Considering applications for accidental disability retirement benefits

A state trooper [Petitioner] filed for accidental disability retirement and State Police disability retirement benefits alleging that he was permanently incapacitated as a result of injuries sustained to his back, neck and right shoulder in when, in the course of investigating a motor vehicle accident, another vehicle rear-ended the parked patrol vehicle in which he was sitting and propelled his vehicle into a concrete barrier.

  

The New York Stateand Local Police and Fire Retirement System denied both applications, Petitioner sought a hearing and redetermination. The Hearing Officer upheld the denial of Petitioner's applications and he filed an appeal to the State Comptroller. The Comptroller ultimately remanded the applications for further action to a different Hearing Officer, finding that the first Hearing Officer had failed to make findings on an issue of fact central to the question of whether Petitioner's injuries rendered him permanently incapacitated.

Following a second hearing, during which all evidence and testimony presented at the first hearing was admitted into evidence* and ultimately the new Hearing Officer concluded that Petitioner had failed to establish that he was permanently incapacitated as a result of his injuries and, consequently, denied both of applications for benefits submitted by Petitioner.

The Comptroller accepted the second Hearing Officer's findings and conclusions and Petitioner commenced a CPLR Article 78 proceeding challenging the Comptroller's determination. Finding that the petition raised the issue of whether substantial evidence supported the determination, Supreme Court transferred the proceeding to the Appellate Division pursuant to CPLR §7804[g].

The Appellate Division affirmed the Comptroller's determination explaining that the applicant for accidental or State Police disability retirement benefits bears the burden of establishing, among other things, "that he or she is permanently incapacitated from performing his or her regular job duties." Further, noted the court, the Comptroller is vested with "the authority to resolve conflicts in medical evidence and to credit the opinion of one expert over that of another, so long as the credited expert provides an 'articulated, rational and fact-based opinion, founded upon a physical examination and review of relevant medical reports and records'" and where the Comptroller's determination is supported by substantial evidence, it will be sustained.

In this instance the Comptroller credited the expert opinions of the Retirement Systems expert, a board-certified orthopedic surgeon who reviewed petitioner's medical records and conducted physical examinations of Petitioner and opined that petitioner was not permanently incapacitated because there were reasonably safe treatment options available** and later following a second physical examination of Petitioner, found that Petitioner's conditions "had resolved or were stable."

In contrast to what the Appellate Division described as the Retirement System's expert "articulated, rational and fact-based opinions," Petitioner's experts opined that Petitioner was permanently incapacitated. The Comptroller discounted Petitioner's experts opinions for various reasons and rejected Petitioner's citing determinations made by the Workers' Compensation Board and the Social Security Administration, explaining that the opinions of those entities "are not binding upon the Comptroller."

Deferring to the Comptroller's credibility assessments, the Appellate Division found that substantial evidence supports the determination that Petitioner failed to prove that his injuries rendered him permanently incapacitated and confirm the Comptroller's determination.

* The decision notes that at the second hearing Petitioner had consented to the admission of evidence from the first hearing and thus rejected Petitioner's contention that the Comptroller could not rely on certain reports in the record.

** See Matter of Mondello v Beekman, 56 NY2d 513, affirmed on opinion below at 78 AD2d 824. In this instance the individual's application for line of duty disability retirement was dismissed because the individual had failed to accept proper corrective medical treatment, including surgery..

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07662.htm

____________________

Disability Benefits for fire, police and other public sector personnel

An e-book addresses retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on  http://booklocker.com/books/3916.html

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The emerging urgency of mitigating environmental impacts and potential public health risks of the United States Postal Service

Below an abstract of an article by Dr. Robert Michaels [bam@ramtrac.com] recently published in the Environmental Claims Journal.  The full text of the article can be downloaded from ResearchGate.netat no charge, via the following URL:   https://www.researchgate.net/publication/323256797_The_Emerging_Urgency_of_Mitigating_Environmental_Impacts_and_Potential_Public_Health_Risks_of_the_United_States_Postal_Service.

Abstract¹

The privatized, ‘quasi-public’ United States Postal Service (USPS) is the largest commercial entity sending and delivering letters and packages. USPS vehicles drive a billion miles/year, visit 150 million addresses/day, and stimulate fossil fuel mining and vehicle pollutant emissions, with significant environmental impacts and potential public health risks. Sending and delivering therefore constitute excellent candidate activities for optimization to reduce USPS and overall impacts and risks, which depend upon spatial relationships of local post offices and mail recipients. Recipients may receive mail passively, or pick it up at their post office. Under the USPS business model, recipients lack economic incentive for the latter, even if their post office is situated along their daily travel route. USPS can incentivize such customers by dividing the price of postage between two parties: senders, covering delivery of individual pieces to recipients' local post office; and recipients, in the form of annual subscriptions covering delivery of mail to their local address. This alternative model would greatly reduce the price of postage for senders, increase the number of recipients picking up mail at a local post office box to avoid paying for delivery subscriptions, reduce USPS and overall impacts and risks, and possibly restore USPS business volume and profitability.

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

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1 Michaels, Robert A.  The emerging urgency of mitigating environmental impacts and potential public health risks of the United States Postal Service.  Environmental Claims Journal, 30(2), 142-50, doi: 10.1080/10406026.2018.1442077, online 9 March 2018.

Supervisor the target of employee's disrespectful and aggressive behavior

An employee was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he acted disrespectfully and aggressively towards his supervisor and caused disruption in the workplace. The worker denied any wrongdoing.

The appointing authority presented three witnesses who were present at the scene and all credibly testified as to employee's misconduct.

New York City Office of Administrative Trials and Hearing Administrative Law Judge Noel R. Garcia found that appointing authority proved that employee behaved in a discourteous manner towards his supervisor and caused disruption to the workplace.

The ALJ recommended that the employee be suspended without pay for ten days.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-2248.pdf

PERB's authority to initiate "jurisdictional deferral" and "merits deferral" in considering an improper practice charge filed pursuant to §209-a(1)(d) of the Civil Service Law

New York State[State] and the Public Employees Federation [PEF], representing state employees in the Professional, Scientific and Technical Services Unit, were parties to a collective bargaining agreement [CBA] from April 2011 to April 2015. Certain employees working at the Rochester Psychiatric Center [RPC], a treatment facility overseen by the Office of Mental Health were in the collective bargaining unit represented by PEF.

RPC had implemented a policy in 1982 whereby employees were not routinely required to submit doctor certificates for absences from work due to illness or injury, with the exception of six specified reasons that "management will require that a doctor's certificate be submitted." In December 2012, RPC's director of nursing sent an email to the entire nursing staff stating that the coverage needs of its patients required a change of policy and that "[l]ast minute call [ins] will require documentation supporting the [rationale] for the absence" for specified time periods during the 2012-2013 holiday season.

PEF filed an improper practice charge with Public Employment Relations Board [PERB] alleging that petitioner violated Civil Service Law §209-a(1)(d) by, among other things, unilaterally imposing a requirement that all employees submit medical documentation for unscheduled absences from work during the holiday season — a disciplinary work rule restricting employees' access to sick leave.

Ultimately PERB, relying [1] jurisdictional deferral and [2] a merits deferral, sustained an Administrative Law Judge's determination that State had violated §209-a(1)(d) and ordered, among other things, that RPC cease and desist from implementing the new requirement and State initiated a CPLR Article 78 proceeding seeking to annul PERB's determination.

With respect to PERB's jurisdictional deferral policy, the Appellate Division noted that "PERB has consistently interpreted Civil Service Law §205(5)(d) to deprive it of jurisdiction over failure-to-negotiate improper practice charges when the underlying disputes are essentially contractual, in favor of resolving the dispute through the parties' grievance-arbitration machinery, or resort to the courts. Where the CBA provides the charging party with a reasonably arguable source of right with respect to the subject matter of the charge, PERB "has either dismissed the improper practice charge outright or conditionally dismissed the charge pursuant to its jurisdictional deferral policy."

The CBA is silent on the issue of requiring doctor certificates for sick leave during the holidays -- the thrust of PEF's improper practice charge. As PEF alleged that State had violated statutory rights under §209-a(1) (d) by failing to bargain over a past practice that was not specifically covered by the CBA the Appellate Division concluded that "the matter is not a breach of contract dispute and PERB's jurisdictional limitation was not triggered."

As to PERB's declining to exercise a merits deferral, which, in contrast to a jurisdictional deferral, "utilizes agreed-upon binding arbitration to determine contractual grievances in furtherance of the stated goal of the Taylor Law to encourage employers and public employees to agree upon dispute resolution procedures, the Appellate Division held that PERB's action was proper. Further, explained the court, such a decision merely results in a conditional dismissal and the improper practice charge remains subject to being reopened before PERB after the conclusion of the arbitration process."

As the "merits deferral policy has been judicially recognized in the past and the courts have generally deferred to PERB's interpretation in this regard, the Appellate Division ruled that "PERB's decision not to invoke such policy here was proper under the circumstances."*

Noting that a public employer violates §209-a(1) if it alters a past practice** that impacts a mandatorily negotiable subject, the court explained that "it is well-settled that sick leave is a mandatory subject of negotiation" as are the "procedures and policies for granting or terminating sick leave are mandatory."

Here, said the Appellate Division, the record demonstrates that, subject to certain exceptions, since 1982 RPC did not routinely require an employee to submit a doctor's certificate for each instance of unscheduled absence and none of these exceptions related to the new restrictions that RPC imposed. As the State has not presented any evidence demonstrating that it negotiated with PEF prior to altering this policy, substantial evidence supports PERB's determination that a past practice existed and that the State engaged in an improper practice by failing to engage in collective bargaining prior to altering the past practice to require medical documentation for individual days of sick leave.

Accordingly, the Appellate Division ruled that PERB had properly granted a remedial order*** in this matter which, among other things, mandated that the State to "cease and desist from enforcing the change in policy, except as detailed in RPC's original written policy."

* In reviewing these issues, a court's inquiry is "limited to whether PERB's decision was supported by substantial evidence which, in turn, depends upon whether there exists a rational basis in the record as a whole to support the findings upon which such determination is based.

** For a past practice to be binding, the Appellate Division said the practice must be "unequivocal and continued uninterrupted for a period of time sufficient under the circumstances to create a reasonable expectation among the affected bargaining unit employees that the practice would continue."

*** The remedial order also required the State to "[m]ake unit employees whole for wages and benefits lost, if any, as a result of [petitioner's] implementation of the at-issue sick leave usage policy concerning Christmas and New Year's holidays, with interest at the maximum legal rate."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07670.htm

Napping during work hours

The appointing authority filed disciplinary charges alleging that an employee [1] failed to make required patrol checks at the work site and falsely reported that he performed the required checks on his screen station log sheet and [2] neglect of duty by sleeping in his car during his shift time, such acts or omissions being in violation of the Department’s Uniform Code of Discipline.

OATH Administrative Law Judge Joycelyn McGeachy-Kuls found the facility manager credibly testified that it was the practice to fill out the log sheet at the end of the shift and that he believed that the worker completed his checks at the required time.

Further, the ALJ concluded that the manager corroborated the worker’s testimony that he was on meal break and not required to be working when he was found sleeping in his car. It was not disputed that the employee was not required to perform work during their meal breaks even though they are paid during this break time. Credible testimony established that the employee was only required to keep his radios with him and stay on facility premises during the meal break. The ALJ found that the appointing authority has produced no evidence to establish that resting or even dozing off briefly during the meal break is prohibited or rendered the employee incompetent to perform his job.

Judge McGeachy-Kuls found that the appointing authority failed to establish that the employee engaged in the charged misconduct and recommended dismissal of the charges.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1451.pdf

New York courts lack subject matter jurisdiction to consider lawsuits involving disputes between and among rival factions of the Cayuga Nation

Certain members of the Cayuga Nation* [Petitioners] constituting one faction claiming authority to act on behalf of the Nation commenced this action, purportedly on behalf of the Nation, against certain individuals comprising a rival faction [Defendants] claiming similar authority.

To resolve these claims, said the Court of Appeals, New York courts would have to decide whether Defendants were, at various times, or remain legitimate leaders of the tribe, a question that turns on disputed issues of tribal law that are not cognizable in the courts of this state given the Nation's exclusive authority over its internal affairs.

Although Plaintiffs claimed otherwise, the court held that despite a limited recognition determination issued by the Federal Bureau of Indian Affairs [BIA] that recognized the Plaintiff faction as the tribal government for the purpose of distributing federal funds, it held that New York courts lack subject matter jurisdiction to consider this dispute, noting that The Nation relies on "the Council itself" and not any "written law, court, or body other than the Council . . . for resolving disputes that arise within the Council."

Noting that "Supreme Court reasoned that it lacked jurisdiction over the claims before it because 'the underlying allegations . . . are fundamentally founded upon the longstanding question of who has the right to lead the Nation' it could not adjudicate the dispute without interfering with tribal sovereignty and self[-]government'" and that the BIA urged the Nation to resolve the leadership dispute internally," reversed the order of the Appellate Division, with costs, "granted the motion to dismiss the complaint, and the certified question answered in the negative."

Opinion by Judge Feinman. Chief Judge DiFiore and Judges Rivera and Stein concur. Judge Garcia dissents in an opinion. Judge Wilson dissents in a separate dissenting opinion. Judge Fahey took no part.

*Footnote 1 in the court's decision states: "The Cayuga Nation is one of "[t]he [Six Nations of the Iroquois] Confederacy, or the Haudenosaunee' [People of the Longhouse], which refers to the historical alliance between the Mohawk, Oneida, Onondaga, Cayuga, Seneca, and Tuscarora Nations."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07711.htm

Publication of the findings made, and penalty recommended, after a disciplinary hearing by a New York City Office of Trials and Hearings Administrative Law Judge

At the close of a §75 disciplinary hearing held before the New York City Office of Trials and Hearings, the employee, a correction officer, moved to prohibit publication of the OATH Administrative Law Judge's report of findings and recommendation with respect to the penalty to be imposed, citing to §50-a of the Civil Rights Law. The correction officer contended that §50-a requires personnel records under the control of the Department of Correction be kept confidential.

OATH Administrative Law Judge Kevin F. Casey denied the correction officer's motion as untimely.

In addition, Judge Casey explained that [1] because OATH, as an autonomous agency and independent tribunal, its records are not under the control of Department of Correction and [2] the correction officer failed to overcome the broad presumption under the First Amendment in favor of public access to OATH proceedings.

The ALJ's ruling cites Matter of Victor v New York City Off. of Trials & Hearings, 174 AD3d 455, in which the Appellate Division held that Victor's claim that a disciplinary report and recommendation issued as the result of an OATH disciplinary hearing is confidential under Civil Rights Law §50-a was moot, explaining that "[f]or several years, the report has been publicly available from multiple sources, including the OATH and LEXIS websites" and as the court "cannot afford petitioner any meaningful relief," it dismissed Victor's appeal.

The decision is posted on the Internet at: 
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1663md.pdf.

______________

The Discipline Book

A concise guide to disciplinary actions involving public officers and employees in New York State. For more information click on http://booklocker.com/books/5215.html

______________

Human Rights Law as applied to independent contractors and immigrants.

Source: Jackson Lewis Newsletters 

New York City enacts legislation clarifying independent contractor protection under Human Rights Law

While courts have generally interpreted the New York City Human Rights Law as providing anti-discrimination protections to individuals performing services as independent contractors, effective in January 2020, amendments to the New York City Human Rights Law clarify such protections. Read full article ►

New York City issues new enforcement guidance on discrimination based on national origin, immigrant status

Continuing its pattern of issuing enforcement guidance on areas on which it focuses, the New York City Commission on Human Rights has released guidance reiterating the obligations of most employers, housing providers, and providers of public accommodations in New York City to avoid discrimination based on national origin and immigration status. Read full article ►

Dismissal during a probationary period

As a general rule, an individual appointed to a position on a permanent basis attains such status on the effective date of such "permanent appointment" but does not attain tenure in the position until [1] he or she satisfactorily completes his or her maximum period of probation or [2] by estoppel, acquisition, default, or otherwise by operation of law or [3] as the result of the appointing authority's lawfully truncating the individual's maximum period of probation. In addition, tenure may be acquired in consideration of certain military service performed during a probationary period or by other lawful process.

York v McGuire, 63 NY2d 760, sets out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

This limitation on summarily dismissing a probationary employee during the minimum probationary period is to provide the individual a minimum period of time to demonstrate his or her ability to satisfactorily perform the duties of the position. In contrast, should the appointing authority elect to terminate a probationary employee before he or she has completed the required minimum period of probation, the individual is entitled to administrative due process, i.e., "notice and hearing," otherwise to be accorded a "tenured employee."

Supreme Court denied the petition the filed the Plaintiff seeking to annul her former employer's [Respondent] determination terminating her probationary employment for unsatisfactory performance of her duties effective June 27, 2016 and granted Respondents' cross motion to dismiss the proceeding brought pursuant to CPLR article 78. Plaintiff appealed the Supreme Court's decision.

Affirming the lower court's ruling, the Appellate Division explained that Plaintiff's Article 78 petition was untimely as she had been terminated effective June 27, 2016 and she had until  October 27, 2016 to challenge Respondents' determination, but did not commence her Article 78 proceeding until June 16, 2017.*

Citing Kahn v New York Dept. of Education, 18 NY3d 457, the Appellate Division rejected the Petitioner's argument that the statute of limitations applicable to initiating a CPLR Article 78 action "was tolled  until the criminal charges against her were dismissed" as unavailing. Further, opined the court, Petitioner's failure to timely notify her Employer of her arrest, a violation of Employer's regulations, constituted a good faith basis for terminating her employment.

* The Appellate Division noted that the record shows that Petitioner was dismissed due to an unsatisfactory performance rating and because of her failure to immediately notify her supervisor of her arrest rather than because of the arrest itself, as she claims.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07321.htm

___________________________

The Discipline Book 

A concise guide to disciplinary actions involving public officers and employees in New York State. For more information click on http://booklocker.com/books/5215.html

___________________________

Fracking in New York State: weighing risks and benefits

Below an abstract of an article by Dr. Robert Michaels [corresponding  author,  bam@ramtrac.com] and Dr. Randy W. Simon published in the Environmental Claims Journal.  The full text of the article can be downloaded from ResearchGate.net at no charge via the following URL:   

https://www.researchgate.net/publication/336533285_Fracking_in_New_York_State_Weighing_Risks_and_Benefits

Abstract*

The controversial decision to ban fracking in New York State, most notably in the Marcellus Shale formation, was informed by global, national, state, and local issues that have general relevance. Without prejudging whether fracking can be undertaken safely, we discuss the science of fracking, focusing primarily on widely reported public health and environmental risks, especially those associated with greenhouse gas emissions. Based upon such concerns, any reconsideration of the fracking ban in New York should include, at a minimum, consideration of imposing public and environmental health risk management requirements as proven feasible and successful via industry experience. Fracking should be viewed as one choice among alternative energy strategies, all of which pose risks, rather than simplistically classified as either safe or unsafe. Assuming that our energy needs will continue to grow, our goal should be to guide the evolution of our energy portfolio toward sustainable sources as they emerge as feasible energy alternatives.

* Michaels, Robert A; and Randy W. Simon.  Fracking in New York State:  weighing risks and benefits.  Environmental Claims Journal, 29(4), 253-68, Fall 2017; doi  10.1080/10406026.2017.1372392; online 27 November 2017.

How to prevent job loss in the public sector

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The authority of an administrative agency to promulgate rules and regulations

The State University of New York Board of Trustees' Charter School Committee [SUNY/CSC], asserting that an independent licensure process was necessary to alleviate a teacher shortage at certain Charter School,  promulgated Regulations* that purported to establish an independent licensure process from that established by State Education Department and State Board of Regents [SED].

SED subsequently initiated a CPLR Article 78 action [Petitioner Proceeding 1] seeking to, among other things, a court order annulling the SUNY/CSC's regulations, contending that the Committee lacked such authority under Education Law §355(2-a), conflicted with Education Law article 56 [the Charter Schools Act] and other provisions of the Education Law, violated the separation of powers doctrine and were not promulgated in accordance with the State Administrative Procedure Act [SAPA].

In addition, a second Article 78 action was commenced by the New York State United Teachers [NYSUT], the United Federation of Teachers, Local 2 [UFT], the National Association for the Advancement of Colored People, New York State Conference [NAACP] and two teachers and a parent [Petitioner Proceeding 2].

Supreme Court granted the amended petitions/complaints, vacated the Regulations and enjoined their implementation. The court found, among other things, that the Education Department and the Commissioner have standing to bring the Article 78 action, that Education Law §355(2-a) does not authorize SUNY/CSC to promulgate regulations that alter minimum teacher certification requirements, and that the regulations were not promulgated in accordance with SAPA. SUNY/CSC [Respondents] appealed the Supreme Court's rulings.

Addressing the standing of SED to initiate the action in Proceeding 1, the Appellate Division, citing Matter of Graziano v County of Albany, 3 NY3d 475, observed that governmental entities have the capacity to sue only when it is based upon a "concrete statutory predicate ... expressly granted in enabling legislation or it may be inferred from review of the entity's statutory functions or responsibilities." The court then opined that "[p]ursuant to the Education Law, the Commissioner is required to "enforce all general and special laws relating to the educational system of the state and execute all educational policies determined upon by the [B]oard of [R]egents" (Education Law § 305 [1])" and "Education Law §308 provides that the Commissioner has the power and the duty 'to cause to be instituted such proceedings or processes as may be necessary to properly enforce and give effect to any provision in [the Education Law] or in any other general or special law pertaining to the school system of the state or any part thereof or to any school district or city.'"

Thus, the court concluded that the Commissioner, as the chief executive officer of the Education Department and the Board of Regents, has both express and implied capacity to bring Petitioner Proceeding No. 1.

In addition, however, to establish standing, a petitioner must show that it "ha[s] something truly at stake in a genuine controversy" by establishing "both an injury-in-fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated."  Petitioner  Proceeding 1, asserting that [1] the Commissioner has exclusive statutory authority to promulgate regulations governing the certification of public school teachers, to certify qualified individuals to teach in public schools, and to register teacher preparation programs in this state, [2] the Regulations promulgated by SUNY/CSC conflict with Education Law §§2854(3)(a-1) and 3602-ee, which require teachers employed in charter schools and charter school pre-kindergarten programs to be certified according to the same requirements that apply to other public school teachers, with certain limited exceptions, and [3] the Commissioner averred by affidavit that the Regulations promulgated by SUNY/CSC "usurp the Commissioner's authority, contravene the purposes and policies of the Charter Schools Act and Education Law §3004 and will injure Petitioners in proceeding No. 1 and the students whose education they are charged with protecting by permitting unqualified persons to teach in SUNY-authorized charter schools.

The Appellate Division held that these allegations were sufficient to establish that the claimed injuries fall within the zone of interests sought to be protected by the Education Law and that the Commissioner has suffered "direct harm," consisting of "injury that is . . . different from that of the public at large."

In contrast, with respect to the Petitioners Proceeding 2, the Appellate Division ruled that none of the employee organizations, the NAACP, the teachers or the parents alleged facts that would support a claim for standing with respect to Petitioner Proceeding 2 or advanced only "tenuous and ephemeral" claims insufficient to constitute injury in fact. In the words of the court, "on this record, none of these [parties] show[ed] that at least one of [their] members would have standing to sue," and we need not examine the other elements of organizational standing." Accordingly, said the court, "the amended petition/complaint in Proceeding No. 2 should have been dismissed."

Turning to the merits of Respondents' arguments in Proceeding No. 1, the Appellate Division explained that it is a basic principle of administrative law that an administrative agency has only "those powers expressly conferred by its authorizing statute, as well as those required by necessary implication." Noting that the Education Law does not define the word "operation" in the sense relied upon by Respondents, the court concluded that "[i]n the absence of a statutory definition, we construe words of ordinary import with their usual and commonly understood meaning" and in context, is " performance of a practical work or of something involving the practical application of principles or processes"**. This definition, opined the Appellate Division, with its emphasis on practical function, does not support Respondents' interpretation based on its argument that the operation or "practical work" of a charter school clearly includes the hiring and supervision of teachers "as such tasks are not the same as establishing requirements for the certification of teachers, which other public schools do not perform, and which involves policy determinations beyond a school's ordinary management and functioning."

Commenting that the Charter Schools Act consistently uses the word "operation" to refer to the practical administration, management and supervision of individual charter schools, the Appellate Division concluded that the inclusion of the word "operation" in Education Law §355(2-a) does not authorize the Committee to promulgate regulations pertaining to teacher licensure and certification.

In addition, the court found that the Regulations were in conflict with provisions of the Education Law that authorize the Commissioner to prescribe regulations governing the certification of teachers and that require most teachers in charter schools and pre-kindergartens to be certified in the same manner as other public school teachers.

Considering the guidelines first established in Boreali v Axelrod, 71 NY2d 1, the Appellate Division said it agreed with Supreme Court that the regulations "constituted a product of improper legislative policymaking by an administrative agency" and the Respondents in Proceeding 1 had violated SAPA by making "substantial revision[s]" in the proposed regulations before their adoption without a notice of revised rulemaking and an opportunity for additional public comment.

* 8 NYCRR 700

** (Merriam-Webster Online Dictionary, [https://www.merriam-webster.com/dictionary/operation])

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07458.htm