. As the child had already “served the suspensions and returned to school,” that aspect of the appeal, said the Commissioner, was moot.

However, said the Commissioner, to the extent that parents seek expungement of the incident from their child’s school record, that aspect of the appeal survived.

As to the parents’ seeking the removal of the Superintendent and the Board President, the Commissioner said that their application must be denied for failure to join necessary parties, i.e., a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.

“Joinder” requires that an individual be clearly named as a respondent in the caption 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.

Turning to the requirement that the appropriate parties must be served with the necessary papers, the Commissioner noted that the parents had “served only the district by personally serving the Superintendent’s secretary and … a member of the board.” As neither the Superintendent nor the Board President was personally served with a copy of the notice of petition and petition, the Commissioner ruled that the parents’ “removal application must be denied.”

Further, said the Commissioner, there was another basis for denying parents’ application for removal: the notice of petition was defective.  8 NYCRR §277.1[b] requires that the notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office. The parents, however, had failed to give such notice and, instead, used the notice prescribed under 8 NYCRR §275.11(a) for appeals brought pursuant to Education Law §310. 

A notice of petition that fails to include the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondents.

Finally, the Commissioner noted that “A petition to the Commissioner is required to set forth the allegations in numbered paragraphs, be typewritten and double spaced, citing 8 NYCRR §275.3[c].  Although a liberal interpretation of these rules is appropriate where petitioners are pro se and there is no prejudice to respondent, the Commissioner noted that the parents’ lack of adherence to the regulations “has obfuscated their contentions.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16369.html

Employee’s termination based on the findings and recommendation of the disciplinary hearing officer

Employee’s termination based on the findings and recommendation of the disciplinary hearing officer

Snead v Village of Spring Valley, 2012 NY Slip Op 05749, Appellate Division, Second Department

Supreme Court dismissed a petition filed pursuant to Article 78 of the Civil Practice Law and Rules challenging the determination of the Village of Spring Valley Justice Court dismissing the individual from her position, noting that the Justice Court had adopted the findings and recommendation of the disciplinary hearing officer.

The Appellate Division affirmed the Justice Court’s action, noting that the alleged misconduct, falsification of public records, and insubordination, was supported by “substantial evidence adduced at the administrative hearing.”

In addition, the court held that “in light of the charges and the [employee’s] duties, the penalty imposed was not so disproportionate to the offenses as to be "shocking to one's sense of fairness," thus constituting an abuse of discretion as a matter of law, citing Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05749.htm