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Discontinuing the services of a probationary employee

Discontinuing the services of a probationary employee

2014 NY Slip Op 05440, Appellate Division, Second Department

A New York City Department of Education probationary employee [PE] serving a position in the Unclassified Service was terminated during her probationary period. PE sued and Supreme Court directed the Department not discontinue PE’s employment as a probationer but, rather, to take some alternative action in that regard.

The Department appealed and the Appellate Division reversed the lower court’s ruling “on the law and the facts.”

The Appellate Division explained that contrary to PE’s claim, and Supreme Court’s determination, the Department “merely discontinued [PE’s] probationary service” and did not terminate her employment with the New York City Department of Education. Presumably PE had been on leave from another position with the Department and was reinstated to her former position when her services as a probationer were discontinued..

Finding that there was “a valid basis for the [Department’s] determination that the [PE’s] probationary service was unsatisfactory,” the Appellate Division ruled that “Supreme Court erred by, in effect, directing the [Department] to take some alternative ameliorative measure other than the discontinuation of her probationary service.

In contrast, were PE serving as a probationary employee but was not on leave from a position in which she had tenure, she would have been terminated from her employment with the Department as a result of her having satisfactorily completing her probationary period.

For example, with respect to employees in the Classified Service, Civil Service Law §63, in pertinent part, provides “When probationary service is required upon promotion, the position formerly held by the person promoted shall be held open for him [or her] and shall not be filled, except on a temporary basis, pending completion of his [or her] probationary term.
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Providing for the defense and indemnification of officers and employees of public entities named as defendants in civil litigation

Providing for the defense and indemnification of officers and employees of public entities named as defendants in civil litigation
2014 NY Slip Op 05510, Appellate Division, Second Department

A number of employees [Plaintiffs] of the State sued their employer and named an agency employee “in her official capacity” for damages for “intentional infliction of emotional distress, negligent misrepresentation, fraudulent misrepresentation, defamation, abuse of process, and civil rights violations pursuant to 42 USC § 1983.”

In response to the Attorney General’s motion to dismiss the complaint, Plaintiffs filed an amended complaint removing the agency and the employee “in her official capacity” as defendants and then sought to name the employee as the defendant “in her individual capacity.”

The bottom line: Supreme Court granted Attorney General’s motion to dismiss the amended complaint as “time barred” and Plaintiffs appealed.

Among the issues considered by the Appellate Division was Plaintiffs’ contention that the Attorney General “was without authority to defend” the employee in this action as she was being sued in her “individual capacity” rather than in her “official capacity.” The Appellate Division said that Plaintiffs' arguments were “without merit,” citing Public Officers Law §17[2][a])*.

§17[2][a] provides for the defense of State officers and employee in any civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the officer or employee was acting within the scope of his or her public employment or duties, including the federal civil rights statutes, 42 USC 1981 and 42 US 1983.

The Appellate Division then sustained Supreme Court’s ruling that the statutes of limitations applicable to the Plaintiffs' claims” filed against the employee in her individual capacity had expired, explaining that the statute of limitations was not tolled by the doctrine of equitable estoppel as the record establishes that Plaintiffs had "timely awareness of the facts requiring [them] to make further inquiry before the statute[s] of limitations expired.”

* §18[2][a] of the Public Officers Law permits public entities other than the State as an employer to provide for the defense and indemnification of its officers and employees of public entities upon its adoption of an appropriate law, by-law, rule, regulation or resolution.
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Failure to notify superior of inmate’s not receiving his medication

Failure to notify superior of inmate’s not receiving his medication

OATH Index Nos. 591/14, & 592/14

Two correction officers [COs] were charged with failing to notify their supervisor or medical staff that an inmate had not received his medication.

The inmate had recently been admitted to the double detoxification unit, which is designated for the treatment of inmates experiencing symptoms of alcohol and opiate withdrawal. The COs removed the inmate from a line of inmates waiting to receive detoxification medication after he began to act irrationally and left him in an area away from other inmates for several hours.

The inmate, who did not receive his prescribed dosage of medication, died after a subsequent use of force involving correction officers other than the COs charged in this disciplinary action.

OATH Administrative Law Judge Astrid B. Gloade, sustained the charges that COs' performance was deficient and recommended 20 days' suspension. Dep't of Correction v. Wisher,

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A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

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Terminating a “government” retirement plan

Terminating a “government” retirement plan

Source: Employee Plans News, Issue 2014-11, dated August 4, 2014

The Internal Revenue Service August 2014 Issue of Employee Plans News has a number of articles concerning terminating an employee defined retirement plan including the following [Click on the text highlighted in color to access the information posted on the Internet):

Terminating a retirement plan

Plan amendments required before termination

FAQs regarding plan terminations

FAQs regarding partial plan termination

Also considered are Internal Revenue Code Section 401(a)retirement plan established and maintained for the employees of:

• the United States or its agency or instrumentality;
• a state or political subdivision, or its agency or instrumentality; or
• an Indian tribal government or its subdivision, or its agency or instrumentality (participants must substantially perform services essential to governmental functions rather than commercial activities.)

Other types of governmental plans include:

• 403(b) tax-sheltered annuity plans [These plans are also referred to as Tax Deferred Annuity Plans in which participation is typically limited to employees of an educational entity. See, for example, Education Law Article 8-C, SUNY’s Special Annuity Plan];
• 457 deferred compensation plans;
• qualified excess benefit arrangements; and
• Certain grandfathered 401(k) plans adopted by a governmental entity before May 6, 1986.

The IRS will also conduct a “webinar” on August 14, 2014 at 2:00, EDT, focusing on how the IRS defines the date of termination, final funding requirements, Pension Benefit Guaranty Corporation (PBGC) issues, reversions and what is needed in a notice of intent to terminate the plan.
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Teacher evaluation regulations

Teacher evaluation regulations

Source: NYMuniBlog

An article entitled Amendment to Teacher Evaluation Regulations Creates Further Confusion* by Harris Beach attorney Warren H. Richmond was published in the July 30, 2014 edition of the New York Law Journal.

The article discusses "what is purported to be an effort to provide guidance to New York school districts" concerning the termination of probationary teachers in consideration of the state’s recently enacted Annual Professional Performance Review (APPR) statute, Education Law Section 3012-c"

The article is posted on the Internet at: http://www.harrisbeach.com/files/2014/NYLJ%20Richmond%20Teacher%20Evaluation%207%2030%2014%20pdRf.pdf

* See 8 NYCRR 30-2.1(d)

Changing a Connecticut teacher’s professional obligation from full-time to part-time not a “termination” requiring a pre-termination notice and hearing

Changing a Connecticut teacher’s professional obligation from full-time to part-time not a “termination” requiring a pre-termination notice and hearing

Mirabilio v Regional School District 16 [Connecticut], USCA, Second Circuit, Docket #13-4156

A tenured teacher sued the school board alleging that the board had violated her due process rights under the Fourteenth Amendment and Connecticut General Statute §10-151 when it failed to provide her with “notice and a hearing” before reducing her full-time position to a half-time position.

The U.S. Circuit Court of Appeals affirmed the district court's dismissal of her action, ruling that neither notice nor a hearing was required where the change in the teacher’s terms and conditions of employment only involved a reduction in hours and salary as such a change “did not constitute a ‘termination’ under Connecticut law.”

In contrast, the Decision of the Commissioner of Education in the Appeal of Morehouse, Decisions of the Commissioner of Education #13,896, suggests that the change of a position from full-time to half-time creates a layoff situation as the full-time position “is abolished,” which results in the termination of the least senior tenured incumbent.

The Board of Education had reduced Morehouse’s full-time technology teacher position to a half-time position and he continued serving with school district as a half-time technology teacher. Subsequently the half-time position was “taken over” by a BOCES and Morehouse’s half-time position was abolished.

When the school board later announced a vacancy for a full-time technology teacher, Morehouse “made a claim to that position pursuant to Education Law §§2510 and 3013,” contending that his full-time position had been partially abolished and that he was entitled to the position because of his status on the preferred eligible list.

The school district argued that its changing the full-time position to a part-time position did not entitle Morehouse to have his name placed on a preferred eligible list and, in any event, he lost any such right when the program in which he taught was transferred to BOCES pursuant to Education Law §3014-a and he taught full time in that position.

Although the Commissioner dismissed Morehouse’s appeal, the decision points out that   “Assuming, without deciding, that [Morehouse] became entitled to a position on the preferred eligible list as a result of [the school district’s] reduction of his position from full time to half time on June 18, 1992, [Morehouse’s] retirement from the teaching profession at the end of the 1995-1996 school year effectively removed him from such list” [emphasis supplied].

The Commissioner noted that “Neither party has submitted any authority on the precise effect of retirement on one's rights to be continued on a preferred eligible list. I find that retirement should have the same effect as a resignation with acceptance of termination benefits. In this particular case, petitioner changed employers in 1993 pursuant to a statutory provision, worked full time for several years, and then formally retired, apparently without consulting respondent with respect to any effect that his retirement would have on his rights, if any, in the district. These actions amount to a formal, presumably permanent, withdrawal from the teaching profession, and justify respondent's hiring of a different candidate. I also note that 8 NYCRR §80.35(a)(6) restricts the employment of retired person generally to situations where no other qualified person is readily available. This policy would be difficult to advance if retired persons were allowed to remain for extended periods on preferred eligible lists.

The Commissioner then commented “If I were not dismissing on this ground, I would dismiss for petitioner's failure to provide any proof that the position which became available in 1997 was "similar" to the full-time position he previously held. While petitioner alleges such similarity, respondent denies it, and petitioner provides no evidence of similarity."* 

This dicta**generates some speculation that had Morehouse not retired from his position with BOCES, the Commissioner may well have concluded that his rights to reinstatement from the school district’s preferred list for technology teacher may have survived for the seven-year period mandated by law notwithstanding his employment by BOCES.

* In order to establish entitlement to appointment to a new position under §§2510 and 3013, the petitioner must first establish that the two positions are in the same tenure area (see Kelley v. Ambach, 83 AD2d 733);

** The term dictais applied to statements by a judicial or quasi-judicial body that do not embody the resolution or determination of the specific case before the tribunal.

The Mirabilio decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/08e758bb-c3fe-4a57-9dad-3f8086d54045/2/doc/13-4156_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/08e758bb-c3fe-4a57-9dad-3f8086d54045/2/hilite/

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

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School board’s abolishment of library media specialist positions challenged

School board’s abolishment of library media specialist positions challenged

Appeal to the Commissioner of Education, Appeal #16,631

The School Board abolished six library media specialist positions in the district. One of the media specialists [MS] appealed the Board’s action on behalf of herself and the five other media specialists, alleging that [1] its elementary schools still contain the same library facilities and resources to which elementary students have regular access and [2] the School Board created literacy centers at each of its elementary schools at which each elementary school class receives one reading class per week taught by newly-employed reading teachers and teaching assistants.

Specifically, MS alleged that the Board’s action effectively closed every elementary school library and discontinued the provision of library services, in violation of 8 NYCRR §91.1. As redress, she asked that the Commissioner direct the Board to reinstate her and the other five media specialists to their former positions with back pay and benefits.

Initially the Commissioner observed that “the appeal must be dismissed” for a number of procedural reasons, including:

1. To the extent that MS attempted to assert claims on behalf of “all elementary students” in the district, she lacks standing to do so.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights.

2. Although MS had standing to bring this appeal on her own behalf to the extent she has been aggrieved by the abolition of her position, the Commissioner explained that she lacked standing to assert the rights of others both with respect to the abolition of the library media specialist positions and to the alleged inadequacy of the school district providing school library services.

3. MS’s appeal failed to join necessary parties, i.e., the least senior of the district’s reading teachers, including, where appropriate, the newly hired reading teachers employed to teach reading classes at the literacy centers in each elementary school. 

The Commissioner then said that “Even if [MS’s] application and appeal were not dismissed on procedural grounds, they would be dismissed on the merits.” 

Explaining that 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 petitioner seeks relief, the Commissioner said that [1] MS failed to establish facts sufficient to warrant the removal of the board and [2] MS failed to articulate any decision, order, rule or regulation of the Board of Regents or the Commissioner of Education that members of the School Board willfully disobeyed.

As to MS’s request that the Commissioner “discipline and/or reprimand members of the district’s staff,” the Commissioner noted that it is a board of education rather than the Commissioner of Education that has the authority to take disciplinary action against a school district employee.

Responding to MS’s request that the Commissioner “conduct and investigation” the Commissioner said that he “lacks the authority to conduct an investigation as requested by MS. Further, an appeal to the Commissioner of Education pursuant to Education Law §310 is appellate in nature and does not provide for investigations.

The Commissioner then dismissed MS’s appeal.

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume54/d16631

Showing a non-retaliatory purpose for its actions and the absence of evidence that the employer’s explanation was “mere pretext” defeats employees’ Title VII complaint

Showing a non-retaliatory purpose for its actions and the absence of evidence that the employer’s explanation was “mere pretext” defeats employees’ Title VII complaint

USCA, 2^nd Circuit, Docket 12-1526

A complaint filed against the Onondaga County Sheriff’s Department pursuant to Title VII of the Civil Rights Act [42 U.S.C. 2000e-3] alleged the plaintiffs had suffered retaliation as the result of their filing a complaint with EEOC.

The Department had earlier initiated an investigation of claims of racial harassment based on complaints allegedly made by prisoners at the Department’s facility that targeted the plaintiffs as engaging in discriminatory actions. Plaintiffs contend that they were then threatened with disciplinary action because of their filing “false reports” with the EEOC.

The Circuit Court of Appeals held that under the circumstances, the Department’s investigation of the complaints made by prisoners did not constitute adverse employment actions.

While the court said that threats by the Department to initiate disciplinary action charging the plaintiffs with making a false report to the EEOC established a prima facie case of unlawful retaliation, the Circuit Court ruled that the Department had shown a non-retaliatory purpose for conducting the investigation and plaintiffs presented no evidence that the Department’s explanation constituted “mere pretext.”

The Circuit Court then affirmed the district court's dismissal of plaintiffs' retaliation claims.

The decision is posted on the Internet at: http://www.ca2.uscourts.gov/decisions/isysquery/819a2023-998c-439f-ac31-d9f065e3285b/4/doc/12-1526_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/819a2023-998c-439f-ac31-d9f065e3285b/4/hilite/
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Threatening and harassing co-workers

Threatening and harassing co-workers

OATH Index No. 1404/14

An emergency medical technician [EMT] was charged with committing five incidents of misconduct over a two-year period.

OATH Administrative Law Judge John B. Spooner sustained the charges, finding EMT  threatened and harassed co-workers.

ALJ Spooner recommended that EMT's employment should be terminated due to the severity of his behavior. Fire Dep't v. Holdip, 

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A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending August 2, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending August 2, 2014

Click on text highlighted in color  to access the full report 

Fire Department treasurer arrested for stealing public funds

New York State Comptroller Thomas P. DiNapoli announced the arrest of Dennis Snow, the treasurer of the LeRoy Fire Department in Genesee County. Snow was charged with two counts of grand larceny in the third degree (class D felony), 42 counts of forgery in the first degree (class C felony) and two counts of falsifying business records in the first degree (class E felony) for allegedly stealing nearly $50,000 in public funds.

DiNapoli’s office found that Snow allegedly made unauthorized transfers, withdrawals and deposits from the department’s account, as well as from the firemen's benevolent association. Snow used the money to pay his personal bills and admitted that he forged the required co-signers signatures in order to complete his theft. The audit is expected to be finalized in the next month. Snow is due back in court on August 13.

DiNapoli encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th floor, 110 State St., Albany, NY 12236.

Schuyler Heights Fire District – Controls Over Claims Processing (Albany County)
Except for some minor exceptions, the claims reviewed were adequately supported and were for proper district purposes. However, the board’s failure to adequately audit claims and approve the abstract prior to the treasurer making payment on the claims creates a deficiency in the district’s internal controls over claims processing.

Village of Voorheesville – Claims Processing (Albany County)
Generally, the village’s internal controls over claims processing were adequate to ensure claims were for appropriate purposes, adequately supported and properly audited and approved.

Willsboro Fire District – Controls Over Financial Activities (Essex County)
The treasurer does not maintain running cash balances in the check book registers, maintain accounting records with cash accounts and subsidiary revenue and expenditure accounts or reconcile bank balances to book balances. The last annual financial report that was filed with the Office of the State Comptroller was for the 2010 fiscal year, which was filed in October 2013, more than two years late.

Town of Wilson – Purchasing (Niagara County)
The board did not ensure that the highway superintendent complied with competitive bidding requirements or the town’s procurement policy when making purchases. The superintendent did not consistently solicit written quotes or competitive bids as required, or attach appropriate supporting documentation to claims.

Argyle Central School District – Internal Controls Over Payroll (Washington County)
The board’s lack of comprehensive written policies and procedures resulted in the bookkeeper performing incompatible duties related to payroll processing and maintaining all leave accrual balances. The business manager’s and treasurer’s limited roles related to processing payroll did not provide sufficient oversight or monitoring of the bookkeeper’s work.

Forestville Central School District – Transportation Operations and Cafeteria Financial Condition (Chautauqua County)
District officials have not identified opportunities to reduce student transportation cost by performing appropriate analyses, such as an annual review of bus routes. By improving transportation efficiency, auditors estimate that the district could save approximately $36,500 annually and more than $460,000 by maximizing bus capacity for in-district runs, thereby reducing routes and eliminating the need to replace three buses over the next two years. In addition, the cafeteria fund’s financial condition has declined over the past five years as it experienced operating deficits, resulting in a $215,678 deficit fund balance as of June 30, 2013.

Northern Adirondack Central School District – Internal Controls Over Extra-Classroom Activity Funds (Clinton County)
The district’s controls over extra-classroom activity funds were not operating effectively. The board did not ensure that district officials implemented and enforced its policy governing the operations of the activity funds. Auditors found that 30 cash receipts totaling $19,322 had no supporting documentation and four student treasurers did not maintain ledgers during the 2012-13 fiscal year.

Schenevus Central School District – Budgeting (Otsego County)
District officials have accumulated excessive fund balances and not adequately reported the district’s financial condition to the taxpayers. As a result, they have withheld significant funds from productive use and prevented taxpayers from making informed decisions during the budget voting process. 

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County awarded attorney fees and costs as the prevailing party in a civil rights action

County awarded attorney fees and costs as the prevailing party in a civil rights action

Carter v Village of Ocean Beach, USCA, 2^nd Circuit, #13,815

Plaintiffs, former seasonal and part-time police officers of the Village of Ocean Beach, sued the Village and County and various officers and employees of those entities alleging multiple wrongful termination and defamation. They subsequently withdrew all claims except for their allegation contending that their First Amendment rights had been violated by the Village and the other named defendants.

As to Plaintiffs’ First Amendment claims, the District Court granted summary judgment in favor of all of the defendants, explaining that Plaintiffs’ First Amendment claims were barred as they were made only pursuant to the defendants’ performing official duties and thus Plaintiffs’ allegations were “constitutionally unprotected,” citing Weintraub v Board of Education, 593 F3d at 196.

As to the dismissal of Plaintiffs’ procedural due process claims, the Court of Appeals explained that their [1] breaks in employment defeated any claim to property rights under New York Civil Service Law and [2] the availability of a meaningful post deprivation state law remedy defeated any liberty based “stigma plus” claims with respect to their allegations of defamation.

Rejecting Plaintiffs’ argument that (1) their claims were not frivolous; (2) they should not be liable for fees and costs associated with their voluntarily withdrawal of their State law claims and claims not set out in 42 USC §1988, the Second Circuit Court of Appeals sustained the District Court’s order granting attorney's fee and costs to the only County defendants* in the amount of $63,990.00 as the prevailing party.  

In the words of the court, “Plaintiffs’ claims were frivolous from the outset and required the County Defendants to litigate continuously (at taxpayer expense) since March 2007,” explaining that the County Defendants did not employ, or supervise, the Plaintiffs and had no meaningful role in any alleged wrongs advanced by the Plaintiffs.

* Plaintiffs brought their state law claims in state court, which dismissed all claims against the county at the pleading stage of the action.
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