New York State Comptroller Thomas P. DiNapoli announced the following audits were issued

On January 10, 2019 New York State Comptroller Thomas P. DiNapoli announced the following audits were issued

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Department of Corrections and Community Supervision (DOCCS): Oversight of Sex Offenders Subject to Strict and Intensive Supervision and Treatment (Follow-Up) (2018-F-21)
The Sex Offender Management and Treatment Act requires that Strict and Intensive Supervision and Treatment (SIST) parole officers to have a minimum number of monthly contacts with paroled offenders. An initial audit identified weaknesses in officers meeting these requirements and significant differences in compliance among the locations tested. Auditors also found that officers didn’t adequately document their responses to electronic monitoring alerts. In a follow-up, auditors found DOCCS has made significant progress and implemented all of the recommendations.

Dormitory Authority of the State of New York (DASNY): Monitoring of Prevailing Wage Compliance on Construction Contracts (Follow-Up) (2018-F-30)
An initial audit found DASNY generally monitored contractors and sub-contractors on its projects to ensure they paid employees at the prevailing wage rate, but auditors found some shortcomings. In a follow-up, auditors found DASNY has made some progress. Of the two prior audit recommendations, one was implemented and one was partially implemented.

Office of General Services (OGS): Food Metrics Implementation (Follow-Up) (2018-F-23)
State law requires OGS and the Department of Agriculture and Markets to develop regulations, establish guidelines, and provide training on New York state food purchasing to agency personnel involved in the acquisition process. OGS is also responsible for tracking data on state agencies’ food purchases and for providing a Food Metrics Annual Report each year detailing these purchases. An initial audit report found that the two Food Metrics Annual Reports completed by the time of the initial audit fell short of providing complete and reliable information regarding the state’s efforts to support its farm and agricultural businesses. In a follow-up, auditors found OGS has made significant progress in correcting the problems.

Department of Health (DOH): Administrative Costs Used in Premium Rate Setting (Follow-Up) (2018-F-10)
An initial audit found DOH overpaid managed care organizations more than $18.9 million in mainstream Medicaid managed care premiums for the state fiscal year 2014-15 due to a flaw in the DOH’s rate-setting methodology. In a follow-up, auditors found DOH made some progress addressing the problems identified in the initial audit report but additional actions are needed.

Department of Health (DOH): Improper Medicaid Payments to Eye Care Providers (Follow-Up) (2018-F-28)
The initial audit report identified vulnerabilities in the DOH’s provider enrollment and revalidating processes that undermine DOH’s ability to ensure that only qualified providers participate in the Medicaid program and prevent improper payments for services rendered by providers who do not meet federal and state requirements. In a follow-up, auditors found DOH has made progress addressing the problems identified in the initial audit.

Department of Health (DOH): Medicaid Payments for Pharmacy Claims – Joia Pharmacy and a Related Prescriber (Follow-Up) (2018-F-26)
From Jan. 1, 2008 through Dec. 31, 2012, DOH paid Joia more than $7.7 million for 50,060 claims on behalf of 706 Medicaid recipients. One particular doctor was listed as the prescriber on 31,351 (63 percent) of the 50,060 claims. Auditors found that, based on a statistical projection of the audit sample results, DOH made improper payments totaling approximately $1.5 million to Joia for pharmacy claims. In a follow-up, auditors determined DOH made progress in addressing the issues. Of the report’s four audit recommendations, three were implemented and one was partially implemented.

State Education Department: Headstart of Rockland Inc. (HSOR): Compliance with the Reimbursable Cost Manual (2018-S-25)
HSOR is a not- for-profit special education provider located in Rockland County. It provides preschool special education services to children with disabilities who are between three and five years of age. For the fiscal year ended June 30, 2015, auditors identified $7,958 in ineligible costs that HSOR reported for reimbursement. .

State Education Department: Developmental Disabilities Institute Inc. (DDI): Compliance with the Reimbursable Cost Manual (2018-S-3)
DDI is a Suffolk County-based not-for-profit organization approved by SED to provide preschool special education services to children with disabilities who are between the ages of three and five years. For the three years ended Dec. 31, 2015, auditors identified $138,718 in reported costs that did not comply with state requirements

State Education Department (SED): Leake and Watts Services Inc.: Compliance with the Reimbursable Cost Manual (2017-S-73)
Leake and Watts (now known as Rising Ground) is a not-for-profit special education provider located in Westchester County. Leake and Watts provides preschool special education services to children with learning disabilities who are between three and five years of age. For the fiscal year ended June 30, 2015, auditors identified $228,071 in ineligible costs that Leake and Watts reported for state reimbursement.

State Education Department: Pinnacle Organization: Compliance with the Reimbursable Cost Manual (2018-S-6)
Pinnacle is a not-for-profit special education provider located in Oswego County. It provides preschool special education services to children with disabilities who are between three and five years of age. For the three fiscal years ended June 30, 2015, auditors identified $103,220 in ineligible costs that Pinnacle reported for state reimbursement.

Department of State: Monitoring of Not-for-Profit Cemeteries for Fiscal Stability and Adequate Facility Maintenance (Follow Up) (2018-F-22)
An initial audit report found numerous issues with the agency’s monitoring. For example: as of Sept. 30, 2016, records indicate 642 cemeteries (37 percent) had overdue audits and 285 (16 percent) had delinquent annual reports. For 145 cemeteries (8 percent), audits were overdue and annual reports were delinquent as well. As of Dec. 1, 2016, 391 cemeteries (22 percent) had not been inspected in over seven years. In a follow-up, auditors found some progress has been made to the problems identified in the initial audit. Of the four prior report recommendations, two were implemented and two were partially implemented.

Internet online anonymity didn't shield lawyer from ethical obligations

Internet online anonymity didn't shield lawyer from ethical obligations

Rochester, New York attorney Nicole Black has posted an item on her LawBlog Sui Generus summarizing a decision by the Supreme Court of Louisiana, In re: Salvadore R. Perricone, No. 2018-B-1233, in which the court considered whether Perricone violated his ethical obligations as an attorney as a result of anonymous comments that he posted online between 2007-2014. Some of the comments related to trials for which he was the prosecuting attorney and others related to trials that his colleagues were prosecuting. The court concluded that the appropriate sanction for Perricone’s conduct was disbarment.

The Internet link to Ms. Black's article is:

https://nylawblog.typepad.com/suigeneris/2019/01/louisiana-court-online-anonymity-doesnt-shield-lawyers-from-ethical-obligations.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+SuiGeneris--aNewYorkLawBlog+%28Sui+Generis--a+New+York+law+blog%29

Former Savona Mayor arraigned on charges related to defrauding the Village

Former Savona Mayor arraigned on charges related to defrauding the Village

Source: Office of the State Comptroller Thomas P. DiNapoli

Former Savona Mayor Gregge Harrian was arraigned in Steuben County Court on felony charges of five counts of offering a false instrument for filing and five counts of misdemeanor falsifying business records. As Mayor, Harrian allegedly submitted fraudulent vouchers and falsified records to trick the village into paying his personal expenses.*

“Mr. Harrian allegedly abused his authority to deceive the residents he was supposed to serve,” State Comptroller Thomas P. DiNapoli said, “I thank District Attorney Brooks Baker and Sheriff James Allard for bringing Mr. Harrian to justice and for our continued partnership to fight public corruption.”

Harrian, 52, resigned his position and left the state after allegedly submitting dozens of unsupported, false, inaccurate or unfounded mileage and purchase claims, according to the audit and investigation. A second unnamed defendant was indicted for facilitating the alleged crimes. 

The indictment was the result of a joint investigation by Comptroller DiNapoli, Steuben County District Attorney Baker and Steuben County Sheriff Allard.

An earlier State Comptroller’s auditfound that Harrian also appointed his wife as clerk-treasurer under his supervision, in violation of the village employee handbook, and approved her unsubstantiated claims of off-hours work for $21,000 in extra pay.

* N.B. These charges are accusations and the individual is presumed innocent unless and until proven guilty.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and 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. Review prior cases at http://www.osc.state.ny.us/investigations/index.htm

Administrative due process trumps an employer's claim to a "management right" to summarily terminate an employee for cause

Administrative due process trumps an employer's claim to a "management right" to summarily terminate an employee for cause

Matter of the Arbitration between the Town of Greece Guardians' Club, Local 1170 and the Town of Greece, 2018 NY Slip Op 08775, Appellate Division, Fourth Department

Supreme Court rejected the Guardians' Club, Local 1170's [Local 1170] petition to confirm an arbitration award and granted the Town of Greece's [Town] cross petition to vacate the arbitration award. The Appellate Division unanimously reversed the Supreme Court's ruling "on the law" and confirmed the arbitration award in favor of Local 1170.

The genesis of the demand for arbitration was the Town's chief of police terminating an employee for alleged misconduct without "notice and hearing." Local 1170 filed a grievance on behalf of the employee and ultimately demanded that the matter be submitted to arbitration as provided the Collective Bargaining Agreement [CBA] between the Town and Local 1170.

The arbitrator, noting that the Collective Bargaining Agreement [CBA] between the Town and Local 1170  allowed the Town to terminate the grievant "for cause," opined that the term "for cause" was synonymous with the term "just cause," and that "just cause encompasses some degree of due process." Finding that the grievant's termination fell short of the requirements of due process,* the arbitrator concluded that the grievant "was not provided even rudimentary due process" prior to being terminated and thus the employee's termination "must be found to be without just cause."

Among the defects in failing to provide the grievant with "due process" identified by the arbitrator were the following:

1. The termination letter that the chief of police delivered to the grievant at their meeting was broadly worded and failed to provide her with notice of the charges against her.

2. The grievant was not given an opportunity to respond to the charges of alleged misconduct before the chief of police made the decision to terminate the grievant.

3. The chief of police did not conduct a full and fair investigation inasmuch as he failed to interview a key witness to the alleged misconduct, the grievant herself.

Accordingly, the arbitrator concluded that there was a failure to provide the grievant with "even rudimentary due process" and thus the grievant's "termination must be found to be without just cause" and Local 1170's grievance sustained.

In affirming the arbitrator's decision the Appellate Division noted that "It is well settled that judicial review of arbitration awards is extremely limited", citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, cert dismissed 548 US 940, explaining that a ruling by an arbitrator is reviewable only pursuant to CPLR §7511(b), which states in relevant part: "The award shall be vacated on the application of a party who either participated in the arbitration or was served with a notice of intention to arbitrate if the court finds that the rights of that party were prejudiced by . . . an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made."

When does an arbitrator exceed his or her power under the statute? When, said the Appellate Division, "his [or her] award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power", citing Kowaleski, 16 NY3d at 90 [also see Matter of Town of Tonawanda [Town of Tonawanda Salaried Workers Assn.], 160 AD3d 1477,  leave to appeal denied 32 NY3d 908].

Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact. Indeed, notes the decision, "An arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be", citing Matter of NFB Inv. Servs. Corp. v Fitzgerald, 49 AD3d 747. Further, said the Appellate Division, courts lack the power to review the legal merits of the arbitration award, or to substitute the court's judgment for that of the arbitrator, "simply because it believes its interpretation would be the better one."

Supreme Court had vacated the arbitrator's award after it determined that "the arbitrator exceeded a limitation on his power when he determined that the grievance was arbitrable." In the words of the Appellate Division, "Even if the court is correct that the issue of arbitrability was not before the arbitrator, [the Town] conceded on appeal that the grievance was arbitrable. Thus, even assuming, arguendo, that the arbitrator exceeded a limitation on his power, we conclude that [the Town] was not prejudiced by his determination. Absent a showing of prejudice, the court lacks the authority to vacate an arbitration award where, as here, the matter is before the court on the application of a party who participated in the arbitration."**

The Appellate Division said that Supreme Court also erred insofar as it vacated the award on the ground that the arbitrator exceeded a limitation on his power by adding a substantive provision that was not included in the CBA by reason of "the absence of a stand-alone article [in the CBA] pertaining to employee discipline."  However, the "for cause" language set out in the management rights provision relied upon by Supreme Court expressly circumscribed the Town's right to discipline or discharge the grievant and the arbitrator had interpreted that language, consistent with arbitral precedent, as incorporating "a just cause standard that encompasses a right to due process."

Finally the Appellate Division indicated that it had concluded that "the arbitrator merely interpreted and applied the provisions of the CBA, as [he] had the authority to do."

* At the arbitration hearing the chief of police testified that he had made the decision to terminate the employee before meeting with the grievant. In addition, the Town conceded  that the grievant was entitled to notice and a hearing pursuant to Civil Service Law §75, and that the Town had  failed to comply with that statute. 

** The Appellate Division also explained that Supreme Court further erred in determining that the arbitration award was irrational, indicating that "An award is irrational if there is no proof whatever to justify the award". Noting that a court must confirm the award where "the arbitrator offer[ed] even a barely colorable justification for the outcome reached," in this instance the Appellate Division described the arbitration award as a thoughtful, well-reasoned opinion and award based on the hearing testimony of the chief of police and the undisputed evidence in the record, concluding that the arbitrator's award was not irrational.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08775.htm

As a general rule, the determination of whether a person is “qualified” should be made at the time of the alleged discriminatory employment action

As a general rule, the determination of whether a person is “qualified” should be made at the time of the alleged discriminatory employment action

Smith v. Town of Ramapo, USSC, Second Circuit, Docket 18-148-cv*

The single issue before the court in this appeal was whether Raymond K. Smith’s inability to perform the essential functions of his job at the time of the alleged discrimination forecloses his claim of discrimination under §102(a) of the Americans with Disability Act [ADA].   

Due to an injury Smith could no longer work as a police officer and Ramapo approved his disability status under New York General Municipal Law §207-c.** Smith alleged that Ramapo treated him differently than nondisabled officers in violation of the ADA.   

After qualifying for §207-c disability benefits, Smith was not permitted to use vacation days he had previously accrued when working as a police officer; and, while disabled, Smith was unable to accrue new vacation time or to take bereavement leave. The district court concluded that Smith failed to plead a necessary element of his ADA discrimination claim, namely that he was qualified to be a police officer at the time of the alleged discrimination. The Circuit Court agreed, explaining that one of the elements of a claim under the ADA is that an employee was "qualified to perform the essential functions of his job, with or without reasonable accommodation."

Smith’s injury, however, severely limited the use of his arm and shoulder and left him unable to engage in many daily activities and nowhere in his complaint did he claim that following his injury he could have performed the essential duties of a police officer, either with or without a reasonable accommodation. 

Citing Stevens v. Rite Aid Corp., 851 F.3d 224, the Circuit Court noted that where a disability renders an individual unable to perform the essential functions of the job, "that disability renders him or her unqualified.”

Thus Smith’s failure to plead that he was qualified to be a police officer is fatal to his claim. Although Smith cited Castellano v. City of New York, 142 F.3d 58, in contending he was "qualified' to be a police officer at the time he earned certain benefits, and that he is entitled to those benefits under the ADA regardless of his ability to serve as a police officer at the time of the discrimination, the court said that "Smith misreads Castellano, and his claim was properly dismissed," noting that Castellano hold that retired employees who were qualified to perform the essential functions of their jobs while employed remain entitled to receive post-employment benefits. The general rule, said the Circuit Court, is that the determination of whether a person is "qualified" should be made at the time of the discriminatory employment action and Castellano created a narrow exception to the rule for post-employment benefits intended to be used by retirees.   

In any event, the court indicated Smith’s claims were not about post-employment benefits, or any benefit used by a former employee., nor did he allege that he was ultimately deprive of the value of any previously accrued benefit, such as a payout for his accumulated vacation days.   

As the Castellano’s exception does not apply in Smith's situation and because Smith failed to plead that he was able to perform the essential duties of a police officer at the time of the alleged discrimination, the court ruled that he "failed to state a claim for disability discrimination."

Click here to Read a FREE excerpt from Disability Benefits for fire, police and other public sector personnel in New York State.

* The decision noted that it is a "Summary Order" and rulings by summary order do not have precedential effect.

** §207-c  provides for the payment of salary and medical expenses to a police officer who is injured in the performance of his or her official duties.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/5c82839c-7f0a-452f-8af6-8449599f621b/8/doc/18-148_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5c82839c-7f0a-452f-8af6-8449599f621b/8/hilite/

An application for retroactive membership in a retirement system must be supported by substantial evidence

A public retirement system's denial of an application for retroactive membership in the System must be supported by substantial evidence

Sears v DiNapoli, 2018 NY Slip Op 08610, Appellate Division, Third Department

§803.a of the Retirement and Social Security Law [RSSL] addresses processing applications for retroactive membership in a public retirement system of New York State and provides, in pertinent part, that "A public retirement system shall have the authority to grant relief from a failure to file an application for membership in that system in connection with service rendered prior to April first, nineteen hundred ninety-three in accordance with the provisions of this [§803]."

Patricia Sears, a permanent employee of the Department of Taxation and Finance from November 1977 until her retirement in July 2015 was enrolled in ERS as a Tier 3 member. Prior thereto her permanent appointment in 1977, Sears had been employed by Tax and Finance as a seasonal employment on two occasions, initially from March 4, 1976 to June 30, 1976 and then again from January 6, 1977 until September 16, 1977. Prior to the commencement of her second temporary period of employment with Tax and Finance Sears signed a waiver dated December 28, 1976 acknowledging her right to join the Retirement System and elected not to do so.*

After RSSL §803 was enacted in 1993, Sears sought, but was denied, retroactive Tier 2 membership in ERS. Shortly before Sears retired in July 2015, she again sought to have her ERS membership in Tier 3 changed to a Tier 2 membership. Although ERS again denied Sears' request for Tier 2 membership, Sears challenged the decision via an administrative hearing and the Hearing Officer recommended Sears' application for retroactive Tier 2 membership be granted. The Comptroller rejected the Hearing Officer's recommendation and Sears filed an Article 78 petition challenging the Comptroller's determination.

The Appellate Division said the ERS conceded, and its review of the record confirms, that the underlying determination denying Sears' application to Tier 2 membership in ERS was not supported by substantial evidence. In words of the court, "As the Hearing Officer aptly observed, the waiver signed by [Sears] in December 1976 cannot be applied retroactively to encompass [Sears'] initial period of seasonal employment from March 1976 to June 1976, and Sears testified without contradiction that she was neither offered an opportunity to join nor declined membership in the Retirement System at that time."

The court explained that there was no information in Sears' personnel file regarding her membership options or opportunities when she was first hired in 1976, nor were there any current employees who could attest to the membership notification procedures that were in place when Sears was initially employed by Tax and Finance. Further, said the court, the documentary proof offered at the hearing was insufficient to establish, among other things, that Sears participated in a procedure that a reasonable person would recognize as an opportunity to join or decline membership in the Retirement System.

Accordingly, the Appellate Division annulled the Comptroller's determination, granted Sears application for retroactive Tier 2 status in ERS and remitted the matter to ERS "further proceedings not inconsistent with this Court's decision."

In contrast, in Schuyler v New York State and Local Employees' Retirement System, 158 AD3d 909, the Appellate Division ruled that a "lack of documentation, coupled with information suggesting that petitioner's services were performed as an independent contractor rather than a state employee, supports the Comptroller's denial of petitioner's request for additional service credit." 

* Frequently employees, other than employees in the Labor Class, eligible for membership in ERS but not required to become a member, declined becoming a member in order to avoid being required to make employee contributions to ERS and participating in Social Security [Federal Insurance Contributions Act (FICA)]. Employees in the Labor Class were required to participate in Social Security regardless of their membership in ERS.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08610.htm

Historical Note: Eligibility to participate in Social Security was made available to public employees of the State of New York pursuant to an agreement between the State and the Social Security Administration as authorized by §1 of Chapter 619 of the Laws of 1953. Members of a public retirement system in service prior to the effective date of the agreement decline to participate in Social Security. As to such individuals wishing to participate in Social Security, the employee could elect to either (a) pay the employee contributions for Social Security in addition to paying the required employee contributions for his or her membership in the retirement system or (b) elect to apply his or her required employee contributions for participation in the retirement system towards paying for his or her required employee contributions for his or her participation in Social Security.

Court address claims of breach of contract, negligent termination and defamation alleged by educator

Court address claims of breach of contract, negligent termination and defamation alleged by educator

Williams v. Buffalo Board of Education, et al, USCA, Second Circuit, Docket #17-3483-cv

Dr. Yamilette Williams, a school administrator, appealed a federal district court's ruling sustaining the Buffalo Board of Education's decision to terminate her from her position. Among the issues addressed by the Circuit Court of Appeals were Dr. Williams' claims concerning the Board's alleged breach of her contract resulting in her alleged negligent termination, and Dr. Williams' allegation that she was defamed by a member of the Board.

Breach of Contract

Addressing the alleged Breach of Contract, the court said that to plead a breach of contract claim under New York law, the plaintiff must allege (1) the existence of a contract; (2) his or her performance under the contract; (3) the defendants’ breach of the contract; and (4) damages.

Under New York law, said the court, "[t]he fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties’ intent.” A contract is the best source of the parties’ intent and “if an agreement is ‘complete, clear and unambiguous on its face[, it] must be enforced according to the plain meaning of its terms.’”

A district court may dismiss a breach of contract claim at the pleadings stage “only if the terms of the contract are unambiguous ... Whether or not a writing is ambiguous is a question of law to be resolved by the courts."

Negligent Termination

With respect to Dr. Williams' claims of having been subjected to "Negligent Termination," the Circuit Court indicated that "It appears that New York courts do not recognize such a claim."

The court then opined that even if such a claim existed under New York Law, Williams’s relationship with the District was governed by contract, and the well-established rule is that "a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated," citing Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382.

Defamation

Finally, with respect to the claims advanced by Dr. Williams' alleging that she had been defamed by a member of the Board, the Circuit Court observed that defamation involves “the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him [or her] in the minds of right-thinking persons, and to deprive him [or her] of their friendly intercourse in society.”

The elements of a defamation claim are "a false statement that is negligently, at minimum, causes harm, unless the statement is per se* defamatory" and only false statements of fact are subject to a defamation action. In contrast, said the court, "expressions of opinion are deemed privileged."

In the words of the court, "Determining whether a statement is one of fact or opinion requires consideration of several factors, including "the full context of the communication in which the statement appears ... whether the specific language in issue has a precise meaning which is readily understood and whether the statements are capable of being proven true or false.”

The Circuit Court also noted that “In an action for libel or slander, the particular words complained of shall be set forth in the complaint." In addition, the complaint also must specify “the time, manner and persons to whom the publications were made.”

The court then affirmed the district court's with respect to its dismissal of the issues alleging negligent termination and defamation.

The Circuit Court, however, remanded Williams’s breach of contact claim to the district court for its further consideration, explaining that given the present record, "it was error" for district court to conclude that Williams failed to satisfy a contractual provision obligating her to maintain professional certifications required by the Department of Civil Service or Department of Education, thereby obviating its finding that the Board did not violate the contract by terminating her.

* Court typically view "uttering a false and injurious statement" concerning an individual's sexual morality, he or she being guilty of a crime or being incompetent in his or her profession or trade as libel or slander per se. 

The decision is posted on the Internet at:

https://www.courtlistener.com/pdf/2018/12/12/williams_v._buffalo_board_of_education.pdf

Commissioner of Education lacks jurisdiction to consider appeals involving acts or omissions of post-secondary education institutions

Commissioner of Education lacks jurisdiction to consider appeals involving acts or omissions of post-secondary education institutions

Appeal of Diana Marie Van Vleet, Decisions of the Commissioner of Education, Decision No. 17,538

Diana Marie Van Vleet appealed an action of Molloy College, an institution of post-secondary education concerning Ms. Van Vleet's being given a failing grade in a course. 

The record before the Commissioner of Education indicated that at the time of the events described in this appeal, Ms. Van Vleet was enrolled as a student at Molloy College and here presents claims against Molloy College and several of its officers and employees asserting that she was improperly given a failing grade in one of her courses. 

The Commissioner said that Ms. Van Vleet's appeal must be dismissed as outside the jurisdiction of the Commissioner of Education in an appeal pursuant to Education Law §310.  The pertinent portion of Education Law §310 reads as follows:

"Any party conceiving himself aggrieved may appeal by petition to the commissioner of education who is hereby authorized and required to examine and decide the same; and the commissioner of education may also institute such proceedings as are authorized under this article. The petition may be made in consequence of any action: 7. By any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools."

In the words of the Commissioner, "[t]his grant of jurisdiction does not extend to acts or omissions of institutions of post-secondary education. The Commissioner explained that while the language of Education Law §310(7) “could literally, and if it stood alone, embrace much more than the common school classifications of the first six subdivisions, " the text do not stand alone and are "circumscribed and modified by the contextual words which precede and follow them.”

Citing Bd. of Educ. of City Sch. Dist. of City of Rome v. Ambach, 118 AD2d 932 and Application of Bowen, 17 AD2d 12, aff’d 13 NY2d 663, the Commissioner said courts have held that “the statute deals throughout with the common schools and, inferentially, ... it does not invest the Commissioner with carte blanche appellate jurisdiction in all controversies involving the Education Law,” the Commissioner dismissed Ms. Van Vleet's appeal.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume58/d17538

New York Public Personnel Law Electronic Handbooks

Proposed bills of particular interest to school administrators vetoed by the Governor

Proposed bills of particular interest to school administrators vetoed by the Governor

Source: Attorney Douglas E. Gerhardt, Harris Beach, PLLC

Douglas E. Gerhardt, Esq., a partner with the Harris Beach, PLLC law firm, has posted an article addressing two significant bills of interest to school administrators that were passed by the State legislature. One bill would have harmonized certain tenure laws, the second sought to remove the salary cap currently in effect applicable to BOCES superintendents. Both bills were vetoed by the Governor. 

Mr. Gerhardt discusses the impact of these vetoes on school districts and administrators in New York state public schools.

The article is posted on the Internet at:

https://www.harrisbeach.com/new-york-municipalities-blog/governor-vetoes-two-key-bills-for-school-administrators-in-final-hours-of-2018/?utm_source=Constant%20Contact&utm_medium=Email&utm_campaign=Blog&utm_term=vetoes%20for%20school%20districts&utm_content=Governor%20Vetoes%20Two%20Key%20Bills%20for%20School%20Administrators%20in%20Final%20Hours%20of%202018

Governor Cuomo Announces First Round Of Term 3 Administration Appointments

Governor Cuomo Announces First Round Of Term 3 Administration Appointments

Source: Office of the Governor

 

On January 4, 2019 Governor Andrew M. Cuomo announced the following new appointments to his administration.

 

Keith Corlett will be nominated Superintendent of the New York State Police. Mr. Corlett currently serves as Deputy Superintendent. He has served in the New York State Police in a variety of patrol, investigative and executive management roles for over 30 years, including as Assistant Deputy Superintendent, Troop Commander of Troop NYC and Acting Staff Inspector of Division Headquarters. He also serves on the State Police Executive Portfolio Review Board, the New York State Interoperable and Emergency Communications Board, the New York State Municipal Police Training Council. Mr. Corlett also previously served as Co-Chair of New York State Counter Terrorism Zone 4. Mr. Corlett holds a B.A. from the State University of New York at Stony Brook and a M.P.A. from Marist College. 

 

Linda Lacewell, Esq. will be nominated Superintendent of the New York State Department of Financial Services. Ms. Lacewell most recently served as Chief of Staff and Counselor to the Governor. In that role, she oversaw Executive Chamber operations, as well as ethics and law enforcement matters. Ms. Lacewell previously served as executive director of a cancer foundation initiative in Culver City, California. Prior to that, Ms. Lacewell served as Chief Risk Officer and Counselor to Governor Cuomo where she built and implemented the first statewide system for ethics, risk and compliance in agencies and authorities. Ms. Lacewell was formerly special counsel to the Governor, as well as the architect of OpenNY, a state-of-the-art open data initiative. She also served as special counsel to Attorney General Cuomo, where she oversaw the public pension fund pay-to-play investigation and the out-of-network health insurance investigation, both of which led to nationwide systemic reform. Prior to that, Ms. Lacewell spent nine years as an assistant U.S. attorney for the Eastern District of New York, including two years on the Enron Task Force, and received the Henry L. Stimson Medal and the Attorney General's Award for Exceptional Service. Ms. Lacewell earned her B.A. from New College of the University of South Florida and her J.D. with honors from the University of Miami School of Law. She clerked for a United States District Judge for the Southern District of Florida. She serves as an adjunct professor at New York University School of Law, teaching ethics in government, and previously served as an adjunct professor of law at Fordham University School of Law, teaching international criminal law. 

 

Michael Hein will be nominated Commissioner of the New York State Office of Temporary and Disability Assistance. Mr. Hein currently serves as Ulster County's first County Executive and was elected President of the New York State Association of Counties. Prior to that position, Mr. Hein served as the Ulster County Administrator and Deputy Treasurer. He holds a B.A. from Eckerd College.

 

Theodore Kastner will be nominated Commissioner of the New York State Office for People With Developmental Disabilities. Dr. Kastner previously served as the founder and President of Developmental Disabilities Health Alliance, Inc., an integrated primary care mental health practice for persons with intellectual and developmental disabilities. He was also the Director of the Rose F. Kennedy Children's Evaluation and Rehabilitation Center (RFK CERC) at Montefiore Medical Center and is Professor of Pediatrics and Professor of Psychiatry and Behavioral Sciences at the Albert Einstein School of Medicine where he also holds the Ruth I. Gottesman Chair in Developmental Pediatrics. Dr. Kastner earned his M.D. from the University of Connecticut School of Medicine and earned a Master of Science in population health from the University of Wisconsin. Dr. Kastner is board-certified by the American Board of Pediatrics in Pediatrics, Developmental and Behavioral Pediatrics, and Neurodevelopmental Disabilities and by the American Association for Physician Leadership as a Certified Physician Executive. Starting in 1976 as a Direct Support Professional with the Massachusetts Association for the Blind and Visually Impaired, he has worked in the field for more than 40 years. 

 

Lola W. Brabham will be nominated as a member of the Civil Service Commission and named President of the Commission. Ms. Brabham previously served as Acting Commissioner and Executive Deputy Commissioner of the Department of Civil Service. Prior, she served as Deputy Commissioner for Administration and Chief Financial Officer for the State Department of Labor and was Assistant Chief Budget Examiner for the State Division of the Budget. She was Assistant Secretary for Health, Medicaid and Oversight and Director of Human Services in the Executive Chamber under Governor David Paterson. She was also a Legislative Budget Analyst for the Assembly Committee on Ways and Means and, early in her career, was Chief of Staff to Assemblyman N. Nick Perry. Ms. Brabham has a dual B.A. in Criminal Justice and Sociology from the State University of New York and an M.P.A. from Rockefeller College of Public Affairs and Policy.

 

Erik Kulleseid, Esq. will be nominated Commissioner of the New York State Office of Parks, Recreation and Historic Preservation.  Mr. Kulleseid previously served as the Senior Vice President, Parks & Policy Program for the Open Space Institute. Prior, he was Deputy Commissioner for Open Space Protection for the Office of Parks, Recreation and Historic Preservation and served in a variety of roles at the Trust for Public Land for 13 years. Mr. Kulleseid holds a B.A. from Yale University, a J.D. from Stanford Law School and received a Master of Forestry from the Yale School of Forestry and Environmental Studies. 

 

Allen Riley is being designated as Chair of the State Commission of Correction.  Since April 2018, he has served as interim Chair which followed his appointment to the Commission in June 2017. Previously, Mr. Riley served as Madison County Sheriff for more than seven years. As Sheriff, he headed an agency with more than 160 employees, oversaw the Madison County Child Advocacy Center, which investigates child physical and sexual abuse cases, and served as a member of Governor Cuomo's Commission on Youth, Public Safety and Justice. Prior to being elected Sheriff, Mr. Riley was a 27-year veteran of the New York State Police, serving in Troop D as an investigator handling homicide and other serious cases and as a uniform trooper.  He was a narcotics detection and explosives detection K-9 handler and field training officer, among other duties. Mr. Riley served on the board of directors of the New York State Sheriffs' Institute, the New York State Association for Incarcerated Education Programs, and the Madison County Office of the Aging Advisory Council, among other positions.  He was twice named the American Legion Law Enforcement Officer of the Year in Madison County. He attended Morrisville State College (SUNY) and was the college's commencement speaker in 2014.

 

Mark Schroeder will be nominated to serve as Commissioner of the New York State Department of Motor Vehicles. Mr. Schroeder currently serves as Buffalo City Comptroller. Previously, he served in the New York State Assembly and Erie County Legislature. He earned a A.A.S. from Erie Community College and aB.S. from Empire State College. 

 

Caitlin Girouard has been appointed Press Secretary. Previously, she was Communications Director for U.S. Senator Amy Klobuchar, Deputy Chief of Staff and Communications Director for Congressman Sean Patrick Maloney and Communications Director for former Congressman Steve Israel. She received a B.A. in Political Science from the University of Notre Dame. 

Dana Carotenuto Rico, Esq. has been appointed Deputy Secretary for Legislative Affairs. Ms. Carotenuto Rico served in State Senate staff roles for over 10 years, most recently as Chief of Staff for the Senate Independent Democratic Conference negotiating the state budget and policy initiatives such as paid family leave, zombie property legislation and foreclosure protections. She holds a B.S.F.S from Georgetown University's School of Foreign Service and a J.D. from Brooklyn Law School. 

Kenita Lloyd has been appointed Assistant Secretary for Intergovernmental Affairs. Prior to this appointment, Ms. Lloyd served for four years as Senior Vice President for Development & External Affairs at the NYC Mission Society. At the NYC Mission Society, Ms. Lloyd led the fundraising and external affairs strategy for the 206-year-old antipoverty organization. Ms. Lloyd also previously served as Director of Development for the National Action Network.  Ms. Lloyd holds a M.P.A. from New York University's Robert F. Wagner School of Public Service and a B.A. from New York University's Gallatin School of Individualized Study.

   

Licha Nyiendo, Esq. has been promoted to Deputy Special Counsel for Public Integrity. Ms. Nyiendo previously served as Special Counsel for Ethics, Risk and Compliance at the Division of Homeland Security and Emergency Services. Prior, she was Security Counsel for Apple Inc.  She formerly was an Assistant U.S. Attorney for the Eastern District of New York and served as Deputy Chief of the Civil Rights Unit and Deputy Chief of the Narcotics Unit. Ms. Nyiendo holds a B.A. from Harvard University and a J.D. from Duke University.

 

Timothy Hartz has been appointed Director of Executive Operations. Mr. Hartz most recently served as a Special Assistant to President Obama and Deputy Director of Advance Operations for the White House. Previously, he served as the Director of Priority Placement with the Presidential Personnel Office and as the Director of Operations for the Department of the Interior. He holds a B.A. from Providence College. 

 

Barbara Rice has been appointed Assistant Secretary for Economic Development. Ms. Rice has had a distinguished career in local government and served as the first female Chair of the Franklin County Legislature. Previously, Ms. Rice has worked on land use planning and development in her role as a Commissioner on the Adirondack Park Agency and as a member of the NYS Fire Safety and Building Code Council. She received her BA in Business and Economics magna cum laude from SUNY Plattsburgh, a Post-Baccalaureate Certificate in pre-medical sciences from Bennington College, and her PA degree from Albany Medical College.

 

Barika X. Williams has been appointed Assistant Secretary for Housing. Prior to joining state government, Ms. Williams was Deputy Director with the Association for Neighborhood and Housing Development, where she led policy and advocacy efforts to secure and expand affordable housing and equitable economic development in New York City. She received her Master's in City Planning with a concentration in Housing and Economic Development from MIT's Department of Urban Studies and Planning and her Bachelor of Arts from Washington University in St. Louis. 

 

William Fisher has been appointed to the Joint Commission on Public Ethics. He fills the seat previously held by Gary J. Lavine, whose term expired on December 11th. Mr. Fisher previously served as Deputy County Executive for Onondaga County. Prior, he was the Co-Founder and CEO of Summit Software Company. Mr. Fisher holds a B.A. from Yale University and an M.A. from Syracuse University's Maxwell School of Citizenship and Public Affairs.