Treatment of Marriages of Same-Sex Couples for Retirement Plan Purposes

Treatment of Marriages of Same-Sex Couples for Retirement Plan Purposes

The IRS has issued Notice 2014-19, which provides guidance on how qualified retirement plans should treat the marriages of same-sex couples following the Supreme Court’s decision in United States v. Windsor. The Windsor decision invalidated Section 3 of the 1996 Defense of Marriage Act (DOMA) that barred married same-sex couples from being treated as married under federal law.

The notice:

• gives examples of Code requirements under which the marital status of the participants is relevant to the payment of benefits,
• provides guidance on how to satisfy those requirements in light of Windsor and Revenue Ruling 2013-17, and
• describes when retirement plans must be amended to comply with Windsor, Revenue Ruling 2013-17, and Notice 2014-19

Recognition of marriages of same-sex couples for tax purposes

Following the Windsor decision, the IRS issued Revenue Ruling 2013-17, which holds that married same-sex couples are now treated as married for all federal tax purposes where marriage is a factor, if the couple is lawfully married under the laws of one of the 50 states, the District of Columbia, a U.S. territory or a foreign jurisdiction. Notice 2014-19 gives additional guidance on how qualified retirement plans should treat the marriages of same-sex couples.

Plan amendments required with respect to plan provisions inconsistent with Windsor

• If its terms are inconsistent with Windsor or Revenue Ruling 2013-17, a retirement plan must be amended to comply with Windsor and Revenue Ruling 2013-17. For example, a plan must be amended if it defines “spouse” by reference to section 3 of DOMA, or only as a person of the opposite sex.
• Not all plans need to be amended in order to be in compliance. An amendment generally is not required if a plan’s terms are not inconsistent with Windsor or with Revenue Ruling 2013-17.
• Required amendments must be adopted by the later of December 31, 2014, or the applicable date under the IRS’ general amendment guidance for qualified retirement plans, Revenue Procedure 2007-44.

Optional amendments

• Plan sponsors may also, but are not required to, reflect the outcome of Windsor for periods prior to the date Windsor was decided.
• In such a case, a plan amendment is required.
• Such optional amendment must be adopted by the later of December 31, 2014, or the applicable date under Revenue Procedure 2007-44.

FAQs for more information
See the FAQs on the treatment of same-sex marriages for additional guidance, including:

• beneficiary designations in profit-sharing plans after Windsor,
• amendments that reflect the outcome of Windsor for periods before the decision was issued, and
• application of the outcome of Windsor to 403(b) plans.

Additional resources

• IRS News - For Same-Sex Couples and Certain Domestic Partners
• Revenue Ruling 2013-17 – treatment of same-sex marriage for federal tax purposes
• FAQs on treatment of same-sex marriage for retirement plans

New York State's Human Rights Law and the New York City's Human Rights Law are not identical

New York State's Human Rights Law and the New York City's Human Rights Law are not identical

2014 NY Slip Op 02098, Court of Appeals

Initially employed by the NYC Health and Hospitals Corporation [HHC] in 1979, Plaintiff was diagnosed with an occupational lung disease. In 2007, HHC terminated Plaintiff. About a year later Plaintiff filed a complaint pursuant to State Human Rights Law (SHRL) and the City Human Rights Law (CHRL) alleging HHC HC had unlawfully discriminated on the basis of his disability.

Supreme Court granted HHC motion seeking summary judgment, holding that Plaintiff could not, even with a reasonable accommodation, perform the essential functions of his job. The Appellate Division affirmed.

The Court of Appeals ruled that HHC was not entitled to summary judgment with respect to Plaintiff’s SHRL and CHRL claims, explaining that summary judgment in favor of an employer under SHRL or CHRL where the employer has failed to demonstrate that it responded to a disabled employee’s request for a particular accommodation by engaging in a good faith interactive process regarding the feasibility of that accommodation.

The Court of Appeals set out the following guidelines in its decision:

1. An employer's failure to consider the reasonableness of a proposed accommodation for a generally qualified employee's disability via a good faith interactive process precludes the employer from obtaining summary judgment in the action.

2. The State Human Rights Law and the City Human Rights Law set forth distinct legal standards for establishing the existence of a covered disability that can be reasonably accommodated.

3. These statutes generally preclude summary judgment in favor of an employer where the employer has failed to demonstrate that it responded to a disabled employee's request for a particular accommodation by engaging in a good faith interactive process regarding the feasibility of that accommodation.

4. An employee's complaint states a prima facie case of discrimination under both the State HRL and City HRL if the employee suffers from a statutorily defined disability and the disability caused the behavior for which the employee was terminated.

Turning from the summary judgment burden to the substance of the statutes at issue, the SHRL forbids employment discrimination on the basis of an employee's disability, and the CHRL provides even greater protection against disability-based discrimination.

As to SHRL:

1. Under the State HRL, if an employee has a physical impairment that prevents the employee from performing the core duties of his or her job even with a reasonable accommodation, the employee does not have a disability covered by the statute, and consequently, the employer is free to take adverse employment action against the employee based on that impairment.

2. If a reasonable accommodation would permit the employee to perform the essential functions of the employee's position, the employee has a "disability" within the meaning of the State statute, and the employer cannot disadvantage the employee based on that disability.

3. A "reasonable accommodation" for an employee's impairment is one which "permit[s] an employee with a disability to perform in a reasonable manner activities involved in the job" and does not impose an "undue hardship" on the employer's business.

4. A proper State HRL claim must be supported by substantiated allegations that, "'upon the provision of reasonable accommodations, [the employee] could perform the essential functions of [his or] her job,'" and the employee bears the burden of proof on this issue at trial.

5. The SHRL's definitions of "reasonable accommodation" and "disability" requires that, where the employee seeks a specific accommodation for his or her disability, the employer must give individualized consideration to that request and may not arbitrarily reject the employee's proposal without further inquiry.

6. At a trial on a State HRL claim, the plaintiff employee bears the burden of proving the existence of a reasonable accommodation that would have enabled the employee to perform the essential functions of his or her position

As to the CHRL:

1. The CHRL's definition of 'disability' does not include 'reasonable accommodation' or the ability to perform a job in a reasonable manner," but rather "defines 'disability' solely in terms of impairments."

2. The CHRL forbids employment discrimination against physically and mentally impaired individuals, and employers may raise the inability of disabled employees to "with reasonable accommodation, satisfy the essential requisites of the[ir] job[s]" only as an affirmative defense to a CHRL claim.

3. The CHRL places the burden on the employer to show the unavailability of any safe and reasonable accommodation and to show that any proposed accommodation would place an undue hardship on its business.

4. At trial on a CHRL claim, the employer does not automatically fail to establish the affirmative defense premised on the lack of any reasonable accommodation solely because it did not participate in an interactive process, though that failure poses a formidable obstacle to the employer's attempt to prove that no reasonable accommodation existed for the employee's disability

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02098.htm
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Employee discipline guidelines for public employers

Employee discipline guidelines for public employers

Source: posted by the Editorial Team of the NYMuniBlog

   

Harris Beach partner Edward A. Trevvett, Esq., recently presented a talk focusing on Employee Discipline – Process, Procedure & Off-Duty Misconduct to municipal officials at a New York Conference of Mayors (NYCOM) Personnel School held in Pittsford, New York.

The presentation discussed “just cause” standards, sound personnel practices, the importance of documentation, “notice documents,” performance appraisals, progressive disciplinary policy, investigations and off-duty misconduct, as well as due process and procedural requirements for public employers.

To view the material presented by Mr. Trevvett at the Personnel School, click on the link set out below:

View this document on Scribd

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Available from the Public Employment Law Press

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://thedisciplinebook.blogspot.com/ 

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

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Complying with probationary evaluation procedures set out in the collective bargaining agreement

Complying with probationary evaluation procedures set out in the collective bargaining agreement
2014 NY Slip Op 01236, Appellate Division, Third Department

The relevant collective bargaining agreement (CBA) containing a broad arbitration clause and a grievance procedure providing that any unresolved grievance is subject to arbitration.

After a probationer received a series of negative evaluations, probationer's administrators recommended that the probationer be denied tenure. The union filed a grievance on the probationer's behalf challenging, among other things, whether the employer had complied with the probationary evaluation procedures provided for in the CBA.

The employer denied the grievance and terminated the probationer's employment. The union filed a demand for arbitration. In response, the employer initiated an action in Supreme Court seeking a stay of arbitration pursuant to CPLR §7503(b).

Supreme Court granted the employer's petition, concluding that the subject matter of the grievance was not arbitrable because it actually challenged the employer’s tenure decision — over which the parties agree that employer had sole discretion — and not the alleged failure to comply with the agreed-upon evaluation procedures.*

This, said the Appellate Division, was incorrect and the employer’s petition should have been denied.

The Appellate Division explained that the court's role in determining applications to stay arbitration is limited and, as relevant in this action, requires a determination of whether the parties have agreed to arbitrate the dispute at issue.

As the union asserted a violation of the evaluation procedures agreed to by the parties and included as part of the CBA, the Appellate Division concluded that there was a rational relationship between the subject of the grievance and the CBA. Thus, said the court, “The question of whether the employer violated these procedures "goes to the merits of the grievance, not to its arbitrability."  

In the words of the Appellate Division, "[T]he fact that the substantive clauses of the contract might not support the grievances . . . is irrelevant on the threshold question of arbitrability. It is for the arbitrator, and not the courts, to resolve any uncertainty concerning the substantive rights and obligations of the parties."

* In Cohoes City School District v Cohoes Teachers Association, 40 NY2d 774, the Court of Appeals ruled that "contractual provisions between a teachers association and a school district can provide procedural safeguards concerning the tenure decision without offending public policy [see, also, Matter of Clarkstown Central School District, 163 AD2d 670].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01236.htm

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An individual’s inconsistent statements to different parties can be deemed a willful false statement or misrepresentation

An individual’s inconsistent statements to different parties can be deemed a willful false statement or misrepresentation
2014 NY Slip Op 01805, Appellate Division, Third Department

A civilian employee, [Claimant] working at a state correctional facility was dismissed from his employment after he was arrested for attempting to smuggle contraband, hidden in his lunch pail, into the facility.

The Unemployment Insurance Appeal Board found, among other things, Claimant “engaged in disqualifying misconduct and made willful false statements to obtain benefits” and reduced his right to receive future benefits and assessed a recoverable overpayment of benefits.

The Claimant appealed the Board’s determination.

The Appellate Division affirmed the Board’s decision, explaining that "A 'willful' false statement or misrepresentation is one which was made knowingly, intentionally or deliberately, and criminal intent . . . need not be shown."

As to whether a willful false statement was made is a question of fact for the Board to resolve. The record showed that when Claimant was arrested, he told the police that he knew that items found in his lunch pail were considered contraband and he was aware of the employer's policy prohibited bringing contraband into the facility.

In contrast, Claimant told the Department of Labor's representative when questioned about his loss of employment that he was unaware of any wrongdoing on his part and had done nothing wrong.

Such inconsistent statements, said the Appellate Division, provide substantial evidence to support the Board's finding that claimant made willful false statements in an effort to obtain unemployment insurance benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01805.htm
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Providing health insurance benefits to employee upon retirement

Providing health insurance benefits to employee upon retirement

2014 NY Slip Op 01496, Appellate Division, Third Department

A series of collective bargaining agreement (CBA) in effect from July 1996 to June 2002 provided that employees who retire with fifteen or more years of service to the District shall be entitled to District provided individual or family health insurance coverage, as applicable, at no cost to the retiree. The two successive CBAs contained that same provision with regard to retiree health insurance coverage, as well as a separate provision expressly addressing Medicare reimbursement that stated, "as of July 1, 2003, those who retire from Northeastern Clinton [Central School District] with 25 years of consecutive service in the [D]istrict shall be entitled to Medicare reimbursement for themselves and their spouse[s], while the retired employee is still living."

In 2010, after plaintiffs had retired, a successor CBA was executed between the District and the relevant collective bargaining unit which, among other things, provided that employees retiring on or after July 1, 2010 shall not be provided with Medicare reimbursement upon retirement. Shortly thereafter, defendant Board of Education, Northeastern Clinton Central School District adopted a resolution which, among other things, eliminated Medicare reimbursements for District retirees who were not already in receipt of such reimbursements as of July 1, 2010.

After receiving notice of the resolution, plaintiffs sued for breach of contract and for a declaratory judgment, claiming that they are entitled to Medicare Part B reimbursement under the CBAs in effect at the time of the employees' retirement.

One of the arguments advanced by the school district contended that, regardless of any contractual right to Medicare Part B reimbursements, the Insurance Moratorium Law (Chapter 594, Laws of 2009, Part B, §14) authorizes the school District to modify the retirees' coverage because a corresponding modification was made for active employees in the 2010-2014 CBA. 

The Appellate Division noted that this contention was rejected by the Court of Appeals in Kolbe v Tibbets, 22 NY3d 344.

In Kolbe the Court of Appeals said that “This case calls on us to decide whether certain collective bargaining agreements* conferred upon plaintiff-retirees a vested right to the same health insurance coverage they had when they retired and, if so, whether unilateral modifications to that coverage are nonetheless permissible under either the contract terms or the New York Insurance Moratorium Law.”

The court held that the contracts establish a vested right to a continuation of the same health coverage under which plaintiffs retired, until they reach age 70, and that the Insurance Moratorium Law does not provide a basis for abrogating retirees' vested contractual rights.

In the words of the Court of Appeals, “we reject the District's argument that, regardless of plaintiffs' contractual right to the "same coverage," the 2009 Insurance Moratorium Law allows the District to modify plaintiffs' coverage because a corresponding modification was made in the 2007-2012 CBA for active employees.

“The statute provides, in relevant part, that, "From on and after June 30, 1994 a school district board of cooperative educational services, vocational education and extension board or a school district . . . shall be prohibited from diminishing the health insurance benefits provided to retirees and their dependents or the contributions such board or district makes for such health insurance coverage below the level of such benefits or contributions made on behalf of such retirees and their dependents by such district or board unless a corresponding diminution of benefits or contributions is effected [sic] from the present level during this period by such district or board from the corresponding group of active employees for such retirees" (L 1994, ch 729, as extended by L 2009, ch 30).

“The District's interpretation of the statute relies on the erroneous conclusion that the Legislature's silence regarding contracted-for health coverage should be read as an intention to abrogate contractual rights. However, the Insurance Moratorium Law's primary purpose was to prevent school districts from eliminating or reducing retiree health insurance benefits that were voluntarily conferred as a matter of school district policy, not rights negotiated in the collective bargaining context (see New York State Assembly Memorandum in Support of L 1996, ch 83). The 1994 final report of the Temporary Task Force on Health Insurance for Retired Educational Employees, which originally recommended the legislation, proposed amending the then-temporary law to apply to contractually vested rights. Specifically, the Task Force proposed that the Legislature "mak[e] it clear that any negotiated health insurance benefits for present employees upon retirement can be affected in the same manner as any retiree's health benefits can be under the present temporary legislation; i.e., once retired a retiree's health insurance benefits may be diminished in a similar manner as negotiated for active employees without violation of the negotiated provision covering future retirees" (Final Report of the Temporary Task Force on Health Insurance for Retired Educational Employees, December 1, 1994, at 6 [emphasis supplied]). Significantly, the Legislature never adopted this proposal, or any of the Task Force's proposed amendments to the temporary statute then in effect, but instead enacted it into permanent law unchanged.

“In light of this legislative history, as well as the statute's plain language, Supreme Court correctly concluded that the statute only prescribed "a bottom floor, beneath which school districts and certain boards were forbidden to go in diminishing benefits. It was not meant to eviscerate contractual obligations and decades of contract law."

* The Court of Appeals commented that “despite the fact that the successor CBA was retroactively effective to 2007, it is undisputed that even those plaintiffs who retired in 2007 and 2008 effectively retired under the 2003-2007 CBA, since the subsequent CBA was not executed until 2010. This stipulation accords with the reality that these plaintiffs were not represented by the CSEA in the portion of the negotiations that took place after their retirement, and that the bargains struck in the 2007-2012 agreement would thus not be enforceable by them.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01496.htm
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Posted on the Blogs:

Posted on the Blogs:

The Digital Journal has posted an article prepared by White, Ricotta & Marks, P.C. [www.queensemploymentattorney.com] highlighting some of the recent changes to the disciplinary hearing procedures set out in Education Law §3020-a. The article is posted on the Internet at: http://www.digitaljournal.com/pr/1811847#ixzz2xJbx7vyV

James Beyer, Esq., writing in NYMUNIBLOB, has posted an article entitled Will Sex in School Decision Impact Teacher Discipline Process? in which he addresses a number of implications flowing from these ruling. Mr. Beyer's article is posted on the Internet at: http://nymuniblog.com/will-sex-in-school-decision-impact-teacher-discipline-process/

FindLaw has posted an article about a California case challenging teacher job protection laws in which it was alleged that "incompetent teachers in California are holding back poor and minority children." The decision could affect the way public school teachers are currently hired and terminated in the most populous state in the United States. The item is posted on the Internet at:

http://legalnews.findlaw.com/article/ecd85440c5b18ed47f23012934eb1340?DCMP=NWL-pro_top

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Individual declared ineligible for unemployment insurance benefits after failing to obtain a required license

Individual declared ineligible for unemployment insurance benefits after failing to obtain a required license

2014 NY Slip Op 01802, Appellate Division, Third Department

A former school teacher [Claimant] was found ineligible for unemployment insurance benefits. The Unemployment Insurance Appeals Board determined that Claimant voluntarily left his employment without good cause.

Claimant had been informed by his employer that he was required to obtain a Master's degree in education in order to be properly certified and be continued in his employment.

Although Claimant had been given three extensions of the deadline to meet this requirement, he failed to complete the degree at an accredited school before the expiration of the time allotted. Accordingly, Claimant’s employer terminated the employment due to lack of a valid teaching certificate.

Claimant challenged the Unemployment Insurance Appeals Board’s determination that he had voluntarily left his employment without good cause and he was charged with a “recoverable overpayment” based on the unemployment insurance benefits he had earlier been given.

The Appellate Division sustained the Board’s ruling, finding that the record established that Claimant had sufficient time to obtain the Master's degree from an accredited school prior to the deadline set by the employer. Finding that Claimant failed to take reasonable steps to protect his continuation in employment, the court ruled that substantial evidence supported the decision of the Unemployment Insurance Appeal Board that Claimant had voluntarily separated from his employment without good cause.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01802.htm
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Unless the collective bargaining agreement specifically so provides, the contract grievance procedure set out in the agreement is not available to a retiree

Unless the collective bargaining agreement specifically so provides, the contract grievance procedure set out in the agreement is not available to a retiree

2014 NY Slip Op 01845, Appellate Division, Fourth Department

A retired employee [Retiree] of the Village [Village] commenced this breach of contract action seeking to compel Village to pay 80% of his health insurance plan premiums, alleging that Village had paid him that percentage pursuant to the terms of a collective bargaining agreement (CBA) between the Village and the union when he was an active employee.

Village moved to dismiss Retiree’s complaint on the ground that the grievance procedure provided for in the CBA was the exclusive procedure by which Retiree could seek redress and that he was required to bring his claim through the grievance procedure despite his status as a retiree. Retiree opposed Village's motion, arguing that the CBA restricted the class of individuals who could file a grievance to active employees.

Supreme Court ruled that the language of the CBA contained no such restriction and granted Village's motion. The Appellate Division disagreed, concluding that Supreme Court erred in interpreting the CBA, and reinstated Retiree’s complaint.

The Appellate Division explained that except when the CBA provides otherwise, is well settled that an active employee may not invoke a grievance procedure set out in a CBA as an individual but must proceed, through the union, in accordance with the contract."*

Here, however, the complaining party is a retiree rather than an active employee. The court noted that the CBA uses the word "member" is used interchangeably with the word "employee," and several CBA provisions that apply to "members," such as provisions for holiday pay and annual physicals, clearly affect only active employees. Further, said the court, the CBA provides that Village recognizes the union "as the exclusive representative for collective negotiations with respect to salaries, wages, and other terms and conditions of employment of all full-time and part-time employees" (emphasis in the decision).

Giving the word "member" its plain meaning, and interpreting the contract as a whole, the Appellate Division said that it agreed with Retiree that the word "member" means a member of the union. It is undisputed that Retiree ceased to be a member of the union in the collective bargaining unit upon his retirement. According, said the court, the clear and unambiguous terms of the CBA meant that Retiree, who was no longer a "member" of the union when he became aggrieved, could not file a grievance.

Citing Matter of DeRosa v Dyster, 90 AD3d 1470, a case in which the collective bargaining agreement expressly permitted "grievances concerning retirement benefits" and expressly provided for health insurance benefits after retirement, the majority of DeRosa court held that because only an individual "employee" could file a grievance, DeRosa, a retired employee of City of Niagara Falls, could not have filed a grievance before commencing a CPLR Article 78 proceeding. 

The Appellate Division stated that fact that the CBA expressly provides for health insurance benefits after retirement does not necessarily mean that an individual retiree will be permitted to use the grievance procedure to enforce those provisions. In Retiree’s case, as in DeRosa, “the clear and unambiguous terms of the CBA prevented plaintiff from filing a grievance.”

* Other such exception recognized by the courts include: [1] a retiree may initiate a grievance in the event the act or omission complained of arose while he or she was an active employee; and [2] an employee may initiate the contract grievance procedure "when the union fails in its duty of fair representation" but, as a condition precedent to so doing, the employee must allege and prove that the union breached its duty to provide fair representation to the individual.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01845.htm
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Substantial evidence that police officer is able to perform the duties of his or her position precludes granting the individual General Municipal Law §207-c benefits

Substantial evidence that police officer is able to perform the duties of his or her position precludes granting the individual General Municipal Law §207-c benefits

2014 NY Slip Op 01883, Appellate Division, Fourth Department

A municipal police officer was injured while on duty and received General Municipal Law §207-c benefits*for a period of time. Those benefits were discontinued when the officer returned to work in a light-duty capacity. Returning to full duty later in the year, in January 2012, the officer stopped working and sought to resume receiving §207-c benefits.

A hearing was held and the Hearing Officer determined that the police officer could perform the duties of a police officer and denied his application for §207-c benefits.

The appointing authority adopted the Hearing Officer’s findings and determination. The police officer sued, seeking a court order annulling the appointing authority’s determination that he was not entitled to §207-c benefits.

The Appellate Division, finding that the Hearing Officer's determination that the police officer was able to perform his regular duties was supported by substantial evidence, affirmed the employer’s determination and dismissed the officer’s appeal.

* §207-c. of the General Municipal Law provides for the payment of salary, wages, medical and hospital expenses of policemen and others involved in law enforcement suffering an injury or illness incurred in the performance of duties.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01883.htm
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The Warren M. Anderson Breakfast Series Seminar’s Infrastructure Funding session is scheduled for April 8, 2014

The Warren M. Anderson Breakfast Series Seminar’s Infrastructure Funding session is scheduled for April 8, 2014

Source: Government Law Center, Albany Law School

The Albany Law School’s Government Law Center will host the next 2014 Annual Warren M. Anderson Breakfast Seminar Series, a nonpartisan hour-long breakfast program, on April 8 from 8-9 a.m. in the Assembly Parlor, at the State Capitol, 3rd FL. The program continues to be offered free of charge, but space is limited.

The speakers
 

 ●Hon. Félix Ortiz, NYS Assemblymember & Sponsor, The Urban Restoration Bond Act of 2014

●Hon. Kathy Sheehan, Mayor, City of Albany

● Michael J. Elmendorf II, President & CEO, Associated General Contractors of NYS

●Denis Hughes, Senior Advisor, Brown & Weinraub PLLC & Former President, NYS AFL-CIO

 
will discuss Infrastructure Funding required for costly, yet essential repairs to aging roads and bridges, water supply systems and drainage. 

Pending legislation would allow the state to borrow $2 billion for infrastructure improvements.

For those interested, each seminar is accredited for one hour of transitional and non-transitional CLE credit in the area of “Professional Practice.”

To register or to obtain more information, contact Ms. Amy Gunnells at agunn@albanylaw.eduor telephone 518-445-2329.

Some critical procedural elements to be satisfied in order to provide the Commissioner jurisdiction to consider an application to remove a school board member or school district officer

Some critical procedural elements to be satisfied in order to provide the Commissioner jurisdiction to consider an application to remove a school board member or school district officer

Application for removal of the President and Member at Large of a school board. Decisions of the Commissioner of Education, Decision 16,594

The Commissioner never reached the merit of Petitioner's application seeking the removal of the President and member of the school board alleging that the individual was guilty of neglecting her duties, willfully violating the law on various; violating board policies concerning the conduct of board meetings and the supervision, management, and implementation of district business, including staffing, contractual matters, and legal obligations as well violating the Open Meetings Law and breaching her fiduciary duties to the school district. Finding that  Petitioner failed to satisfy certain procedural requirements, the Commissioner dismissed Petitioner's application.

Among the procedural omissions commented on by the Commissioner were the following:

1. An application must be timely filed as an appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act [or omission] complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16). The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1)

2. A removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurredmore than 30 days before the application was instituted.*

3. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner, citing 8 NYCRR §276.5. The Commissioner explained that although this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent that are otherwise untimely.

4. The Commissioner will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the application.

5. The late filing of memoranda of law may be permitted by the Commissioner, in his sole discretion, upon written application setting forth good cause for the delay and demonstrating the necessity of such memoranda to a determination of the appeal (see 8 NYCRR §276.4[a]).

6. Section 277.1(b) of the Commissioner’s regulations requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office (8 NYCRR §277.1[b]) and the failure to comply with §277.1(b) is a fatally defective and does not secure jurisdiction over the intended respondent.** The Commissioner noted that the Petitioner used the notice prescribed under §275.11(a) for an appeal brought pursuant to Education Law §310, explaining that the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings and the failure to comply with §277.1(b) necessarily results in a jurisdictional failure and requires dismissal of the application. 

7. In the event the petitioner claims that his or her petition is timely because the respondent’s conduct constitutes a continuing wrong, the continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful the employment of an unqualified individual or certain ongoing expenditures under an austerity budget that did not comply with the law.

8. In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief (8 NYCRR §275.10)

One issue, however, was addressed relevant to this application was considered on the merits -- the Respondent’s request that the Commissioner issue a certificate of good faith pursuant to Education Law §3811(1).

The Commissioner, noting that such certification is solely for the purpose of authorizing a school board to indemnify a respondent for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his or her powers or performance of duties as a board member, explained that it is appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith.

The Commissioner granted the Respondent's request in view of the fact the application in this instance was denied on procedural grounds and there has been no finding that the Respondent acted in bad faith, indicating that he did so solely because, for the purpose of Education Law §3811(1), respondent “appears to have acted in good faith.”

* Here petitioner asserted that his delay should be excused because he “wanted to give an opportunity for Respondent to resign in light of” his  allegations. However, the petitioner must establish to the satisfaction of the Commissioner that there was “good cause for [the] delay.”

 

** The Commissioner noted that the applicant used the notice prescribed under §275.11(a) for an appeal brought pursuant to Education Law §310.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/D16594.pdf

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